iKPN Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEnoRY OP JUDUB DOUGLASS BOARDMAN FIRST OEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KFN5057.R212 Annual digest of New York dwlsto^^^^^^ 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/cu31924017679881 ANNUAL DIGEST OF NEW YORK DECISIONS COMPRISING -Z^!-.!-. THE! C-^SBS REPORTED IN THE OFFICIAL, AND STANDARD SERIES OF REPORTS DURING THE YEAR 1881 TOGETHEE WITH A Table of Cases Afarmed, Applied, Approved, Commented On, Compared, Changed by Statute, Denied, Disapproved, Distinguislied, Doubted, Explained, Followed, Limited, Modified, Not Followed, * Opposed, Overruled, Questioned, Reconciled, Reversed, or Otherwise Criticised by Subsequent Decisions. VOLUME I., BEING SUPPLEMENTAL TO VOLUME II. OP THE New York Reference Digest. BY STEWART ^RAPALJE. JEESEY CITY: Frederick D. Linn & Company, Law Publishers. 1882. Entered according to Act of Congress, in the year one thousand eight hundred and eighty-two, by STEWAKT KAPALJE, - in the Office of the Librarian of Congress, at Washington. PREFACE. The rapid accumulation of decisions, and consequent frequent issue of volumes of official and standard reports, not only furnishes a sufficient reason for the pub- lication of an annual digest of New York cases, but, in the compiler's judgment, and that of many practitioners whom he has'consulted, renders such a book, if properly prepared, an absolute necessity. As this work is designed to be one of permanent value, it is intended to ex- clude from it, as far as possible, duplicate reports or extracts from the same case. For this reason the cases briefly reported in the Weekly Digest and those pub- lished in the Daily Kegister, which, if of any value, subsequently appear in nearly every instance in one or the other of the series of official or standard re- ports, are excluded until they so appear, thus avoiding much confusion and the heavily padding of one volume with a repetition of a large amount of matter which, taken from an inferior source, has already appeared in its predecessor. That this book will be found to be acceptable to the profession, is the earnest hope of the editor, and the very flattering reception accorded to volume two of the Beference Digest (which covered the briefest period of time ever before deemed suf- ficient to afford materials for a digest of New York decisions) encourages him to believe that it will. STEWAET EAPALJE. New Yobk, March 20th, 1882. iii REPORTS EMBRACED. Abbott's New Cases "Vols. 8,* 9. Howard's Pbactice Reports " 59,* 60, 61. Hun's Supreme Court Reports " 21,* 22, 23, 24. New York Reports " 79,* 80, 81, 82, 83, 84. Civil Procedure Reports Vol. l.f Redfield's Surrogate Reports " 4. Superior Court Reports " 46. Total, 18 volumes. *A few oases contained in the 8th Abbott, 59th Howard, 21st Huu and 79th New York, which could not be included in Volume II. of the New York Reference Digest, owing to the advanced stage of the preparation of that work when these volumes were issued, are also digested in this volume, in order to preserve the con- tinuity of the work. tThe first four numbers, or parts, pp. 1-336, only. ANNUAL New York Digest. A. ABANDONMENT. Divorce ; Husband and Wife ; Insukance. ABATEMENT AND REVIVAL. I. Gbotjnds of Abatement ; and how Pleaded. II. Reyival. Continuance. I. Grounds op Pleaded. Abatement ; and how 1. Death of party plaintiff. The death of the plaintiff (a widow suing to recover a gross suiti in lieu of dower), after the oral announce- ment of the decision of the court in her favor, does not abate the action nor alter the rights of the parties ; and the court wUl, in such case, order findings to be signed and judgment en- tered nunc pro tune. — Supreme Ct., (Sd Dept. Sp. T.,) Jam., 1880. Fulton v. Fulton, 8 Abb. N. Cas. 210. 2. — of party defendant. An action by a father to recover the damages occasioned by the seduction of his daughter, is an action on the case in tort, and is abated by the death of the defendant, and cannot be revived against his executors or administrators. — Supreme Ct., (Zd Dept.,) Nov., 1880. HoUiday v. Parker, 23 Hun 71. 3. That under the Revised Statutes and Code of Civil Procedure an action of replevin does not abate upon the death of a sole defendant, see Roberts v. Marsen, 23 Hun 486. 4. Necessity of answer or demurrer. The defence 6f the pendency of another action must be taken by answer or demurrer ; if not so taken, it will be deemed to have been waived. — Supreme Ct., (4iA Dept.,) June, 1880. Rem- ington V. Walker, 21 Hun 322. . 5. Form and requisites of answer. An answer admitting a certain sum to be due by defendant, but alleging as a reason for non- payment, that a third party has attached the indebtedness in an action against plaintiff, that said action " has since been pending " and that the defendant has never been released from its obligations by reason of such levy, is insuffi- cient, and does not constitute a bar to the recov- ery of the amount, on motion, under Code of Civ. Pro., § 511. The answer should state that said attachment and levy are still in foTce.— Superior Ct., Feb., 1880; Marsh v. West, &c., Manuf. Co., 46 Superior 8. 6. Proof of matter in abatement. Where the answer sets up as a defence a final settlement and adjustment of the plaintiff's claims in a proceeding had in another court, proof of a proceeding then pending in that court is inadmissible. Remington v. Walker, swmxi,. 7. "Waiver of matter in abatement. When, after the death of a sole defendant in an action of replevin, his administrator has, by an order entered upon the written stipulation of the parties, been substituted in his place, and the parties have thereafter voluntarily appeared before the court and proceeded with the trial, it is too late for the plaintiff to apply for leave to discontinue the action on the ground that it abated by the death of the defendant. — Supreme Ct., (ith Dept.,) Jan., 1881. Roberts v. Marsen, 23 Hun 486. II. Revival. Continuance. 8. Interpreting the statutes. Code of Civ. Pro., 5 1736, continuing an action of re- plevin, notwithstanding the death of either party, in favor of or against his executors or administrators, applies only to actions in which the sole defendant was living on September 1st, 1880, and is not retroactive. — Superior Ct., (Sp. T.,) Feb., 1881. Burnham v. Brennau, 60 How. Pr. 310. 9. It seems that the effect of the provision of the Code of Civil Procedure (g 757, as amended by Laws of 1879, ch. 542,). requiring the court, on motion, to revive an action " in case of the death of a sole plaintiff or a sole de- fendant," where "the cause of action survives or continues," is to take away the discretion which the court previously had, either to grant (1) ABATEMENT AND REVIVAL, II. leave or to put the party to his bill of revivor, and requires that the relief shall be granted on motion, making the motion a complete substi- tute for the bill— a of App., Nov., 1880. Coit I. Campbell, 82 N. Y. 509. 10. But the provision does not compel the granting of the motion in all cases ; it simply requires that, where the party has the right to a revivor or continuance, the relief shall be granted on motion. lb. 11. This right is to be determined according to the settled rules of equity, so far as estab- lished by precedent. lb. 12. It is a rule of equity thus established, that the discretion of the court to refuse to revive a suit on the ground of delay, is to be guided by the statute of limitations applicable 1 to the subject matter of the suit. lb. 13. What causes of action sur- vive. In an action against a plumber, for negligently and improperly making repairs in plaintifi's house, so as to allow gas to escape from the sewer into the house, and to seriously injure the health of plaintiff and his family, the complaint further alleged that, in addition to the said injuries, the plaintiff's five children were sickened and poisoned by the said gases ; that three of them died, after a protracted ill- ness, and that the plaintiff was put to great trou- ble and expense to provide necessary care, nurs- ing and medical treatment, both for himself and his said children. The defendant having died after issue joined, plaintiff moved to have the action revived against his executrix, and for leave to serve a supplemental complaint. Hdd, that in so far as the action was brought to re- cover damages for the injuries occasioned to plaintiff's person, it abated by the death of de- fendant, but that in so far as it was brought to recover for the damages and expenses occasioned by the sickness of his children, it survived, and should be revived against the defendant's ex- ecutrix. Supreme Ol., (1st Dept.,) May, 1881. Scott V. Brown, 24 Hun 620. 14. "Who is the successor in interest. The "successor in interest" referred to in section 757 of the Code of Civil Procedure, in relation to the survival of a cause of action, is one who suc- ceeds to the subject matter of the action, the property, rights or interests which were the subject of the action, as distinguished from ordinary money demands which continue against the personal representative of the deceased. — Supreme Ct, {Isl Dept. Sp. T.,) May, 1881. Green v. Martine, 1 Civ. Pro. 129. 15. Oontinuing in case of death of party plaintiff. This action was commenced by one M. to recover certain real property, to- gether with damages for the withholding thereof. After the joinder of issue herein, M. died, leaving a will, by which he devised one- third of his property to his wife, the plaintiff, and the other two-thirds to his minor children. Thereafter, an order was made reviving and continuing the action in the name of the plaintiff, individually, and as guardian in socage of the children, in the place and stead of the original plaintiff. In an amended answer served by the defendants, no specific objection to the right of the plaintiff, -as guardian in socage for her children, to have the action so revived and continued, was taken. Held, 1. That as no appeal had been taken from the order so reviving and continuing the action, the case stood as though the action had been originally commenced by the plaintiff, to recover in her own right the part of the premises devised to her, and as the guardian in socage of her children, the part devised to them, and that such an action was clearly maintainable. 2. That the court had, under 3 Rev. Stat. (6th ed.,) 575, and Code of Civ. Pro., ? 757, power to so revive and continue the action. — Supreme Ct. (3d Dept.,) Sept., 1880. More v. Deyoe, 22 Hun 208. 16. — of party defendant. Where all of several defendants but one have died, and the right of action has survived against him, he is a sole defendant within the meaning of Code of Civ. Pro., 2 757, as amended by Laws of 1879, ch. 542; and upon his death, the action may be revived against his representa- tives. Coit V. Campbell, supra. 17. It is, however, only to the case of a sole defendant that said provision applies, and the action can be continued under it only against the representatives or successors in interest of such sole defendant. lb. 18. Where an action which sought an ac- counting and recovery of a balance due was revived against the executors of the testator ; and, after such revivor, the plaintiff moved to bring in the devisees and heirs-at-law, and to revive and continue the said action agaiast them, on the ground that the personalty would not be sufficient to satisfy the Judgment, if re- covered — Held, that as the action did not seek to charge the testator's real estate, it was com- pletely revived when the personal representa- tives of the testator were made parties, and that the devisees and heirs-at-law should not be made parties to the action. — Supreme Ct., {1st Dept. Sp. T.,) May, 1881. Green v. Martine, 1 Civ. Pro. 129. 19. — of party defendant, sued in Marine Court. While, under the Code of Procedure (^? 58, 46, 47 of Code of 1848 ; U 65, 53 and 54, Code of 1849,) an action could not be brought in the Marine Court of the city of New York against an executor or administrator as such, yet, where after the court had acquired jurisdiction of an action, the defendant died, the action did not abate, but could be continued against his personal representatives. — Ct. of App., Sept., 1880. People, ex rel. Egan, v. Justices of Marine Court, 81 N. Y. 500 ; S. C. 8 Abb. N. Cas. 377 j 59 How. Pr. 413 ; reoerdng 18 Hun 333. 20. This rule is not changed by the Code of Civil Procedure, as, while a similar prohibition is contained therein (§ 316, subd. 3,) the pro- visions for continuing actions (?§ 755, 756, 757) are made applicable to the Marine Court, (Laws of 1876, ch. 449, 2 5, as amended by Laws of 1877, ch. 318, I 5,) and the law stands as it did under the former code. lb. 21. Time for applying to revive. Under Code of Civ. Pro., g 757, as amended in 1879, providing that " in case of the death of a sole plaintiff or defendant, if the cause of ac- tion survives or continues, the court must, upon a motion, allow or compel the action to be con- tinued, by or against his representative or suc- cessor in interest," it is the duty of the court to continue the action, if it survives or continues without regard to whether or not the applicant has been guilty of laches in making the mo- ABATEMENT AND REVIVAL, II.— ACCOUNTS. t\Qn.—Sii/preme Ot., (Isi Dept.,) May, 1880. Greene v. Marline, 21 Hun 136. 22. Eflfeot of revival. The revival of an action does not necessarily carry with it the whole of the prior right of action. — Ct. of App., Jan., 1881. Cregin v. Brooklyn Crosstown B. E. Co., 83 N. Y. 595; revernng 19 Hun 341. 23. Where a right of action for damages which can survive involves, mingled with, but separable from such damages, other damages of a character that die with the party, the revival of the action does not draw the latter with it and permit a recovery therefor. lb. 24. Upon the death of the plaintiff, in an action by a husband for a wrongful injury to the person of his wife, the right to damages for loss of the wife's services and the expenses ne- cessarily incurred by reason of the injury, sur- vive to his personal representatives, as they are a pecuniary loss diminishing his estate; but the right of action for the loss of the society of his wife, and the comforts of that society, dies with him. Upon revival of the action, there- fore, only the damages that so survive are re- coverable, lb. For decisions upon the abatement of a Legacy, see Legacies ; of a Nuisance, see Nuisance ; of a Tax, see Taxes, V. ; as to Plem in Abatement, see also Pleadino. ABORTION. Cbiminai. Law, 4. ABSENT AND ABSCONDING DEBTORS. Attachment. ACCESSORIES AND ACCOMPLICES. Ckiminai, Law, 2 ; Witnesses, III. ACCORD AND SATISFACTION. Debtor and Cbeditob, IIL ACCOUNTING. 1. By personal representatives. The provisions of the, Revised Statutes, in reference to the accounting of administrators, were not repealed by the act of 1865, (Laws of 1865, ch. 733,) providing for the accounting of an exec- utor or administrator who has been removed, on the application of his successor. — Gt. of App., Sept., 1880. Gerould v. Wilson, 81 N. Y. 573. 2. The rendering of an account to a, surro- gate by an executor or administrator, and the ' settlement of the account, after it has been ren- dered, are separate and distinct proceedings. Sup. Ct., (ith Dept.,) Jv/ne, 1880. — Eemington v. Walker 21 Hup 322. 3. What are proper charges and credits on the final accounting of an executor or adminis- trator, see Matter of Boyd, 4 Eedf. 154 ; Matter of Nichols, Id. 288; Wright v. Wright, Id. 345 ; Underbill v. Newberger, Id. 499. 4. As to granting allowances to counsel on the final accounting of an executor, see Osborne V. MoAlpin, 4 Eedf. 1. 5. Procedure in action for an ac- counting. When, in an action for an account- ing in equity, the court will allow damages for a lailure of defendant to perform the contract to be recovered on, see Bonn v. Steiger, 21 Hun 219. 6. Appeal — effect of reversal. When an action is brought for an accounting, and judgment is rendered dismissing the complaint on the ground that there has been an account- ing by the defendant, which is binding and conclusive on the plaintiff, and adjudging that defendant recover for the amount found due him on such accounting, the effect of a reversal of such judgment is, that upon these facts ap- pearing upon the trial, the plaintiff was entitled to an accounting, and to the payment of such sum as on such accounting he might be found entitled to. — Superior Gt., Feb., 1880. East v. Hauselt, 46 Superior 23. As to accounting by Personal representatives, partners, trustees, guardians, &c., see also KxBC- UTORS AND Administrators ; Guardian and Ward; Partnership; Trusts. ACCOUNTS. 1. Accounts stated. To maintain an action upon an account stated, it must appear that the account has been balanced and rendered, with an assent on the part of the defendant either express or fairly implied, to the balance. — Ct. of App., June, 1880. Volken- ing V. De Graaf, 81 N. Y. 268. 2. Where, in such an action, plaintiff failed to show any assent, express or , implied, on the part of defendants, that they were indebted to plaintiff in the balance claimed, and no amend- ment of the pleadings was asked — Held, that a dismissal of the complaint was proper, although there might have been some evidence of in- debtedness, lb. ACCUMULATION. Devise; Legacies; Wili-s. ACKNOWLEDGMENT. Of Deeds, see Deeds ; of Mortgages, see Mort- gages ; by Married Women, see Husband and Wife OUDebt, to remove bar of statute of limita- tions, see Limitations op Actions, V- ACTION. ACQUITTAL. Effect of former, see Judgment, III. When proper, see Teial, VIII. ACTION. 1. Local and transitory actions. Ac- tions are local when their cause is in its nature local, and transitory when the transactions on which they are founded might have taken place anywhere. The distinction in no way depends on the character of the action as being one of common law or equitable jurisdiction. — Superior at., Dec., 1880. Atlantic, &c.. Telegraph Co., v. Baltimore, &c., E. E. Co., 46 Superior 377. 2. When the court, acting on the person, compels a. thing to be done, (which could be done anywhere), though the doing of the thing might produce effects and results in a state, &c., other than that in which the court had jurisdic- tion, or , though the inquiry as to whether the doing of the thing should be com'pelled or not, involves a question as to the title to lands situated in another jurisdiction, the solution of which may even constitute the essential point on which the case depends, the action is not local. lb. 3. So also where the court, acting on the person, enjoins the doing of certain acts in the state in which it has jurisdiction, although such injunction may prevent the doing of certain acts in another state (which could not be directly enjoined against by it), which would otherwise have taken place as resulting from the act enjoined against, the action is not local. lb. 4. Statutory actions. Where a new right is given by statute, and a specific relief prescribed for its violation, the remedy is con- fined to that given by the statute — Ct: of App,, April, 1880. Jessup v. Carnegie, 80 N. Y. 441. 5. "What causes of action may not be joined. Causes of action for conversion and wrongful detention of personal property, and for an accounting, cannot be joined in the same complaint.-^^&preme Ct., {lat Dept. Sp. T.,) June, 1881. Thompson v. St. Nicholas Nat. Bank, 61 How. Pr. 163. Nor can causes of action for false imprison- ment and malicious prosecution. — (hm. Pleas, (Qen. T.,) JwTie, 1881. Nebenzahl ?;. Townsend, 61 How. Pr. 353. 6. A cause of action for malicious trespass by the original defendants in the erection and continuance of brick stacks, and another for the removal of such stacks and for an injunc- tion against their maintenance and continuance, cannot be joined as against the successors in interest of the original defendants, who are made parties by a supplemental complaint re- viving the action. — Supreme Cl., (Sp. T.,) March 1881. Equitable Life Assurance Soc. v. Scher- merhorn, 60 How. Pr. 477. The two causes of action do not affect all the parties to the action, as required by Code of Civ. Pro., § 484, as the new parties cannot be charged in tort. lb. 7. "WTiat actions are founded in con- tract. The fact that there are allegations of fraudulent representations in a pleading does not necessarily fix the character of the ^tion as one ex delicto.— Ct. of App., Dec, 1880. Spar- man V. Keim, 83 N. Y. 245. 8. Plaintiff's complaint alleged in substance that he was an infant ; that induced by false and exaggerated representations of the defendant as to the profitable nature of his business, to wit, " that it would yield large profits," he was in- duced to become a partner, and invested $1000 therein ; that becoming satisfied of the falsity of the representations, he demanded his money back, which was refused, and he asked judg- ment for the amount. The only representation proved on the trial was "that it was a good paying business." The plaintiff was nonsuited on the trial, on the ground that the cause of action stated in the complaint was in tort. Held, error ; that the allegations of the complaint made a good cause of action on contract, as the agree- ment of partnership was one an infant could avoid, and having done so, plaintiff was en- titled to recover back hi" money, less what he had received from the partnership. lb. 9. Election bet-ween causes of ac- tion. When a complaint contains two causes of action, resting upon substantially the same facts, in one of which the defendant is sought to be made liable in one character, and in the other in another character, a case is presented where a motion made at the trial, to compel an election, should be granted. — Superior Ct., Feb., 1880. Eoberts v. Leslie, 46 Superior 76. 10. Election once made, final. Where, in the pleadings and upon the trial, the plaintiff avers a cause of action ex delicto, he cannot, in an appellate court, abandon that claim and have a reversal of judgment, because if he had asked for a judgment ex contractu it might properly have been rendered. — Ct. of App., Dec., 1880. Lockwood V. Quackenbush, 83 N. Y. 607. S. P., People V. Dennison, 84 Id. 272. 11. Appearance; Tvhat amounts to. What is such an appearance by the defendant in an action brought by the attorney-general to wind up an insolvent insurance company, as will cure irregularities, on motion for the ap- pointment of a receiver, see People v. Globe Mutual Life Ins. Co., 60 How. Pr. 82. 12. When appearance will not cure ■want of process. An attachment which has become invalid by reason of the failure of the plaintiff to serve the summons, either per- sonally or by publication, within thirty days from the time it was issued, is not revived and rendered valid by the subsequent appearance of the defendant in the action. — Supreme Ct., (1st Depi.,) Sept., 1880. Blossom v. Estes, 22 Hun 472. 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 ; also, the titles of the domestic and legal re- lations. As to Special Proceedings, see that title, and the references there given. ADMINISTRATORS. EXECTJTOKS AND AdMINISTKATOBS. ADVANCEMENT— ADVERSE POSSESSION, I., II. ADMISSIONS. When admissible, and their Effect as evidmee, -see Evidence, III. Effect of, in Pleading, see Pleading, VI. When raise equitable Estop- pel, see Estoppel, IV. Of Agent, to bind principal, see Insurance, VI. ; Pkincipal and Agent, III. ADULTERY. A.S ground for Divorce, see Divorce, II. ADVANCEMENT. 1. Interpreting the statutes. Under the provision of the statute of distribution in reference to advancements (2 Eev. Stat. 97, § 76,) the descendants of a child of an intestate, who died before him, are entitled, on the final distribution of his estate, when it consists ex- clusively of personal property, to the benefit of advancements made by him in his life time to his other children, and such advancements are to t>e taken into consideration in determining the (listribntive shares — Ct. of App., Dec, 1879, Beebe v. Estabrook, 79 N. Y. 246. 2. The w. Oyer & T., Feb., 1881. People v. O'Keilly,* 9 Abb. N. Cas. 77. 2. Requisites and sufflcienoy. Where a paper, purporting to be an affidavit taken in a judicial proceeding, indicates tlie proceeding in which it is made, has a proper venue, is sub- scribed by the deponent, and has a jurat in the usual form, signed by an officer having due authority to administer an oath, the omission of the name of the deponent in the body of the instrument is not, as a general rule, a fatal defect, and the paper is effectual as an affidavit. —Gt. of App., April, 1880. People, ex rel. Kenyon, i;. Sutherland, 81 N. Y. 1. *Re versed in Court of Appeals, but not on this point October, 1881. See 3 Onm. Law Mag, 85. ' 3. The test of the legal sufficiency of the paper is, would an indictment for perjury lie against the person who signed and swore to it, if it was willfully false? An officer may re- ceive and give credence to any paper upon which an indictment for perjury would lie and be maintained. lb. 4. It seems, however, that where the affidavit, to be effectual, must be made by one having and acting in a certain character, or personal capacity, the paper should state the name of the deponent, and that he has that character or capacity. lb. 5. Necessity of afladavit of merits. An affidavit of merits is still necessary upon motions by defendant before answer. Such an affidavit must be made by the party, except upon an application for further time to plead.-^&i- prems «., (1st Dqjt. Sp. T.,) Nov., 1878. Bing- ham V. Bingham, 1 Civ. Pro. 166. 6. Sufficiency of affidavit of merits.^ An affidavit of merits in which the defendant states that " he has a good and valid defence to the whole of the plaintiff's claim as set forth in said complaint, upon the merits thereof," is defective and insufficient. It should state that the defendant " has a good and substantial de- fence on the merits in this cause." — Supreme Ct., (ith Dept.,) Jan., 1881. State Bank of Syracuse V. Gil), 23 Hun 406. "7. An affidavit is also defective which fails to state that the counsel, whose advice is sworn to, is the counsel of the defendant in the action in which the affidavit is made. lb. 8. Stating facts on information and belief. Facts stated upon information and belief are evidence where the sources of his information are given by the affiant, and alsa sufficient excuse for not obtaining the affidavits of the informants. — Marine Ct., Sept., 1880. Wentzler v. Eoss, 59 How. Pr. 397. 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 Orders; also Abeest ; Attach- ment; Certiorari; Contempt; Depositions; Discovery ; Execution, V. ; Injunction ; Landlord and Tenant, IV. ; New Trial ; Process ; Trial, II:, III. As to their admissibility in evidence, se& Evidence, IV. AGENCY. Principal and Agent. AGREEMENTS, Contracts. ALBANY. For cases interpreting the city charter, or otherwise limited in their application to the municipality of Albany, see Municipal Cor- porations, V. ALIENS— AMENDMENT. ALIENS. 1. Devises to aliens. Under the provi- sion of the act of 1845, to enable resident aliens to hold and convey real estate, (Laws of 1845, ch. 115, § 1,) which provides that a resident alien to whom any real estate had been or should thereafter be devised, might, on filing the deposition of intention to become a citizen, etc., prescribed by 1 Eev. Stat. 720, J 15, hold the real estate the same as if he was ^a citizen at the time of the devise, a resident alien devisee of a citizen takes, upon acceptance of the devise, a conditional title, absolute as against the heirs of the testator, but defeasible by the state until he complies with the conditions as to aliens. — Ct. ofApp., June, 1880. Hall v. Hall, 81 N. Y. 130, 137; 2. The provision, therefore, of the statute of wills, (2 Eev. Stat. 57, § 4,) declaring a devise to one who, at the time of the death of the tes- tator, is an alien, to be void, was taodified by the said act in this respect. lb. 3. The said act of 1845 is not retrospective solely; it applies to aliens who have become residents of this state subsequent to its pas- sage. 1 b. 4. Inlieriting by aliens. The words " resident alien," in the provision of the act of 1845, § 4, above mentioned, which enables those answering the description of heirs of a deceased alien resident to take, whether they are citizens or aliens, do not include or desig- nate a, naturalized citizen. — Ct. of App., Feb., 1880. Luhrs v. Eimer, 80 N. Y. 171. 5. The incapacity, therefore, of alien heirs of a naturalized citizen, who died intestate, to take lands of which he died seized, was not removed by that statute. lb. 6. So, also, the alien children of a deceased brother or sister of 'the intestate, who was an alien, are not within the provisions of the stat- ute (1 Bev. Stat. 754, ^ 22,) which saves a per- son " capable of inheriting," from being barred of the inheritance by reason of the alienage of any ancestor. Alienism is an impediment to taking lands by descent only when it comes between the stock of descent and the person claiming to take ; if some of the persons who answer the description of heirs are incapable of taking by reason of alienage, they are disre- garded, and the whole title vests in those heirs competent to take, provided they are not com- pelled to trace the inheritance through an alien. lb. As to Natwalization and rights of dtizemhip, see Citizens. ALIMONY. Divorce, IV. ALTERATION OF INSTRUMENTS. Of married woman's note. In an action brought upon a joint and several prom- issory note made by a, husband and wife, and indorsed by the payee and others, one of the indorsers set up as a defence that the note was, after the making and indorsement thereof, materially altered, without his knowledge or consent, by the insertion in the body thereof of the following words, " and the said Ellen A. Brown makes this note a charge upon her separate estate." Held, that the facts so alleged constituted a good defence to the action. — /Su- preme Ct., (2d Dept.,) Dee., 1880. Keeves v. Pierson, 23 Hun 185. 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 evidence to explain, see Evidence, II. AMENDMENT. [Embraces amendments in Actions and Swiis, only. For amendments in Special proceedings, see the titles of the several special proceedings ; and for amend- ments on Appeai or Error, see those titles, respec- tively.] 1. Amending the summons. A fail-' ure to name in the summons the county in which the plaintiff desires the trial to be held, is not such a defect as requires the court to set aside its service absolutely ; the court may in a proper case deny a motion to set aside the ser- vice of such a summons on condition that a proper summons shall, within five days after the entry of the order, be served upon the de- fendant. — Supreme Ct., {Ist Dept.,) May, 1881. Wallace v. Dimmick, 24 Hun 635. 2. Amending the complaint, gen- erally. In actions ex contractu, to authorize re- covery for more than is claimed in the complaint, an amendment of it is requisite. — Ct. of App., June, 1880. Van Gelder v. Van Gelder, 81 N. Y. 128. 3. — at the trial. Where a complaint states a cause of action ex delicto it is not com- petent at the trial to convert it into one ex con- tractu. — Ct. of App., June, 1880. Neudecker v. Kohlberg, 81 N. Y. 296, 302. 4. — after trial. Upon the trial, plaintiff moved to amend his complaint to include inter- est on the demand, and the referee reserved his decision, no objection being made to his so doing. Held, that an allowance of the amend- ment, made in the findings of the referee, was in time. — Superior Cl., Dec., 1880. Bean v. Edge, 46 Superior 455. 5. Where plaintiff fails to prove the cause of action set up in his complaint, and the ob- jection is raised upon the trial, and no amend- ment of the pleading is asked for or ordered, a judgment in plaintiff's favor, upon a cause of action entirely separate and distinct from that alleged, cannot be sustained on appeal. In such case the pleadings cannot, after the trial, be conformed to the proof. It is no answer to the objectiofl that defendant was probably not misled. — Ct. of App., March, 1881. Southwick V. First Nat. Bank of Memphis, 84 N. Y. 420 ; reversing 20 Hun 349. 6. Where tlie complaint sets forth a prom- issory note not purporting to be made by de- fendants, and various circumstances by reason 8 AMENDMENT.— APPEAL, I. of which it is sought to charge defendants with the payment of the note, but does not allege a promise by defendants, or either of them, to pay it, the trial court has no power to allow an amendment of the complaint by inserting an allegation of a promise to pay ; consequently, the General Term can neither deem it to have been made, nor make it itself, so as to make the verdict secundum allegata. — -Superior Ot., Dee., 1880. Storrs v. Flint, 46 Superior 498. 7. Amending the answer. The de- fendant cannot avail himself of the defence of the statute of limitations, unless he has set it up in his answer. His failure so to plead it, is not a defect in matter of form which should be corrected by the court upon the trial. — Supreme Ct., (4iA Dept.,) April, 1881. Dezengremel v. Dezengremel, 24 Hun 457. 8. As to the effect of a stipulation not to amend the answer, upon the power of the trial- judge to grant amendments on the trial, see Hennequin v. Clews, 46 Superior 331. 9. Amending the judgment-roll. The court must, where necessary, direct amendments to be made both in the process and pleadings in an action, by correcting a mistake in the name of a party, or adding or striking out such ^iiame, either upon the trial, or before or after judgment. In every stage of the action the court is also required to disregard any error or defect in the proceedings not affecting any sub- stantial right of the adverse party. Sections 721, 723. Therefore, where the judgment-roll does not contain proof of service of the notice of application for judgment and for the trial of the action, and such service- was in fact made, the judgment-roll may properly be amended by supplying the omission. — Supreme Ot., {1st Dept.,) March, 1881. Weil v. Martin, 1 Civ. Pro. 133. For further decisions as to Amended and Supplemental pleadings, see Pleading, VIII. As to amendinents in Justice^ courts, see Jus- tice OF THE Peace. As to bringing in New parties by amendment, see Parties. For the power of a Referee to allow amend- ments, see Reference. ANIMALS. 1. Liability of owner for trespasses by them. The term " running at large," as used in Laws of 1862, ch. 459, § 1, as amended by Laws c!f 1867, ch. 814, implies permission or assent, or at least some fault or neglect on the part of the owner of the animals. — Supreme a., (2d Dept.,) May, 1880. Coles v. Burns, 21 Hun 241). 2. Where animals escape from their owner's premises, after due precautions to secure them have been taken, and without any default or neglect on his part, and he thereafter makes immediate and suitable efforts to secure and recover them, they cannot be said to be "run- ning at large," within the meaning of the said act. lb. 3. Proceedings to enforce the lia- bility. In order to give a justice of the peace jurisdiction of an application to sell animals, seized, under the act above mentioned, while trespassing upon the lands of the applicant, the complaint must allege that the animals escaped upon the land from the highway. lb. 4. It is improper to allow the complaint to be amended by the insertion of this allegation after the defendant has answered, and the case has been called for trial. lb. As to the liability of a railroad company, for Killing stock on the track, see Eaileoad Com- panies, IV. ANNUAL REPORT. For decisions as to the duty of Trustees of manufacturing companies to file annual reports, and their Individual liahility for failure to do so, see Manufacturing Companies, II. ANSWER. In Abatement, see Abatement, 4, 5. In Bar, see Pleading ; and the titles of the various causes of action. APPEAL. SStubraces, for the most part, appeals in adifms y. 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 ervmvnal cases, see CebtiobabI; Ebbob ; also, the titles of particular offences.] I. General Principles. 1. When an appeal mil lie. 2. Nature and exercise of appellate juris- 3. Procedure on appeal. II. Appeal to the General Term. 1. When an appeal will lie. 2. Procedure. III. Appeal to the Court op Appeals. 1. When am appeal will lie. 2. IV. Appeals from Marine Court to Court op Common Pleas, in New York City. V. Appeals prom County Courts to Su- preme Court. VI. Appeals prom Surrogates' Courts. VII. Enforcement op Appeal Bonds. I. General Principles. 1. When an appeal will lie. 1. The right to appeal, and how •waived. The defendant appealed from an order referring the issues in the action for trial and thereafter applied for leave to serve an APPEAL, I. • 9 tiriipnded answer, which was granted upon con- ■dition that the order of reference stand, and that the issues made by the amended answer be tried thereunder. Tliereupon, defendant duly ■entered an order in compliance with sajd con- ditions, served i\a amended answer, and pro- ceeded with the reference. Held, that he, thereby waived his right of appeal from the .order of reference. — Superior Ct., April, 1880. Egbert V. O'LJonnor, 46 Superior 194. 2. "What matters are discretionary, and therefore not revie'wable. When an order denying a motion to exonerate bail is in discretion, and so not reviewable, see Mills V. Hildreth, 81 N. Y. 91. 3. Where evidence upon the cross-examina- tion of a witness is offered for the purpose of ■discrediting him, the rejection thereof for that purpose is in the discretion of the court, and so is not error. — Ct. of App., Nov., 1880. Canaday V. Krum, 83 N. Y. 67. 4. An order of reference of a claim held by the receiver of an insolvent corporation di- rected the discontinuance of an action which had previously been brought by the receiver, without costs. Held, that it was in the discre- tion of the court whether or not to allow costs to the defendant. — Ot. of App., June, 1880. Matter of Crosby.?). Day, 81 N. Y. 242, 245. 5. In this state there is no fixed rule, appli- cable to all cases, determining whether or not a mortgagee in possession is, upon an application by the mortgagor to redeem, entitled to com- missions upon the amount received and ex- pended by him. The decision of this question rests in the discretion of the court or referee trying the action, and when it is not unreason- ably exercised the appellate court will not in- ; terfere therewith. — Supreme Ct., (3d Bept.,) Jan., 1881. Green v. Lamb, 24 Hun 87. 6. Where, upon the hearing of a motion to -set aside an execution because issued for the first time more than five years after the entry of the judgment, it appears that the facts are such as would have required the court to have granted leave to issue it, if an application therefor had been formally made, it is not an abuse of judicial -discreiion for the court to refuse to set it aside. — Supreme Ct., (2d Dept.,) Feb., 1881. Frean u. Garrett, 24 Hun 161. 2. Nature and exen-eise of appellate jurisdiction. 1. "What errors are ground for re- versal, generally. On the trial of an action the plaintiff is entitled to go to the jury on any theory consistent with the pleadings which his -evidence will justify ; before he can be limited to any certain theory, on appeal, it must appear in the case as settled that he has thus limited himself on the trial. Where, therefore, upon the trial the judge stated to the jury, that plain- tiff had thus limited herself, but her counsel •disputed tliis and claimed that she had not, and it did not appear in the case that she had as- sented to any such limit — Held, that it was error for the court to take from the consideration of the jury another theory presented and supported by the evidence.— ft. of Afp., June, 1880. Hazewell v. Coursen, 81 N. Y. 630. 8. Under the provision of Code of Civ. Pro., i 9'J3, which provides that a refusal to make -any finding whatever upon a question of fact, on a trial by the court or a referee, where a re- quest was seasonably made, is a ruling upon a question of law, a refusal of a retjue.-t to find a feet, on the ground that the fact is immaterial, presAits a question of law, and if the fact be material tlie ruling is error, although the (act be not conclusively proved, and the evidence as to it is conflicting. — Ct. of App., Nov., 18S0. James v. Cowing, 82 N. Y. 449; reversiiici 17 Hun 256. 9. Admission of improper evidence. The fact that one issue existed in the case, which might have been decided in favor of i he successful party, does not justify the appellate court in disregarding errors in the admission of testimony bearing upon a different issue, and holding that the evidence so admitted was harm- less.— Supreme Ct., (3d Dept.,) Sept., 1880. Ayres V. Water Comm'rs of Binghamtou, 22 Hun 297. 10. Exclusion of proper evidence. In an action to recover damages for an injury sustained by plaintiff in falling over a water- gate projecting from the sidewalk in one of the streets of defendant, a witness for the plaintiff having testified that he knew of the existence of the water-gate at the place where plaintiff fell, for some year and a half before the acci- dent, was asked, " Did you ever know of any- body falling over there before ?" Upon defend- ant's objecting that the evidence was immaterial and irrelevant, the court excluded it. Held, error. — Supreme Ct., (3d Dept.,) Jan., 1881. Burns v. City Of Schenectady, 24 Hun 10. XI. Plaintiff recovered a judgment for an amount alleged to be due to him for his salary as attendant for the Fourth District Court of the city < if New York from January 1st, 1877, to June 1st, 1877. He offered evidence tending to show that he had been appointed to the office of jani- tor by the justice of the said court, on tlie loih day of March, 1870, who acted in accordance with a resolution of the common council, ap- proved by the mayor on that day. Upon the trial defendant offered to prove that on Decem- ber 28th, 1876, the resolution conferring such au- thority upon the justice was repealed. Held, that the court erred in excluding the evi- dence. — Supreme Ct, {1st Dept.,) Jan., 1881. Hartman v. Mayor, &c., of New York, 23 Hun 586. 12. Erroneous refusal to charge. In an action brought by a client against her attor- ney, to recover moneys alleged to be wrongfully detained by him, the main fact at dssue was whether a certain sum of money was paid by her to the attorney in satisfaction of his charges for services, &c., or whether the said sum was delivered to him upon the understanding that part thereof was to be received in full satisfac- tion of his said charges, and the remainder to be used in settling certain claims which were (as alleged by' the client) falsely stated by said at- torney to exist. Held, error to refuse to charge that the jury might consider the value of the attorney's services and the disbursements in- curred by him for said client, as having a bear- ing upon the probabilities of the case.^ — Superior Ct., April, 1880. Bobbins v. Pultzs, 46 Superior 184. 13. "WTiat' errors may be disre- garded, generally. The fact that a party declines to comply with a notice to produce, does not make the subsequent admission ' of a paper offered by such party, substantially differing in its terms from the one called for, although 10 APPEAL, I. bearing on the same subject matter, error call- ing for a reversal. — Aiperior Ot., Feb., 1880. Scott v. Sandford, 46 Superior 544. 14. When facts appearing on the trial, tend- ing to establish a cause of action not set up in the complaint, will not authorize a reversal of the judgment for defendant, see Eoe v. Barker, 82 N. Y. 432. 15. Errors not objected to toelo'W. An objeciion which, if taken, might liave been ob- viated at the trial, cannot be urged for the first time on appeal. — Oom. Pleas, (Oen. T.,) March, 1881. Sacia v. Decker, 1 Civ. Pro. 47. 16. The point that in an action on a lost note, the bond required by statute was not given, cannot be raised for the first time on appeal ; it must be presented by exception. — Ot. of App., March, 1881. Fordham u. Hendrickson, 84 N. Y. 654. 17. Where a defendant moves lor a non-suit, or rests his defence upon propositions of law and does not request to go to the jury, and his mo- tion is denied, or the law held adversely to him, he is estopped from raising the point upon ap- peal that there were questions of fact which shouldhave been passed upon by thejury. — Ct. of App., Nov., 1880. Ormes v. Dauchy, 82 N. Y. 443 ; affirming 45 Superior 85. S. P., Graham v. O'Hern, 24 Hun 221. 18. For instances of the application of the rule that an objection cannot ordinarily be taken in the first instance on appeal, see Burns V. City of Schenectady, 24 Hun 10 ; Duckworth V. Eoach, 81 N. Y. 49. 19. — or -which, might have been cured belo-w. It seems that where, upon the trial of an action, either civil or criminal, the court corrects, or offers to correct, an erroneous ruling, and the party against whom it was made re- fuses to consent to the correction or to avail himself of the offer, an exception to the ruling will not be available on appeal, provided the appellate court can see that the acceptance of the offer would have relieved the party from any actual or possible injury in consequence of the erroneous ruling. — Ct. of App., April, 1880. Cox V. People, 80 N. Y. 500, 511. 20. What errors are not cured. Where the court erroneously charges the jury, as a matter of law, that a certain material fact is as contended by plaintiff, such error is not cured by a subsequent charge, made upon request of defendant's counsel, to the effect that the bur- den of proof is on plaintiff to show the said fact as claimed by him, and that on the evi- dence in the case it is a question for the jury whether it is so or not, and if they believe such to be the fact, they will find, &c., — the original charge in that regard not having been with- drawn. — Superior Ct., June, 1880. Canfleld v. Baltimore, &c., K. E. Co., 46 Superior 238. 21. Harmless, or non-prejudicial errors. The ruling of a judge on the trial admitting secondary evidence will not be re- versed on appeal, unless it very clearly appears that an error lias been committed which has prejudiced the party complaining thereof. — Supreme Ct., {Isi Bept.,) Nov., 1880. Naugatuck Cutlery Co. v. Babcock, 22 Hun 481. 22. A chance expression of opinion as to the credibility of a material witness, made by the judge in his charge, and which he subse- quently qualified by a statement to the effect that the jury are not bound thereby, does not necessarily furnish good ground for exception.— Superior Ct., Dec., 1880. Hoffman v. Newr York Central, &c., B,. R. Co., 46 Superior 526. 23. Presumptions on appeal. Defend- ants' counsel presented to the court thirteen written requests to charge. The court, after remarking that there were certain requests to- charge which it would read, then read nine of the requests. The court did not state in terms as to whether it gave them to the jury as the- law, nor did it refuse in terms to charge the four requests not read. Held, that the inference was that the court intended to charge in accord- ance with the requests read, and declined to charge the residue. — Gt. of App., Sept., 1880.- Hvnes v. McDermott, 82 N. Y. 41 ; affirming 7 Daly 513. 3. I¥ocedure on appeal. 24. The security. An undertaking and; notice of appeal describing the judgment ap- pealed from as a judgment entered March llth,. when, in fact, it was entered March 12th, may be disregarded and execution issued ; the- respondent is not required to move to set aside the undertaking in such a case. — Com. Pleas., {Sp. T.,) May, 1881. Dinkel v. Wehle, 61 How.. Pr. 159. 25. As to the power of the court to amend; an undertaking on appeal, on motion of one of the sureties thereto, see O'Sullivan v. Connors,, 22 Hun 137. 26. Bringing up the record — motion for ne^w trial belo-w. Where, in an action brought to foreclose a mortgage, issues of fact are framed and, in pursuance of an order tO' that effect, tried by a jury, a motion for a new trial on the case and exceptions, founded upon irregularities committed on the trial by the- jury, must be made before the entry of judg- ment in the action, otherwise the findings of the jury will be deemed to have been acqui- esced in, and questions of fact involved therein cannot be reviewed on an appeal from the judgment. — Supreme Ot., (3d Dept.,) Nov., 1880. Chapin v. Thompson, 23 Hun 12. I 27. As to how questions of fact may be- brought up for review, and when an entry on the clerk's minutes will be deemed an order denying a motion for a new trial, see Dart v. Gillies, 46 Superior 560. 28. The hearing. What question* are before the court. Where a defendant does not accept an allegation of fact in the- complaint, but gives evidence upon the trial in conflict with it, plaintiff is not precluded om appeal from claiming the fact to be as the evi- dence establishes it. — Ct. of App., Dec., 1879... Cowing V. Altman, 79 N. Y. 167. So, also, where the case is tried without reference to the pleadings, and no exception is- taken raising the question that plaintiff is pre- cluded thereby from showing the actual trans- action, the question cannot be raised upon- appeal. lb. 29. Reviewing the evidence. When a defect in the plaintiff's case is supplied by testimony on the part of the defendant, the former is entitled to the benefit thereof on appeal in support of a denial of a motion to nonsuit.— Oi. of App., Nov., 1880. Painton ». Northern Central R'y Co., 83 N. Y. 7. 30. Receiving new evidence on ap~ APPEAL, II. 11 peal. Where, upon the trial of an action brought by one claiming to have been appointed an attendant upon the Marine Court, under a particular act, to recover the salary attached to such office, his attention is specifically called to the fact that he has failed to prove an appoint- ment thereunder, he cannot, upon the hearing of an appeal taken by the defendant, from a judgment rendered against it, introduce docu- mentary evidence to prove that in fact he was appointed thereunder. — iSwpreim Ot., {1st Dept.,) May, 1880. Moser v. Mayor, &c., of New York, 21 Hun 163. 31. An omission in proof of a matter of record may be supplied on appeal to sustain a judgment, where the record cannot be answered or changed. — Gt. of'Ajyp., March, 1881. Dun- ford V. Weaver, 84 N. Y. 445 ; affirming 21 Hun 349. 32. Discontinuance of appeal. An order discontinuing an appeal, entered by con- sent, should not be vacated on an ex parte appli- cation. — Supreme Gt., {let Dept.,) Juris, 1880. People V. Central Crosstown E. E. Co., 21 Hun 476. 33. Rendering final judgment on reversal. To justify an appellate court in rendering final judgment against the respondent upon reversal of a judgment, it is not sufficient that it is improbable that the defeated party can succeed upon a new trial ; it must appear that he certainly cannot. — Gt. of App., Feb., 1880. Guernsey v. Miller, 80 K Y. 181. II. Appeal to the Genebal Term. 1. Whem an appeal mil lie. 34. From interlocutory judgment. After an appeal from a.final judgment entered upon an interlocutory one (no appeal having previously been taken from the interlocutory judgment), had been dismissed, an appeal was taken from the interlocutory judgment. On motion this appeal was dismissed. — Superior Gt. Cameron v. Equitable Life Assurance Soc, 46 Superior 84. 35. What orders are appealable, generally. An order denying a motion to compel the acceptance of a pleading is appeal- able. Supreme Gt., (1st Dept.,) Dee., 1880. Pattison v. O'Connor, 23 Hun 307; S. C, 60 How. Pr. 141. 36. An order denying an application to vacate an attachment founded only upon the papers upon which the warrant was granted, is appealable to the General Term. — Com. Pleas, {Gen. T,) Jan., 1881. Achelis v. Kalman, 60 How. Pr. 491. On such appeal the General Term must exercise the same supervision over the motion that the judge to whom it was originally made conld have done. It must consider as to whether there is sufficient in the papers to justify the issuing of the attachment, not whether there was jurisdiction, lb. 31. As to when an appeal should be taken from the original order, and not from a subse- quent one amending it, and when a party, not restrained by an injunction order, may appeal therefrom, see Landers o. Ksher, 24 Hun 648. 38. "What are not. No appeal lies from an order refusing to confirm the report of a referee appointed by an interlocutory judgment to take proof of certain facts and report the same to the court before which an action is being tried, to enable it to make and render a final judgment therein, when such refusal is based upon the insufficiency of the report, and is accompanied by an order requiring the referee to furnish more specific facts. — Supreme Gt., (2d Dept.,) Dec, 1880. Kent v. Quicksilver Mining Co., 23 Hun 199. 39. An order allowing an open commission to issue, as authorized by sections 893 and 894 of the Code of Civil Procedure, is not appeal- able to the General Term. — Supreme Gt., {1st Dept.,) April, 1881. Jemison u. Citizens' Sav- ings Bank, 24 Hun 350. 40. Orders on motions for judg- ment. An order denying a motion for judg- ment for an amount admitted by the answer, sufficiently involves the merits of the action,, and afiects a substantial right, to be appealable to the General. Term. — Superior Gt., Feb., 1880. Marsh v. West, &c., Manuf. Co., 46 Superior 8. 41. Orders on motions for ne'w trial. Under section 999 of the Code of Civil Pro- cedure, a party may move for a new trial, on the ground that the verdict is contrary to law, and upon an appeal from an order denying such a motion, the whole case is before the appellate court, upon the law as well as the facts. — Supreme Gt., {2d Dept.,) Dee., 1880. Tate v- McCormick 23 Hun 218. 2. Procedure, 42. "Who may appeal. Under Code of Civ. Pro., ^ 1247, a referee, appointed to sell real estate in pursuance of a judgment, may ap- peal from an order fixing his fees and compen- sation for the services so rendered by him. — Supreme Gt., {^th Dept.,) Jan., 1881. Hobart v. Hobart, 23 Hun 484. 43. Limiting time to appeal. Service of a copy of an order, before entry, not ad- dressed to any one, and without written notice of entry, is not sufficient to limit the time for appeal. — Gt. of App., Sept., 1880. Sheridan v. Andrews, 81 N. Y. 650. 44. Taking an appeal — security. For matters of practice, relative to perfecting an ap- peal and extending the time to give an under- taking, when the time allowed by law has expired, see Wheeler v. Millar, 59 How. Pr. 396. 45. Stay of proceedings. An interloc- utory judgment was entered in this action adjudging a deed given by the plaintiff' to the defendant to have been procured by fraudulent misrepresentations and undue influence, and directing that it be given up and canceled, and also providing for a reference to take and state an account of the rents received from the premises and the payments made on account thereof. An appeal having been taken from the interlocutory judgment, an application was made for a stay of all further proceedings dur- ing the pendency thereof. Held, that the stay should have been granted. — Supreme Gt,, {1st Dept.,) March, 1881. Coleman v. Phelps, 24 Hun 320; S. C, 1 Civ. Pro. 9. 46. The object of the legislature in provid- ing for such an appeal was to avoid unnecessary litigation and expense, which would not be effected if the procee(Ungs demanded by the 12 APPEAL, II. interlocutory decree were carried on and subse- quently rendered futile by a reversal of tlie main judgment on which the interlocutory decree was based. lb. 47. On appeal from an order refusing a stay of proceedings until the determination of a motion, a stay should not be granted. — Supreme Ct., (1st Dept.,) June, 1881. People ti. Man- hattan R B. Co., 9 Abb. N. Cas. 448. 48. Time to make and serve the " case." Under the provision of the Code of Procedure, in reference to making a case for the purposes of review, in an action tried by the court or a referee (§ 268), the ten days allowed for that purpose did not begin to run until the entry of judgment, and notice thereof; the alternative stated therein, "or within such time as may be prescribed by the rules of the •court," meant such further time as might be prescribed. — Ct. of App., Feb., 1880. French v. Powers, 80 N. Y. 146. 49. A service, therefore, of, a copy of a referee's report, and notice of filing, did not op'erate to limit the time to serve a case or •exceptions. The rule of the Mupreine Court, (rule 34 of 1858, rule 47 of 1871 and 1874, and rule 32 of 1877), requiring a case to be served within ten days after written notice of the de- cision or report, was in conflict with the code, and consequently inoperative. lb. 50. The practice, in this respect, was not changed by the provision of the Code of Civ. Pro., § 994, providing that exceptions, taken after trial, may be taken " at any time before the expiration of ten days after service * * * of a copy of the decision of the court, or report of the referee, and a written notice of the entry of judgment thereupon." lb. 51. While under this provision, exceptions mny be taken at any time after trial, they are not required to be taken until ten days after notice of judgment; and although no provision is made as to time for serving the case, as the ■case is required to contain the exceptions, (Code, I 997,) it need not, and cannot be served until after the exceptions are framed, and the party -cannot be put in default for not serving a case containing them, before the expiration of the time allowed for framing them. lb. 52. The exceptions referred to in said pro- vision are not simply those taken on the trial. lb. 53. It seems, that where a report of a referee, and notice of filing thereof, were served prior to the going into effect of the Code of Civil Pro- cedure, (September 1st, 1877,) but no judgment had been entered, that even if the practice had been changed by the said code, and the rule validated, the notice would not have become operative to limit the time for making a case to ten d.and settlement of the judge hav- ing been filed. — Superior Ot., May, 1880, Knappii. Roche, 46 Superior 200. 64. Upon appeal from judgment in this ac- tion the General Term affirmed it, provided plaintiff would stipulate to deduct therefrom a specified sum ; plaintiff filed the required stipu- lation, also the decision of the General Term, signed by one of the judges. Seld, that this was not an entry of judgment within the mean- ing of the provisions of the Code of Civil Pro- cedure in reference thereto (^§ 1236, 1354). — Cl. of App., Oct., 1880. Knapp v. Eoohe, 82 N. Y. 366 ; affij-ming 46 Superior 200. 65. The memorandum handed down by a General Term of its decision of an appeal is not a judgment,but simply an authorityto enter one. lb. 66. Upon the filing of such decision a formal judgment should be prepared and entered in the judgment-book, attested by the signature of the clerk; and, to constitute a judgment-roll, a copy thereof should be annexed to the papers upon which the appeal was heard. Therefore — Seld, that, as the duty of preparing such judg- ment-roll is imposed upon "the attorney for the party at whose instance the final judgment is entered " (Code of Civ. Pro., ? 1238,) an order was properly granted directing the plain- tiff to enter judgment and file a judgment-roll, and for that purpose authorizing him to file a printed copy of the case on appeal. lb. 67. Effect of tlie appeal ■while pend- ing. It is within the discretion of the court, and is a proper exercise thereof, to deny as pre- maturely made, a motion to charge the person beneficially interested in the recovery in an ac- tion (2 Eev. Stat. 619) with the payment of a judgment for costs entered therein, when an ap- peal from said judgmefit is pending at the time said motion is made, though no security upon appeal has been filed, and no stay of proceed- ings granted. The denial of the motion upon said grounds may be deemed equivalent to a slay. — Superior Ct. Slauson v. Watkins, 46 Su- perior 172. III. Appeai, to the Court of Appeals, 1. When an appeal mil lie. 68. Jurisdiction as dependent upon the amount in controversy. The ques- tion as to whether this court has jurisdiction on appeal from a judgment, or from an order grant- ing or refusing a new trial, is to be determined by the amount in controversy in the General Term. — d. of App., April, 1880. Davidson ». Alfaro, 80 N. Y. 660. 69. In the provision of the Code of Civil Procedure limiting appeals to this court (§ 191, subd. 3,) the amount demanded in the complaint is made controlling only in actions not founded on contract, because in actions ex contractu the facts alleged in the complaint may shpw that plaintiff, if successful, would not in law be en^ titled to so large a recovery ; the distinction is not based upon the theory that in the latter class of actions plaintiff may recover more than he demands in his complaint. — Ct. of App., June, 1880. Van Gelder v. Van Gelder, 81 N. Y. 128. TO. Instances. In an action for mopey had and received plaintiff asked judgment for 1400 with interest from the day prior to that on which the action was commenced. The judg- ment was for defendant. On appeal to this court plaintiff claimed the facts proven entitled him to interest from 1869. Seld, that the judgment was not reviewable in this court, as the amount in controversy was less than $500 ; that to au- thorize a recovery for a larger sum than that claimed, an amendment of the complaint would have been required, and no such amendment was made or applied for. lb. 71. This action was brought to recover a bal- ance of $689, alleged to have been found and agreed to be due plaintiff on a settlement and account stated between him and defendant on May 1st, 1876, and for labor of plaintiff and son between that day and December 9th, 1876. De- fendant, in his answer, after denying many of the allegations of the complaint and alleging payments, expressly admitted an indebtedness of f 230.89 " over and above all payments, offiets and counter-claims." During the trial defend- ant asked to amend his answer by alleging therein a counter-claim for $700. This applica- tion was denied, on the ground that the facts offered to be proved would not constitute a counter-claim. Seld, that the amount in con- troversy was less than $500, and the case was not appealable to this court ; that if the counter- claim had been alleged in the answer and put in issue by a reply, the amount in controversy would have been sufficient to allow an appeal, but as the counter-claim was not so alleged, it was not in controversy ; that it mattered not that the referee placed his refusal to allow the amendmeiit upon an erroneous view of the law ; if an error was. committed, such error could be reviewed only like any other error committed on the trial, and the amount in controversy would have to be determined by the pleadings as they actually were. — Ct. of App., April, 1880. Wiley V. Brigham, 81 N. Y. 13. 72. What orders are appealable, generally. An order of the Supreme Court punishing an attorney for prpfessional miscon- duct, not committed in the presence of the court, but based upon evidence, is reviewable upon the facts in this court. — Ct. of App., Sept., 1880. Matter of Eldridge, 82 N. Y. 161. 73. An order of General Term, reversing an order of Special Term, vacating an assessment, without ordering a rehearing, is a final order 14 APPEAt, III. appealable to this court. — Ct. 0/ App., Sept., 1880. Matter of N. Y. Prot. Epis. Pub. School, 82 N. Y. 606. 74. An order vacating an attachment be- cause of failure to serve or publish the sum- mons within the statutory time, as it involves simply a question of jurisdiction, is reviewable here.— Ot. of App., March, 1881. Blossom v. Estes, 84 N. Y. 614. . 75. What are not appealable. An appeal from an order of General Term affirming a judgment, is premature and unauthorized; judgment should first be entered and the appeal taken from the judgment. — Ot. of App., Feb., 1880. Kilmer v. Bradley, 80 N. Y. 630. 76. An order of reference, to take proof as to charges made by creditors against an assignee for the benefit of creditors, is not reviewable here, as it is an order, not final, made in a special proceeding. Code of Civ. Pro., § 190, subd. 3. — G. of App., Sept., 1880. Matter of Friedman, 82 N. Y. 609. . , 77. Where an ordea of Special Term, vacating an assessment for a local improvement, is reversed by the General Term, on the ground that the assessment should he reduced, not vacated, and the case is remitted to the Special Term, that the assessment may be modified in conformity with the principles laid down by the General Term, the order of General Term is not a final order ; and so is not reviewable here. — Ct of App., Dee., 1879. Matter of Auchmuty, 79 N. Y. 622. 78. Upon appeal from a judgment of Special Term, dismissing plaintiff's complaint, the Gen- eral Term reversed the judgment, directed that an " interlocutory judgment be entered upon the facts found by the court ; that a referee be ap- pointed to take and state the accounts of the re- spective parties, and that, upon the filing and confirmation of his report, a further and final judgment should be entered by the Special Term for the final disposition of the entire controversy between the parties." Plaintiff appealed to this court from the order, and the order of Special Term entered in pursuance thereof; he gave no jtipulation for judgment absolute in case of affirmance. Sdd, that the order of General Term was not a "final judgment" within the first subdivision of section 198 of the Code of Civil Procedure ; nor was it an order which, in effect, determined the action and prevented a final judgment, or an order made upon or de- ciding an interlocutory application, or an order deciding a question of practice within the second subdivision of said section ; that as there was no stipulation, it was unnecessary to determine whether the order could be regarded as an order granting a new trial. Appeal therefore dis- missed. — &. of App., April, 1880. Jones i;. Jones, 81 N. Y. 35. 79. The following orders have been held not to be appealable to the Court of Appeals : An order annexing an improper question to a commission ; it affects no substantial right, as the party may raise the objection on trial. — a. of App., Dec., 1879. IJline v. New York Central, &c., B. E. Co., 79 N. Y. 175. An order granting an order of arrest ; where the papers stated facts to give jurisdiction. — Ol. of App,, March, 1881. King v. Arnold, 84 N. Y. 668. An order refusing leave to withdraw a de- murrer and plea, after judgment overruling the demurrer without leave to plead to the merits, or with leave not availed of.— O!.^ App., June, 1880. Fisher n. Gpuld, 81 ^. Y. 228 232 An order of General Term refusing to open a default.— Ci!. of App., Dec, 1880. Stevens v. Glover, 83 N. Y. 611. ^ . An order of the Supreme Court confirming the report of commissioners of estimate and as- sessment in proceedings to open streets in New York City.— a. of App., June, 1881 . Matter of One Hundred andThirty-eighth and other streets, 61 How. Pr. 264. 80. Orders granting or refusing a ne'W trial. An order granting a new trial, in an action tried by jury, where the facts were be- fore the General Term, is not appealable. — a. of App., Jun£, 1880. Whitson v. David, 81 N. Y. 645. 81. An order of the General Term granting a new trial in proceedings for the determination of claims against an estate, is not appealable to this court ; it is not a final order, and in a special proceeding no appeal to this court is authorized except from a final order. Code of Civ. Pro., g 190.— a. of App., June, 1880. Roe v. Boyle, 81 N. Y. 305. 82. Orders in proceedings for con- tempt. An order punishing for contempt, in violating an injunction, can only be reviewed, upon the merits or for alleged legal error, on appeal from the order. — Gt. ^ App., Jan., 1880. Watrous v. Kearney, 79 N. Y. 496. It is within the discretion of the court whether to open or vacate the order on motion, and the exercise of this discretion cannot be re- viewed here. lb. 83. Orders in relation to costs. Where an order of General Term, reversing an order of Special Term, as to the disposition of surplus moneys in a foreclosure suit, and send- ing the case back to the referee, imposes costs absolutely, in this respect it is a final decision, and an appeal to this court can be taken. Il seems that in the absence of such a provision as to costs, the order is not appealable. — Ct. of Am>., Dee., 1879. Bergen v. Carman, 79 N. Y. 146 ; Compare Van Gelder v. Van Gelder, 84 N. Y. 658. 84. Reviewing discretionary action, generally. The Supreme Court has discre- tionary power to grant or withhold a common law certiorari, and the exercise of this discretion cannot be reviewed here. — Ot. of App., Nov., 1880. People, ex rel. Waldman, v. Police Commis- sioners of New York, 82 N. Y 506. 85. The provision of the Code of Civil Pro- cedure regulating appeals to this court in such cases (? 190, subds. 2, 3,) does not differ in meaning from that of the Code of Procedure. lb. 86. An application to exonerate a sheriff as official bail, made after the time for answering in an action to charge him as such has expired, is in the discretion of the court below. The exercise of this discretion by a Special Term of the Supreme Court may be reviewed by the General Term, but the determination of the latter court is not reviewable here.— Cis. of App., Nov. 1880. Douglass v. Haberstro, 82 N. Y. 572. 87. An order of a Special Term denying a motion to set sside a referee's report and the judgment thereon, and to vacate the order of reference because of irregularity in the proceed- ings before the referee, is not reviewable here • It 18 a matter addressed to the discretion of that APPEAL, III. 15 court. — Cl. ofApp.jFeb., 1880. Comins «. Het- fieia, 80 N. Y. 261. 88. Where an order in supplementary pro- ceedings made in the district where the venue was laid and roll filed, appoints a referee and directs all further proceedings to be before a justice of the district where defendant resides, such justice has power to change referees, and the exercise of this power is discretionary and not reviewable here. — Cl. of App., Jan., 1881. Pardee v. Tilton, 83 N. Y. 623. 80. — in respect to arrests. An order of arrest is a provisional remedy which the court may grant or refuse in a proper case ■within its discretion, and the exercise of this discretion is not reviewable here. No appeal lies, therefore, to this court, from an order va- cating an order of arrest, when upon any view of the facts the decision can be upheld. Unless the contrary appears in the order, it must be assumed tnat it was made in the exercise of such discretion.— OS. of App., Nov., 1880. Clarke V. Lowrie, 82 N. Y. 580. S. P., Matter of Town- send, 81 N. Y. 644. 90. — in respect to the pleadings. An appeal lies to the General Term from an order of the Special Term, directing judgment for plain- tiff on accoimt of the frivolousness of defend- ant's answer, before the entry of judgment in pursuance thereof. — Ot. of App., Nov., 1880. Elwood V. Eoof, 82 N. Y. 428. 91. But an order of Greneral Term reversing the Special Term order is not appealable to this court; it is in the discretion of the court below whether to pass upon the sufiSciency of the an- swer, on motion, or to put the plaintiff to a regular demurrer. lb. 92. — in respect to examination of ■witnesses. After a party has been permitted to examine a witness at length in reference to a transaction, it is in the discretion of the court to exclude further examination upon the sub- ject, and its decision is not reviewable here. — Ot. of App., Dec, 1879. Cowing v. Altman, 79 N. Y. 167. And see Agate v. Morrison, 84 N. Y. 672. 93. — in respect to orders made after judgm.ent. The Supreme Court has power to open defaults and to vacate judgments, and a judgment entered upon demurrer may be re- lieved against as well as any other. — CJ. of App., June, 1880. Vanderbilt v. Schreyer, 81 N. Y. 646. 94. Whether the power shall be exercised in a case is a question in the discretion of that court, with the exercise of which this court will not ordinarily interfere ; and while this power must not be exercised arbitrarily, so as to de- prive a party of a valuable right, where facts exist showing that the ends of justice may re- quire its exercise, the determination of the Greneral Term is not reviewable here. lb. 95. This action was commenced in 1866 to foreclose a mortgage executed by defendant G. ; C. was made co-defendant upon the ground that he had guaranteed payment of the mort- gage, and judgment was demanded in the com- plaint against both defendants for any defi- ciency. C. died on January 9th, 1870, and in June of that year judgment was entered nuTic pro time as of January 6th, charging G. only with any deficiency. In November, 1877, there was a sale under the judgment and a large de- ficiency. Plaintiff died in December, 1878 ; in December, 1879, his executor moved that the judgment be amended nunc pro tunc so as to provide that C. should be liable for any de- ficiency. The motion was granted by the Spe- cial Terfn, but on appeal to the General Term the order was reversed. Held, that conceding the Special Term had power to make the order, it was not bound to exercise it, but it was a matter of discretion; that the exercise of this discre- tion was reviewable by the General Term but not by this court ; also, that the denial of the relief, under the circumstances, was no abuse of its discretion by the General Term. — Ct. of App., Nov., 1880. Grant v. Griswold, 82 N. Y. 569. 96. — in respect to compelling' entry of judgment. The Supreme Court may, in its discretion, instead of compelling the success- ful party in an action to enter a formal judg- ment, direct that unless judgment is so entered within a time specified, ihe defeated party may enter it ; and the exercise of this discretion is not reviewable here. — (M. of App., March, 1881. Wilson V. Simpson, 84 N. Y. 674. 97. — in special proceedings. Under the provision of the State Constitution (art. Ill, § 18,) prohibiting the construction of a street railroad without the consent of a specified por- tion of adjacent property-owners, or in lieu thereof a determination of commissioners ap- pointed by the General Term of the Supreme Court, that such railroad ought to be constructed and a confirmation thereof by the court, the determination of commissioners is inoperative until so confirmed. The Greneral Term has not a mere formal function; and, while the pro- ceeding before it is in the nature of an appeal, it has original jurisdiction so far that it has the power, and it is its duty to review the whole case and to pass upon the sufficiency of the facts to warrant the determination, and it is within the discretion of said court whether or not to confirm the commissioners' report. The exercise of this discretion is not reviewable here.— C«. of App., Sept., 1880. Matter of Kings Co. Elevated K'y Co., 82 N. Y. 95. 98. It seems that where an order of General Term in such proceedings refusing to confirm the report of commissioners does not state whether it was made upon questions of law or fact, it is to be presumed that the court ex- amined and passed upon the questions of fact as well as those of law. lb. 99. It is competent for a person against whom supplementary proceedings for the col- lection of a tax have been instituted, ex parte, under the statute of 1867, (Laws of 1867, ch. 361,) to move for a dissolution of the order for his appearance and examination on the ground that it was improvidently granted. Where, upon such motion, the question as to whether the person proceeded against was a resident of the county was in dispute, and the evidence in relation thereto was conflicting — Held, that the question was not reviewable here. (Code of Civ. Pro., i l3S7.)—aiof App., March, 1881. Bas- sett V. Wheeler, 84 N. Y. 466. 2. Procedure. 100. Necessity of exceptions. This court can only review judgments and grant new trials for errors of law ; and such errors must be pointed out by exceptions taken at a propei time. Where, therefore, it is alleged that ». 16 APPEAL, III. verdict is perverse, excessive in amount, and contrary to the law and the evidence, the judg- ment entered thereon cannot be reviewed here without an exception. This rule has not been changed by the provision of the Code of Civ. Pro., ? 999, in reference to the granting of a new trial by the judge presiding at the trial. For such errors, it seems the General Term has power to grant a new trial in its dis- cretion, although no exceptions were taken on the trial. — Ot. of App-, Jan., 1880. Standard Oil Co. V. Amazon Ins. Co., 79 N. Y. 506. 101. Effect cannot be given by this court to a stipulation requiring or consenting to the re- view on appeal of rulings made by a trial court, to which no exceptions appear in the case. — Ot. of App., Jan., 1881. Briggs ». Wal- dron, 83 N. Y. 582. 102. The case. It seems that where, on appeal to this court, cases are served which are defective in not containing the notice of appeal and the judgment and opinion of the General Term, it is not correct practice for respondent's attorney to return the case, and, upon failure to serve others, to enter order dismissing appeal. — Ct. of App., March,' 1881. Bliss v. Hoggson, 84 N. Y. 667. ' That the proper practice in such case is to move, upon notice, to have the cases corrected, or that corrected copies be served, and, in de- fault of such correction, that appeal be dis- missed, see lb. 103. The calendar — preferred causes. Notwithstanding the provision of Code of Civ. Pro., § 791, giving preferences among civil causes, a party claiming a preference in this court must comply with the directions of rule 20 ; i. e., he must state such claim in his notice of argument, and the grounds of the pref- erence, etc. — Ol. of App., Jan., 1881. Taylor v. Wing, 83 N. Y. 527 ; S. C, 1 Civ. Pro. 43. 104. An action for an accounting and parti- tion and other relief, is not entitled to a prefer- ence because the construction of a will is inci- dentally involved therein. — Ot. of App., Feb., 1881. Peyser v. Wendt, 84 N. Y. 642. 105. To give a cause a preference under the Code of Civ. Pro., ^ 791, subd. 5, as " an action for the construction of or adjudication upon a will," it must be expressly brought for that pur- pose, lb. 106. What questions are before the court. When, during the pendency of an ap- peal to this court, from an order denying a mo- tion to change the place of trial in the action, the plaintiff moves the cause for trial and takes judgment in the county wherein the venue is laid, this court has no jurisdiction to entertain a motion to set aside the judgment; it has only jurisdiction of so much as is brought up by ap- peal from the order. It seems that the motion should be made in the Supreme Court. — Ot. of App., Dec., 1880. Veeder v. Baker, 83 N. Y. 163. 10*7. When opinion of General Term may be examined. While on appeal from an order which expresses the grounds upon which it was put, but the expression is couplet! with phrases which create a doubt, the opinion of the court may be referred to, where no ground appears in the order, it cannot be qualified in its operation and effect by reference to the opinion. —Ot. of App., June, 1880. Fisher v. Gould, 81 N. Y. 228, 230. 108. Where an order, denying an application for an order of arrest or commitment, does not show that it was not made upon the merits, it will be so presumed, and the order is not review- able here. The opinion below cannot be looked into, unless the language of the order is ambigu- ous and needs aid for an understanding of the ground on which it went. — Ct. of App., June, 1880. Matter of Townsend, 81 N. Y. 644 ; 2fov., 1880, Clark v. Lourie, 82 N. Y. 580. 109. The order of Special Term was " in all respects affirmed " by the General Term. Held, that this court could only look to the order to ascertain the ground upon which the court be- low proceeded. — Ct. of App., Feb., 1881. Direct U. S. Cable Co. ». Dominion Teleg. Co., 84 N. Y. 153 ; reversing 22 Hun 568. 110. Revie'w of questions of fact. On appeal to this court from a judgment entered on a decision of the court or the report of a referee, no fact can be considered for the pur- pose of reversing a judgment unless it is either stated in the findings, or was requested to be found on uncontroverted evidence. — Ct. of App., Sept., 1880. Thomson v. Bank of British North America, 82 N. Y. 1. 111. Under Code of Civ. Pro., I 1838, where an order of General Term, reversing a judgment entered upon the report of a referee, does not state that it was made on questions of fact, it will be deemed to have been made on questions of law only. — Ct. of App., Jan., 1880. Weyer v. Beach, 79 N. Y. 409. 112. An order of General Term, reversing a judgment, entered upon a decision of the court, stated that the reversal was " upon, the law and the facts." Hdd, that it sufficiently appeared that the reversal was " upon a guestion of fact," within the meaning of the provision of the Code of Civ. Pro., i 1338, authorizing a re- view of such a question by this court. — Ot. of App., June, 1880. Van Wyck v. Watters, 81 N. Y. 352. 113. Extent of revie-w of referred causes. To sustain an exception to the re- fusal of a referee, to find facts as requested, it is incumbent upon the party to show that the ma- terial facts, so requested to be found, were estab- lished by uncontroverted evidence, and that if found they would have affected the result, — Gl. of App., Jan., 1880. Stewart v. Morss, 79 N. Y. 629. 114. No question can be raised in this court, upon a matter of fact, in a case tried by a referee, as to which no facts were found by the referee, or requested to be found. lb. 115. In an action upon a promissory note, where the defence was usury, i. e., that the note was executed by defendant for the accommoda- tion of the payee, and was transferred by him at a usurious rate of interest — there was no finding, or request to find, that the note was accommoda- tion paper, upcjn which question the evidence was conflicting; but the referee found that it was duly made and delivei-ed to the payee, and by him duly indorsed to plaintiff before matur- ity ; to these findings there were no exceptions. Held, that this court had no right, for the pur- pose of reversing the judgment, to find that the note was not business paper ; that, pnma facie., the note was given for value, and the burden was upon defendant to prove the defect alleged. — Ot. of App., June, 1880. Bayliss v. Cockroft. 81 N. Y. 363, 367 APPEAL, III. 17 116. Where, upon the trial of an action to compel the cancellation of a deed alleged to have been forged, the issue of forgery was tried by all the parties upon the theory that it depended upon the question whether the signatore to the deed was the genuine signature of the apparent grantor, and the referee found it was not execu- ted by him and was not his deed — HfM, that it could not be claimed upon appeal that the grantor may have acknowledged the deed and so bound himself thereby ; that the iinding, inter- preted with reference to the issue made, was equivalent to a finding that the deed was neither executed nor acknowledged by the grantor ; and that thefinding was conclusive here. — Ct. of App., Sept., 1880. Remington Paper Co. v. O'Dough- erty, 81 N. Y. 474. 117. wnat errors are ground for re- versal. The denial to the party who holds the affirmative of the issue, of the righf to open and close upon the trial, is ground for reversal in the Court of Appeals — Ct. qf App., April, 1881. Murray v. New York Life Ins. Co., 9 Abb. N. Cas. 309. 118. "What are not. The refusal of a trial court, to whom a case is submitted for determi- nation, to find, upon a question of law involved, as requested by the defeated party, is not error requiring a reversal of the judgment here, al- though the request might well have been granted, if this court arrives at the same final conclusion as to the right of recovery. — 08. of App., Nov., 1880. Loeb v. Hellman, 83 N. Y. 601. 119. Effect of failure to object in court below. Where, in an action upon an oral contract, the statute of frauds is not pleaded, and there is no objection to proof of the con- tract by oral testimony, or exception to any find- ing or conclusion which presents any question under that statute, no such question can oe con- sidered on appeal to this court. — Gt. of App., Sept., 1880. Bommer v. American Spiral, &c., Manuf. Co., 81 N. Y. 468. 120. Where the statute of limitations is set up as a defence, but no point is made in respect to it on the trial, and no exception taken, rais- ing any question under it, no such question can be considered here. lb. 121. It was objected that no competent order was made for the issuing of an attachment in the action ; this objection was not raised at Special Term. Upon the attachment was an indorsement signed by the clerk of the court stating that it was issued by special order of the court. Meld, that the presumption was that such an order had been made ; but in any event, as the objection was not raised below, it was not available here. — Ct. of App., Feb., 1880. Park B.Park, SON. Y. 156. 122. It is too late for a defendant to claim for the first time, on appeal to this court, that his answer contains a counter-claim which is admitted by not being replied to. It should be insisted upon and the attention of the court or referee called to it on trial, and if not allowed an exception should be taken. — Ct. of App., Feb., 1881. Muldoon a. Blackwell, 84 N. Y. 646. 123 .It was claimed on appeal, in an action of ejectment, that a judgment for the entire mesne profits h»d been taken against two of the defend- ants without proof of possession by them, or either of them, of the entire premises. Held, that as it did not appear by the record that the point was brought to the attention of the trial court it was not available here.— CJ. of App., Sept., 1880. Hynes v. McDermott, 82 N. Y, 41. 124. "Waiver of objection. Judgment having been entered against defendant, upon an order overruling his demurrer to the complaint, he appealed to the General Term. He subse- quently moved at General Term for leave to discontinue his appeal, to withdraw his demurrer and to answer, which motion was, by consent of counsel on both sides, there heard. Held, that upon appeal from an order granting the appli- cation, the objection could not be raised that the n)otion to withdraw the demurrer and answer could not priiperly be made at General Term. — Ct. of App., June, 1880. Vanderbilt v. Schreyer, 81 N. Y. 646. 125. Allowing amendments. A Gen- eral Term of the Supreme Court has power to amend its record, after an appeal to this court, by inserting in an order of reversal that its decision was made upon questions of fact. — Ct. of App., Feb., 1880. Guernsey v. Miller, 80 N. Y. 181. 126. The pleadings in an action will not be amended on appeal to this court for the purpose of reversing a judgment. Ct. of App., June, 1881. Volkening v. DeGraaf, 81 N. Y. 268, 272. 127. The decision of the General Term herein was filed nearly two years, and the ap- peal to this court was taken more than one year ago. The respondents' counsel requested, in case the court reached a conclusion difierent from that of the General Term, that it would suspend its decision, to give opportunity to apply to that court for an order showing that the reversal was upon the facts as well as the law. It did not appear that the reversal was upon the facts. Held, that the request could not be granted ; that it would not be proper to allow a new decision to be made by the court below to defeat the appeal; and that if the re- versal was upon the facts, the respondents should have taken proceedings before the argument and submission of the case to procure an amend- ment of the order of General Term. — Ct. of App., Oct., 1880. Hamlin v Sears, 82 N. Y. 327. 128. When an afOrmance is proper. The caption of an order for the service of summons by publication was "At a Special Term of the Supreme Court, * * * held at chambers ;" and there was a direction to enter it. It did not appear that it was entered as a court order ; it was in fact made by tlie judge whose name appeared in the caption, out of court, in his private chambers; it was signed with his initials and those of his o6Bce ; and in the body thereof it purported to be made by the judge. The General Term held that the caption and the direction to enter were not con- clusive, and that the order was good as a cham- ber order of the judge. Held, that as the question was purely one of form, this court would not differ with the court below on so technical a point of practice. Order, therefore, affirmed. — Ct. of App., April, 1880. Phiuney v. Broscheil, 80 N. Y. 544; affirming 19 Hun 116. 129. Rendering judgment absolute on affirmance. Under the provisions of the Code of Civ. Pro., §§ 191,194, requiring a party, on appeal from an order granting a new trial, to stipulate for judgment against him in 18 APPEAL, III., lY- case of affirmance, and directing this court, in such ease, to render judgment absolute upon the right of the appellants ; also authorizing such proceedings in the court below upon the remit- titur as are necessary to render the judgment effectual, the judgment must be absolute aga,inst the appellant upon the whole matter and right in controveisy in the action. — Ct. of App., March, 1880. Hiscock V. Harris, 80 N. Y. 403. 130. Where, therefore, an order, reversing a judgment in favor of plaintiff and granting a new trial, is affirmed on appeal to this court, and judgment absolute ordered, in an action wherein the answer sets up a counter-claim, defendant is entitled to such judgment upon the remittitur as the facts alleged by him in his answer entitle him to. lb. 131. WTien a reversal is proper. While if, in proceedings under the New York city charter of 1873, (§ 28), by the head of a department to remove a subordinate, there is any evidence from which an inference of in- capacity or unfitness can be drawn, this court will not reverse his decision; there must be some evidence to justify a removal, and where there is none the removal is not " for cause," and the order may be reversed here. — Ot. of App., Oct., 1880. People, ex rel. Campbell, v. Campbell,,82N. Y. 247. 132. Re-argument. The omission of the appellant to present a point appearing in the case upon the argument of a cause in this court is not, as a general rule, a ground for re-argu- ment ; the ordinary rule that an exception not raised on Argument is to be deemed abandoned will govern. — CJ. of App., June, 1880. • Rogers V. Laytin, 81 N. Y. 642.- 133. Dismissal of appeal. For the purposes of a motion to dismiss, an appeal is to be regarded as pending where notice of appeal ■was duly served and undertaking given, and the appellant has not abandoned the appeal. — Ct. of App., Dec., 1880- Stevens k. Glover, 83 N. Y. 611. 134. The Court of Appeals will not decide mere abstract questions from the determination of which no practical result can follow. Where, therefore, on appeal from an order-denying an application for a mandamus to compel the com- mon council of a city to appoint certain officers, it appeared that the official term over which the controversy arose had already expired — Held, that the appeal should be dismissed. — Ct. of App., Nov , 1880. People, ex rel. Greer, v. Common Council of Troy, 82 N. Y. 575. 135. Where no undertaking is given on ap- peal, and no return filed and no steps taken in this court, there is no appeal, and a motion to dismiss cannot be granted. — Ot. of App., Sept., 1880. Benedict, &c., Manuf. Co. v. Thayer, 82 N. Y. 610. 130. This action was brought to recover back two items of moneys alleged to have been extorted from plaintiff without consideration and wrongfully; the defences were a denial of the wrongful acts charged and averments that one of the items was paid for services rendered by a bank of which defendant was president, and that the payment was to said bank and not to defendant ; as to the other item that it was a charitable donation to a church of which de- fendant was treasurer, and that both were paid voluntarily; evidence was given on the trial supporting the defence as to both items. Upon appeal from an order of General Term revers- ing a judgment in favor of plaintiff entered on the verdict of a jury and granting a new trial — Seld, that, assuming the payments were made without consideration, and though voluntarily made could be recovered back (as to which gwere), yet if the defendant was not guilty of the wrongs charged, and as to one of the items simply acted as agent of his bank in receiving the money, and the payment was in fact to the bank and went to its use (which facts it was conceded by appellant's counsel were to be as- sumed in favor of respondent), defendant was not personally liable for that item, but the action should have been against the bank ; that at least as to so much of the recovery it was erroneous, and being wrong in part a new trial was proper. Appeal, therefore, dismissed. — Ct. of App., Sept., 1880. Amer. Nat. Bank v. Wheelock, 82 N. Y. 118. 137. Effect of the appellate judg- ~ m.ent. As to the power of the court of original jurisdiction to modify a judgment of the Special and General Term, after affirmance by the Court of Appeals, see Sheridan v. Andrews, 80 N. Y. 648. 138. The remittitur, and its effect. This court does not lose jurisdiction of a cause brought here upon appeal until the remittitur has been filed in the court below, and that court has taken some action thereon. — Ct. of App., Dee., 1879. Smith v. Village of Nelliston, 79 N. Y. 638. 139. Restitution on reversal. Where, under an adverse judgment in an action in the nature of a quo warratito, the defendant wiip,wa8 ■in the possession of the office, having a certifi- cate of election from the duly constituted board of canvassers, was removed from , the office — Held, that upon reversal of the judgment here, the court had power and it was proper to com- pel restitution of the rights lost by means of the erroneous judgment (Code of Civ. Pro., § 1323); also, that the court could not look into the case to see which way the merits inclined as between the two contestants ; the defendant having the adjudication in his favor required by the statutes, and by virtue of it having held and exercised the office, this is conclusive until the certificate has been corrected or shown to be false by judicial determination. (1 Kev. Stat., 118, § 17.)— 0(. of App., Feb., 1880. People, ex rel. Dailey, v. Livingston, 80 N. Y. 66. rv. Appeals tbom Maeute Cottrt to Coubt OP Common Pleas, ik New Yoke City. 140. Notice of appeal — stipulation. The provision of the act of 1874, in reference to the Marine Court of the city of New York, (Laws of 1874, ch. 545, § 9, ) which requires that a notice of ajipeal, from an order of the General Term of said Marine Court to the Court of Common Pleas, reversing a judgment and granting a new trial, shall " contain an assent, on the part of the appellant, that if the order be affirmed, judgment absolute shall be entered against him," etc., was not repealed or abro- gated by the provision of the act of 1875, (Laws of 1875, ch. 477,) in reference to said Marine Court, which regulates appeals from the General Term thereof.— 0«. of App., Dec., 1879. Gordon V. Hartman, 79 N. Y. 221. APPEAL, IV., Y., VI., VIL 19 141. Judgment absolute on afiBrm- anoe. Where the Common Pleas affirms the order appealed from, and gives judgment abso- lute on the stipulation against the appellant, the judgment is final ; and no appeal therefrom lies to the Court of Appeals. lb. 142. Where upon such an appeal it appears that there was a controverted question of fact involved to go to the jnry, judgment absolute must be given against the defendant. — Com, Tims., (Gen. T.,) April, 1881. Webber v. Truax, 61 How. Pr. 34. v. Appeals' feom Cotjktt Cotjets to Supreme Coitbt. 143. From, judgment on report of referee. A judgment on a report of a referee in an action commenced in a justice's court and re-tried in a County Court, may be reviewed at General Term of the Supreme Court, without a motion for a new trial first made in the County Court.— Supreme Ct., {3d Dept.,) Sept., 1880. Cook V. Darrow, 22 Hun 306. 144. What orders are appealable. An order of the County Court, setting aside a sale made by an assignee for creditors, on a mo- tion, is appealable to the General Term.; — Sw- preme Ct., (3d Dept.,) Nov., 1880. Matter of Eider. 24 Hun 91. 145. What are not. No appeal lies to the General Term from an order of the County Court denying a motion for a new trial, made in an action originally commenced in a justice's court. The appeal should be taken from the judgment entered in the County Court. — Su- preme Ct., (3d Dept.,) Sept., 1880. Perry v. Kound Lake Camp Meeting Association, 22 Hun 293. 146. The provision of the Code of Civ. Pro., ? 1342, in reference to appeals to the Supreme Court from orders of a County Court, confines the appellate jurisdiction to orders in actions originating in tlie County Court. There- fore — Held, that an order of a County Court dis- missing an appeal from a judgment of a justice of the peace, was not appealable to the Supreme Court. — Ct. of App., Jan., 1880. Andrews v. ■Long, 79 N. Y. 573. S. P., Fish v. Thrasher, 21 Hun 15; Roberts v. Marson, Id. 363. 147. Effect of the appeal -while pend- ing. On a motion to set aside a county judge's order appointing a receiver in supplementary proceedings, it appeared that an appeal had been taken to the General Term, which appeal was still pending. Held, that such appeal must be deemed to be a waiver of such irregularities, if any there were, as were not brought up by it for review, and as to all such alleged irregularities and improper acts of the county judge as were covered by the appeal, they would be considered when the appeal should be heard at General Term. All action proper to be taken at Special Term, either to vacate it or correct it, should be ttaken before the bringing of the appeal from it to the General Term. — Supreme Ct., {Saratoga ;&). T.,) Aug., 1880. Tinkey v. Langdon, 60 How. Pr. 180. VI. AppeaiiS feom Suerogates' Courts. 148. When an appeal will lie. The ■proper remedy for erroneous allowance of coun- s«el fees by a surrogate on final accounting of executors, is by appeal, not by motion to open the decree and vacate the allowance. — Ct. of App., April, 1880. Marsh v. Avery, 81 N. Y. 29. 149. When it will not lie. A surrogate has power, in proceedings to prove a contested will, after the testimony has been closed and the case submitted, to grant an order, on motion opening the case, to allow a witness to correct his testimony. The granting of the motion is in the discretion of the surrogate, and is not re- viewable here.— Ct. of App., June, 1880. Mar- tiahoSv. Martinhoff, 81 N. Y. 641. 150. Procedure on reversal. Upon reversal on appeal on the law to the General Term, from the decree of the surrogate of New York county establishing a lost or destroyed will, it is proper to remit the proceedings to the surrogate, and costs should be awarded against respondent. — Ct. of App., Feb., 1881. Sheridan V. Houghton, 84 N. Y. 643. 151. The probate of a codicil to a wiU was contested, both on the ground of want of due execution, and of undue influence. There was evidence tending to sustain the latter ground. The surrogate refused to admit it to probate upon the first ground without passing upon the latter. The General Term, upon appeal, re- versed the decree of the surrogate, and directed him to admit the codicil to probate. Hdd, error ; that the case should have been remitted to the surrogate to be heard upon the question of undue influence.— =■61!. of App., March, 1881. Dack V. Dack, 84 N. Y. 663; nwdifying 19 Hun 630. VII. Enforcement of Appeal Bonds. 152. Justification. Sureties to an under- taking on appeal to the General Term are not released from their liability by their failure to justify after being excepted to, and it is com- petent for the respondent to waive the justifica- tion of the sureties after he has excepted to their sufficiency; as the justification is a matter relating to his protection, and not that of the appellant. — Superior Ct., (Qen.T.,) May, 1881. Manning v. Gould, 1 Civ. Pro. 216. 153. It may be said that the sureties are, in law, liable upon the proper execution and de- livery of the undertaking, and that all else in re- gard to the undertaking is matter of practice. lb. 154. Liability of the sureties. Where, upon an appeal to the Court of Appeals irom an order granting a -new trial, the court affirms the order, and renders a judgment absolute in favor of the respondents, in pursuance of sec- tion 194 of the Code of Civil Procedure, the sureties upon the undertaking, given by the appellants, are liable for all the costs in the action, and not simply for those incurred by the appeal to the Court of Appeals. — Supreme Ct., (Isi Dept.,) Nov., 1880. Burdette v. Lowe, 22 Hun 588. 155. Upon an appeal from a judgment against defendant W., in an action for the re- covery of possession of real property, he gave an undertaking to stay proceedings, in the form prescribed by the Code of Pro., § 388, con- taining among other things this provision that "during the possession of such property by the appellant he will not commit or suffer to be committed any waste thereon." The judg- ment appealed from was affirmed by the General 20 APPEAL, VII.— ARBITRATION AND AWARD, I., II., III. Term. W. appealed to this court, giving the requisite undertaking with new sureties. While this appeal was |ie:iiling, W., who remained in possession, committed waste. In an action on the undertaking given on appeal to the General Term— i7eW, that the surety was liable for the waste so committed ; that his liability was not limited to waste committed pending the appeal to the Supreme Court.— O!. of Ayp., Dee., 1880. Church v. Simmons, 83 N. Y. 261 ; re- versing 19 Hun 220. 156. It seems that if, after judgment of affirmance, the defendant had continued in pos- session by permission of the plaintiff under an agreement constituting the relation of landlord and tenant, the obligation of the surety would not extend to subsequent acts of the tenant. lb. ISY. It seems, also, that after such judgment the surety would have been entitled to call upon the plaintiff to execute the judgment and re- lieve him from liability ; and unreasonable delay in proceeding after such notice would discharge the sureties from liability as to sub- sequent acts. lb. 158. It seems, also, that the sureties in the first undertaking would be entitled to resort, for their indemnity, to the undertaking on the sec- ond appeal. lb, 159. — of surviving surety. Where, upon an appeal to the General Term, the ap- pellant, in order to stay proceedings during the pendency thereof, gave a joint undertaking with two sureties, one of whom thereafter became insolvent and died — Held, that upon the affirm- ance of the judgment appealed from, the sur- viving surety was liable to the plaintiff for the amount secured by the undertaking. — Supreme Ct., {3d Bept.,) Sept., 1880. Comins v. Pottle, 22 Hun 287. 160. "What change of parties will not discharge surety. Where, subsequent to the giving of an undertaking on appeal to the General Term the appellant died, and the action was revived against his administratrix and the judgment affirmed on appeal — Held, that under section 815 of the Code of Civil Procedure the undertaking was not affected by such change of parties, and that the sureties were liable. Manning v. Gould, supra. As to taking exceptions, framing the bill, the hearing, &o., see Exceptions. For other methods of review, see Oebtiobaei ; Eeeor ; New Teiai. As to costs on appeal, see Costs, II. As to appeals from Justice^ courts, see Jtrs- TiCE OP THE Peace. APPEARANCE. Action, 11, 12. ARBITRATION AND AWARD. I. The Submission; and Pboceedings-, Thebecndeb. II. ThbAwaed; and how Enfoeced. III. Impeachment of the Awaed. APPLICATION OF PAYMENTS. Debtob and Ceeditok, II. I, The Submission; and Peoceedings Theeetjndeb. 1. "Who may make a submission.. That the board of supervisors has power to submit to arbitration the validity and reasona- bleness of a claim made against the county, se& People, ex rel. Benedict, v. Supervisors of Oneida Co., 24 Hun 413. 2. As to the power of executors to submit to arbitration differences arising between them and devisees or legatees, and the propriety of submitting such questions to the counsel for the estate as arbiter, see Whitney v. Phoenix, 4 Eedf. 180. 3. Oonsti;uing the submission. A submission by the parties hereto to arbitrators, in the usual form, contained this clause : "The- arbitration shall be conducted and decided upon the principle of fair and honorable dealing be- tween man and man." Held, that this did not justify a decision of the arbitrators that the submission limited them to passing upon the statements of the parties onlv. — Ot. of App., Sept., 1880. Halstead v. Seaman, 82 N. Y. 27. 4. Swearing the arbitrators. As to what amounts to a waiver of the failure of an arbitrator to be sworn, see Kelsey v. Darrow, 22 Hun 125. II. Tee Awaed ; and how Enfoeced. III. Impeachment of the Awaed. 5. In general. The general rule that the decisions of arbitrators are not reviewable on the mere ground that they are erroneous, ap- plies only to their decisions on matters sub- mitted to them. Halstead v. Seaman, supra. 6. The construction by arbitrators of the sub- mission to them is not conclusive ; it is for the- court to determine whether they have exceeded their powers or refused to exercise them. lb. 1. In an action to recover an item allowed plaintiffi by an award, the defendants in their answer alleged, among other things, that the arbitrators exceeded their jurisdiction, that the award was void upon its face, and that it was corruptly and fraudulently made, by the pro- curement of the plaintiffs, and therefore void ; also, that it was invalid for other reasons stated. The relief demanded was that the award be adjudged void, that the same be vacated and set aside, and the submission be declared to be re- voked, and that the complaint be dismissed. Plaintiffs replied, denying the facts stated in the counter-claim. Plaintiffs obtained judgment sustaining the award, and for the sum claimed ; this was reversed by the General Term, and new trial granted. The order of General Term was affirmed here, and judgment absolute err ARBITRATION AND AWARD, HI.— ARREST, I. 21 ■dered for defendants. Judgment of affirmance ■was entered on the remiUibir, which also con- tained a clause adjudgin" the contract of sub- mission to arbitrators, and the award to be void, and setting aside the same, and adjudging all -acts and proceedings under and in pursuance of the submission and award to be void. On mo- tion to strike out said clause — Sdd, that the judgment entered was too broad ; that there were no allegations in the pleadings showing the contract of submission to arbitration to be void ; and there was no authority for adjudging •the proceedings and acts done under the sub- mission and award to be void ; but that defend- ants were entitled to have the award adjudged void, and all subsequent proceedings depending solely upon it, leaving the submission to stand. — Ci. of Arm., March, 1880. Hiscock v. Harris, 80 N. Y. 403. 8. —for misconduct of arbitrators. The refusal of an arbitrator to hear testimony which is pertinent and material, is sufficient misconduct to authorize the setting aside of his ^ward, although he may think he has sufficient other evidence. Halstead v. Seaman, siwpra. 9. The statements presented by the parties ■were conflicting ; plaintifif insisted upon calling witnesses in his behalf to disprove defendant's statements, and named two witnesses whom he offered to produce. A majority of the arbitrar tors refused him permission and refused to re- ceive any evidence other than the statemerfts, basing their refusal upon the ground that under the submission their powers were limited tb the statements. Hdd, that it was not necessary for _plaintiff, in order to preserve his rights, to pro- duce or name his witnesses, or to state what facts he intended to prove by them ; and that the re- fusal was misconduct which vitiated the award. lb. As to the appointment, powers and duties of Referees, see Keperence, and titles there re- ferred to. As to Referring claims against decedents' estates, see Executors and Administratgrs, III. ARRAY. As to Ohaltenging jurors, collectively or indi- Tidually, see Tbiai,, IV., VIII. ARREST. X Isr CivrL Actions. 1. Under the SlUwdl act. 2. Under the codes. (a) The right to an arrest. (6) Obtaining and service of the order. (c) Motion to vacate. H. In Cbiminai, Cases. I. In Civil Actions. 1. Under the SlUwell act. 1. 'What -will justify the issue of a ■warrant. To justify an arrest under the non-imprisonment act of 1831, on the ground of an unjust refusal to apply property in satisfac- tion of a judgment, a specific demand and re- fusal must be shown ; the mere statement of an unjust refusal is insufficient, especially when the charge is made on information and belief. — Supreme Ct., [Oen. T.,) Feb., 1880. Matter of Townsend v. Nebenzahl, 8 Abb. N. Cas. 427. 2. Under the codes, [a) The right to an arrest. 2. In general. The liberty of a citizen is of quite as much importance as the preservation or security of property, and the provisions of the code, in relation to obtaining orders of ar- rest, should be strictly construed. — Supreme Ct., (1st Dept. Sp. T.,) April, 1881. Southern, &c., Nav., &o., Co., V. Sherwin, 1 Civ. Pro. 44. 3. The issuing of an order of arrest is not a matter of course, and it is the duty of a plain- tiff who invokes the aid of the court in obtain- ing such an order, to see that he has complied with all the requirements of law applicable thereto. lb. 4. When a party who has elected to take judgment as for goods sold cannot sustain an order of arrest for conversion, see Fields v. Bland, 81 N. Y. 239. 5. In action on foreign judgment. A plaintiff suing upon a foreign judgment (in this case, a judgment of a Circuit Court of the United States sitting in another.state,) is entitled, under Code of Civ. Pro , § 552, to an order of arrest, if the original cause of action was of such a nature as would have authorized an ar- rest under the provisions of the code. — Ct. of App., July, 1881. Baxter v. Drake, 1 Civ. Pro. 225; S. C, 61 How. Pr. 365 ;., affirming 22 Hun 565. 6. Where the complaint in an action upon a foreign judgment was confined wholly to the allegations of recovery of such judgment, &c., but it appeared by affidavits on which an order of arrest was granted, that the original cause of action was a conversion of property — Held, that the original cause of action and the right to an order of arrest were not merged by the recovery of the foreign judgment, and that an order of arrest might be granted upon affidavits showing the original existence of a proper ground for arrest, lb. 7. Grounds: Disposal of property with intent, &c. In an action brought upon a promissory note, an order for the arrest of the defendant may be granted where it is shown that he has, subsequently to the making of the note, disposed of his property with intent to defraud his creditors, although such fraudu- lent acts are not set forth in the complaint. — Supreme Ct., {1st Dept.,) May, 1881. Duncan v. Guest, 24 Hun 639. 8. Second arrest not favored. Plain- tiff commenced an action and obtained an order of arrest on the ground of fraudulent represen- tations made by defendant, which order was vacated upon the ground that the alleged fraud- tileut representations did not apply to the whole 22 AREEST, I. cause of action. On motion by plaintiff for leave to discontinue the action. Held, that as plaintiff's object was to commence a new action and obtain a second order of arrest, leave to discontinue should not be granted. — Chm. Pleas, {Sp. T.,) Jan., 1881. Livermore ». Berdell, 60 How. Pr. 308. (6) Obtaining and service of the order. 9. Povrer to grant it. So much of sec- tion 551 of the Code of Civil Procedure as pro- vides that, in a case specified in subdivision 4 of section 550, an order of arrest can only be granted by the court, is not applicable to the first judicial district, and in the said district such an order may be made, by a judge out of court, at any time. — SviprerM Gt., {1st Depi.,) June, 1880. Boucicault v. Boucicault, 21 Hun 431. 10. What must be alleged in the complaint. To authorize the granting of an order of arrest, under Code of Civ. Pro., § 549, subd. 4, as amended in 1879, the complaint must allege the debt which is the fundation of the cause of action therein set forth, to be fraudu- lent or to have been fraudulently contracted, and must limit the application for the order to such cause of action. — Supreme Ct., {1st Vepl.,) June, 1880. Easton v. Cassidy, 21 Hun 459 ; Compare, King ». Arnold, 84 N. Y. 668. U. The order. It is no objection to an order of arrest, granted under the Code of Civ. Pro., ? 550, subd. 4, that it prescribes the form of the undertaking to be taken by the sheriff, if such form corresponds with that required by subdivision 1 of section 575 of said code. Bou- cicault V. Boucicault, supra. 12. Undertaking to procure dis- charge. If an unauthorized security is de- signealy taken by a public officer from a person under arrest, as a ground of his discharge, it is void as having been taken colore officii, although the officer may not have designed to violate the law.— Ci. of App., Feb., 1880. Cook v. Freudeu- thal, 80 N. Y. 202". 13. Defendant H., having been arrested upon an order of arrest issued in an action to recover the possession of personal property, was dis- charged from arrest upon giving to the sheriff an undertaking, in and by which the sureties undertook that H. should " at all times render himself amenable to the process of the court, * * * and for the payment to the plaintiffs of such sum as may, for any cause, be recovered against the defendant," instead of an undertak- ing for the delivery of the property to the plaintiff, if delivery be adjudged, etc., as pre- scribed by Code of Pro., §^ 187,211. In an action upon the undertaking — Held, that the final clause therein, i. e., as to payment, was to be construed in connection with the provision of said code (^ 277), directing the form of judg- ment in such an action ; and that, as so con- strued, it was not an absolute undertaking to pay the value of the property, but only to pay on condition that no delivery can be had ; but that the undertaking was void as having been taken colore officii, within the meaning of the statute (2 Rev. Stat., 286 ? 59,) for the reason that it bound the sureties for the amenability of H. to process, an obligation which could not be required from H. as a condition of his relief. lb. 14. It was claimed that this provision in tlie undertaking should be rejected as surplusage,, for the reason that an execution against the body could not issue on the judgment in the action,, and so that no liability could arise under the clause in question. Held, 1. That this ground was untenable, as an execution against the body could have been- issued (Code, ? 288,) after a return unsatisfied of an execution against the property of H. 2. That in the absence of any evidence as to- the circumstances under which the undertaking was given, it was to be assumed that the sheriff designedly took the undertaking in the form in which it was given. 3. That the undertaking could not be treated as an agreement between the parties to the re- plevin suit, and so enforceable by plaintiffs ;. that, although taken by the sheriff for the benefit of the plaintifis, it was also for his own protec- tion, and in taking it he acted, not as the private agent of the plaintiffs, but as agent of the law. lb. _ . 15. The doctrine of ratification by the plain- tiffin an action, of an unauthorized act of the sheriff, has no application to the case of a se- curity taken by him in the assumed exercise of his official authority and duty, from one under arrest, containing conditions not embraced in the statutes. lb. 16. Where the sheriff, after an arrest had been made, under an order which specified, as prescribed by the Code of Procedure, ? 183, the sum for which defendant should be held to bail, and after declining to accept a bond executed by one instead of by two or more sufficient bail as prescribed by said code, § 187, did agree, at defendant's solicitation, to take to plaintiff's at torneys an undertaking executed by one in double the amount specified in the order, and if it should be approved and accepted by them,, that defendant should be discharged, the latter agreeing that if they should decline to accept he would, on being notified, give a new under- taking, as prescribed by the code, and in the- meanwhile should remain in the custody of his bail, and where said attorneys accepted the un- dertaking so executed— fleW, that the under- taking, when thus accepted, might be regarded as an agreement made between the parties to. the action, and not as an undertaking taken by the sheriff under claim or in the exercise of official authority ; and that so considered it be- came operative and binding, though not as a statutory obligation.— Qi. of App„ March, 1881. Toles V. Adee, 84 N. Y. 222. Consult Bail, I. 17. Extinguishment of order by exe- cution against the body. Where judg- ment in an action has been perfected against the defendant and he has been charged in execution, a provisional order of arrest issued thereon is extinguished, and is thereafter of no force or validity ; it is not revived by a reversal of the judgment. Therefore— jffcM, that upon such reversal the relators, who were held in confine- ment under the execution, could not be held under the order of arrest, but were entitled to their discharge— a. of App., AprU, 1880. Peo- ple, ex rel. Roberts, o. Bowe, 81 N. Y. 43 ; S. C, 8 Abb. N. CajS. 234. (c) Motion to vacate. 18. The proper place to move. Codfr of Civ. Pro., I 568, authorizing a motion to va- ARREST, I., 23 cate an order of arrest, founded upon proof by aflBdavit on the part of the defendant, to be made " to the court, or, if the order was granted by a judge out of court, to any judge of the court upun notice," is not in conflict with, nor does it abrogate the provisions of section 769 of the said code, which requires all motions, upon notice, in an action in the Supreme Court, to be made within the judicial district in which the action is triable, or in a county adjoining it, except that when it is triable in the first judicial district, the motion must be made therein. — Supreme Ct., (IsJ Depl.,) Nov., 1880, Sutton v. Sabey, 22 Hnn 557. 19. A motion under Code of Civ. Pro., § 572, to discharge a defendant lield in actual custody under an order of arrest, on the ground that the plaintiff has neglected to enter judgment in the action within one month after it was in his power so to do, need not be made in the judicial district or in the county adjoining the judicial district in which the action is triable, but may be made to a judge of the court in which the action was commenced, within the county where the defendant is held in custody. — Supreme Ol., (2d Dept.,) Sept., 1880. Sumner «. Osborn, 22 Hun. 13. The right of the defendant to a discharge depends upon the fact of his being held in actual custody, and not upon the fact that the plaintiff or his attorney knew that he had been surrendered by his bail, and was so held. 15. 20. Evidence on the hearing. When the facts on which an order of arrest is granted are not extrinsic to the cause of action, but the nature of the action alone furnishes the authority for granting it, it should not be vacated upon evi- dence tending to disprove the existence of the cause of action ; the merits of the controversy should not be determined upon affidavits, but should be allowed to await the trial of the ac- tion.— S«pre7ree a., (2d Dept.,) Sept., 1880. Peck ■D. Lombard, 22 Hun 63. 21. Opposing the motion. The plain- tiff cannot defeat the motion to vacate or modify, by objecting that it has been held under con- sideration more than twenty days, in violation of Code of Civ. Pro., § 719, as amended in 1879, which requires such motion to be decided within twenty days. An order referring such a motion to a referee, though made after the lapse of more than twenty days, is not void, nor to be set aside, on plaintifl's motion, on that ground. — Buff. Superior a., {Sp. T.,) Dec., 1879. Stafford «. Ambs, 8 Abb. N. Cas. 237. 22. Amending the complaint on the motion. Where an order of arrest was granted upon a complaint which failed to set forth a cause of action, and an application on behalf of the defendant to vacate the order was founded on the papers upon which it was granted, and the plaintiff served upon the attorneys for the defendant an amended complaint, and moved, with a view of sustaining the order, that the original complaint be declared amended nunc pro time, as of the date of its service upon de- fendant— Hdd, 1. That the motion to so amend the complaint should not be granted for the purpose of upholding the order of arrest. 2. That as the motion to vacate the order was made upon the plaintiff's own papers, to pAmit him to introduce an amended complaint would be to allow him to refer to papers other than those on which the order was granted, and would be in violation of section 568. — Supreme Ct., [1st Dept. Sp. T.,) April, 1881. Southern, &c., Nav., &c., Co. V. Sherwin, 1 Civ. Pro. 44. 23. "When the motion should be granted. An order of arrest was issued in an action to recover damages for wrongfully and maliciously cutting down and carrying away cer- tain telegraph poles, with the wires and insula- tors attached thereto, which were located in a highway in the State of New Jersey, and formed part of a continuous telegraph line in operation in that state. On motion to vacate the order of an-est — Held, that the order was not properly granted ; that as the poles were affixed to the soil they were part of the realty, and the cut- ting down of the same was a trespass, the dam- ages for which could only be recovered in an ac- tion quare elaumm fregit ; that the cutting down and removal charged was one continuous trans- action, constituting but one cause of action, which could not be divided, and was local ; also, that the objection as to jurisdiction could be taken on such a motion ; as, if the order of arrest was granted without authority, defendant was entitled to have it vacated, and was not bound to raise the question by answer or demurrer. — Ot. of App., March, 1880. American Union Teleg. Co. v. Middleton, 80 N. Y. 408. 24. It appeared, by the affidavits, that de- fendant cut the poles in a highway, and carried them to the ditches and side fences of the road, and left them. Held, that conceding the ))oles and wires could have been made the subject of a conversion after they had been severed, no such conversion actually took place; also, that as the order of arrest was granted for the cut- ting, as well as the conversion, even if such conversion took place, the order shciuld be va- cated, for the reason that the right of arrest is not applicable to all the causes of action. lb. 25. An order of arrest was granted on affi- davits showing that certain personal property belonging to plaintiff had been intrusted to defendant S., upon her agreement that she and the other defendant would sell it for the plain- tiff and account to him for the proceeds, in- stead of which they had secreted and taken it away. On motion to vacate the order it ap- peared that after the property had gone into the possession of S.. plaintiff accepted from her a confession of judgment ; the statement upon which it was entered declared that the property was "sold and delivered" to her, and that for its value see was indebted to plaintiff. After the facts alleged to show conversion were known to plaintiff he issued an excutiou upon said judgment and collected a part thereof. Plaintiff in opposition alleged that the judg- ment was taken as security merely. Held, that the judgment was conclusive against plaintiff upon this question ; that by accepting and Enforcing it by execution he must be deemed to have made his election to treat the property as that of S. under a sale from him, and that he could not now change his ground ; and that, therefore, a refusal to vacate the order was error. —Ct. of App., June, 1880. Fields v. Bland, 81 N. Y. 239. 26. This action was brought to recover moneys alleged to have been fraudulently em- bezzled and misappropriated by defendant while acting as a book-keeper for plaintiff. 24 ARREST, I., II.— ASSAULT. Upon a motion to vacate an order of arrest granted herein, the court below found tliat a portion of the sum sought to be recovered had probably been fraudulently appropriated by defendant, and that the residue had been ob- tained and used by him, with the plaintiff's knowledge and consent, and held that, inas- much as the demand, upon which an order of arrest could have been properly granted, had been united with one upon which it could not be granted, that the order should be vacated. SeM, that the order was properly vacated. — Supreme Ct., {1st Dept ,) June, 1880. Easton v. Cassidy, 21 Hun 459. 27. What defects in an aflSdavit for an order of arrest will warrant a setting aside of the order and a denial of the application to amend, see Jones v. Piatt, 60 How. Pr. 73. 28. Bequirlng stipulation not to sue for false imprisonment. The court, in granting a discharge from arrest when the ar- rest was made upon an execution issued without authority of law, has no power to impose a con- dition that the party thus discharged from an unlawful arrest shall not bring an action to re- cover his damages for such unlawful imprison- ment. The irresistible effect of such a rule would be to compel a party to surrender one right to obtain another right to which he was entitled absolutely. — Supreme Ct., (Ohamh.,) Nov., 1880. Mayer v. Eothschild, 59 How. Pr. 510. 29. The rule that where an arrest is made on process void for want of jurisdiction, a con- dition not to sue for false imprisonment cannot be lawfully imposed on a motion to vacate the process, applied. Matter of Faulkner v. Morey, 22 Hun 379. II. In Criminal Cases. SO. Arrest ■without -warrant. A police officer or other known conservator of the peace, may lawfully interpose to prevent a breach of the peace, and so long as there remains any danger of it the duty of interference continues. He has the right to remonstrate against noise and disturbance in the street, and if an assault upon him be attempted for so doing, he may arrest the offender, — Superior Ct., April, 1880. Mclntyre v. Eaduns, 46 Superior 123. 31. What constitutes a breach of the peace, also the general rights and duties of police officers in making arrests, considered by the court. lb. 32. A police officer is not authorized with- out process, to arrest a person as a common prostitute, on the ground that she is a disor- derly person, unless the offence was committed in his presence.— (Supreme Ct., (3d Dept.,) Sept., 1880. People, ex rel. Kingsley, v. Pratt, 22 Hun 300. 33. A city ordinance providing that ''po- licemen shall have power * * * to arrest * * * all vagrants, common prostitutes, drunkards and other disorderly persons found in the city," must be construed as a power to arrest such offenders in the manner required by the general common and statutory law of the state, and not as giving additional power to such officers, not warranted by and not in har- mony with such general law. lb. As to putting in bail, see Bail. As to execution against the person, see Execu- tion, II. ARSON. 1. Averment of owiiership of build- ing. The indictment charged the prisoner as accessory to the crime of arson in the first de- gree; it charged tliat ihe fire was set, by tlie principals in the nighl-tiine, .and burned the dwelling-house of K., in which he then was. It appeared that the building was a five-story tenement-house, having a common entrance in front and in the rear. The front entrance opened into a hall-way, used in common, and the apartments in the several floors openeii into a cJhimon hall. The prisoner, with his wife, occupied three rooms ; K., with his family, occupied three adjoining rooms ; there was no direct communication between the rooms of K. and those occupied by the pri,soner; the fire was set in the prisoners rooms and burned por- tions of them. Held, that the indictment was well drawn; that the building was a dwelling- house, and was the dwelling-house of K. within the meaning of the statute defining arson in the first degree. (2 Eev. Stat. 657, ? 9.)—Ct. of App., March, 1880. Levy ■„. People, 80 N. Y: 327. 2. Evidence. The reception of testimony that the prisoner indicted as an accessory, con- ferred with the principals after the fire — Held, not error, in view of the fact that the prisoner afterwards denied that he knew them at all. lb. ASSAULT. l._ Assault -with intent to kill — indictment. A count in an indictment for assault and battery with intent to kill, instead of alleging that the intent was " to kill," alleged that it was " to commit murder." Seld, good. — Ct. of App., Oct., 1880. Pontius v. People, 82 N. Y. 339. 2. Evidence for the people. Upon trial of such an indictment, the prosecution gave in evidence certain notes purporting to have been made or indorsed by H., the com- plainant, also a book of account; these, the witness producing them testified, came lawfully into his possession, at the prisoner's house, and in his presence. Testimony was then given by H. and others, showing that the signatures of H. to the notes were forged. Held, that the evi- dence was properly received, as showing motive, although it tended to prove the commission of another crime. lb. 3. The prosecution gave evidence of decla- rations of the prisoner, made two days before the alleged assault, while he was examining a note signed by H., tending to show an intimate acquaintance on his part with the signature of H. Held, competent. lb. 4. The account-book received in evidence contained the handwriting of the prisoner. J2e/d, that it was proper to permit the jury to examine the entries in said book, and to com- pare them with the alleged forged notes. 76. 5. The prisoner was examined at length in his own behalf, asserting the genuineness of ihe notes, and that they were made in payment of moneys loaned by him to H. Seld, 1. That it was competent to inquire on cross-examination as to the sources from whence ASSAULT— ASSIGNMENT, I., II., III. 25 the prisonei procured the money to make [the loaus. 2. That it was competent for the prosecution "to prove any facts tending to show the improb- ability of the prisoner's statement, i. e., his pe- cuniary necessities, the borrowing of money by himself, at or about the time of the alleged loans, the non-payment of small debts when due, after frequent requests, etc. lb. ASSESSMENTS. CoapoEATiONs ; Eminent Domain ; Insur- ance; MuNiciPAii CoRPOBATioNs; New Yobk ■City; Taxes. ASSIGNMENT. [Consult, also, AssiamfSNTSFOiE Benefit of Cbed- tlTOKS ; PRAirDtII.BST CONVKYAN OES J SAI/IS ; VBHDOB jLSJi PURCHASSB.] I. Wbiat m^t be Assigned, and how. II. Construction and Validity. III. Eights and Liabilities of the As- signee. I. What mat be Assigned, and how. 1. What is assignable, generally.— A cause of action against a sheriff for his fail- ure to return an execution against property within the time required by law, and for making a false return, is assignable and the assignee may bring au action thereon in his own name. — Supreme Ct., (2d Dept.,) Feb., 1881. Jackson v. Daggett, 24 Hun 204. 2. The act of congress (U. 8. Stat, of 1874, ch. 459, § 18) prohibiting liens, assignments, sales and transfers of an " Alabama Claim," for services in collecting, does not affect an agree- ment to pay for such services. — Ct. of App., April, 1880. Lawson v. Bachman, 81 N. Y. 616. 3. Oral assignment. An assignment •of an account may be made by oral agreement, •without writing, or any written statement of the claim assigned; and, if founded on a valid -consideration, vests in the assignee a' right to j)roceed in his own name for the collection of the debt. So, also, an oral assignment, for a valid consideration, of a portion of a debt is valid. — Cl. of App., Jan., 1881. Kisley v. Phe- nix Bank of New York, 83 N. Y. 318, 328. 4. Where, concurrently with the giving of a -check for a portion of the amount standing to tbe credit of the drawer upon the books of de- fendant, there was an oral agreement between the drawer and payee, by which the former, for a valuable consideration, agreed to assign so much of the indebtedness of the bank to him as was represented by the check, and the check was given to enable the payee to collect and re- ceive the portion of the debt assigned — Held, .that the check was not the contract between the parties, and so did not render oral evidence of the agreement inadmissible ; and that the parol assignment was sufficient to vest in the plaintiff a title to the portion of the debt assigned. lb. n. Construction and Validity. 5. In general. Defendant, S., assigned to plaintiff a certificate of stock in a manufactur- ing corporation " as security for the payment of any demands " plaintiff " may from time to time have or hold against" E. S. was the wife of E., who, at the time the assignment was exe- cuted, was largely indebted to the plaintiff, and was on the verge of actual insolvency. In an action to foreclose plaintiff's lien upon the stock pledged — Held, that the assignment, by its terms, included and secured all demands had and held by plaintiff against E. after Its execu- tion, as well as those existing at that time ; and that the circumstances disclosed this to have been the intent of the parties; also that the assign- ment was a continuing security; and that an extension of time, by renewals in the ordinary course of business, granted by plaintiff to E. for payment of any of the debts, did not discharge the lien upon the stock. — Ct. of App., Jan., 1881. Merchants' Nat. Bank v. Hall, 83 N. Y. 338. 6. Assignment tuider foreign law. An assignment by virtue of or under a foreign law does not operate upon a debt, or rights of action as against a person in this state. — Cl. of App., March, 1881. Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; affirming 21 Hun 166. "7. What ■win be deemed an equita- ble assignment. Where, for a valuable consideration received from the payee, an order is drawn upon a third person, payable out of a particular fund then due or to become due from him to the drawer, the delivery of the order to the payee operates as an assignment pro tanto of the fund ; the drawee is bound, after notice thereof, to apply the fund, as it accrues, to the payment of the order, and the payee may by ac- tion compel such application. — Ct. of App., Sept., 1880. Brill v. Tuttle, 81 N. Y. 454. 8. An order drawn by one upon a fund due him from the city of New York, operates as an equitable assignment of the sum therein named, and the drawee is the real party in interesi as to the city, although the contract under which the fund was eained provided that none of the moneys payable thereunder should be assigned without the assent of the commissioners of public works, which consent was not obtained ; and though after the order was presented, and before payment thereof, the drawee forbade the city to pay it. — Superior Ct., Dec., 1880. Gray V. Mayor, &c., of New York City, 46 Superior 494. HI. Bights and Liabilities of the As- signee. 9. Assignee's right to sue. The assign- ment of personal property after a cause of action for conversion thereof has accrued, gives the assignee a right of action. — Ct. of App., April, 1880. McKeage v. Hanover Eire Ins. Co., 81 N. Y. 38. As to the mode of assigning or transferring any particndar instrument, see the title of the writing in question. As to Asgignmg errors, see Appeal ; Eerob. Assignment of Dower, see Dower. 26 ASSIGNMENTS FOR BENEFIT OF CEEDITOES, I, II. ASSIGNMENTS FOR BENEFIT OF CREDITORS. I. Validity, Inteepretation and Effect. II. Eights, Powers and Liabilities of the Assignee. I. Validity, Interpretation and Effect. 1. Execution— ackno-wledgment— as- sent of assignee. An assignment of the property of a debtor, in trust for creditors, exe- cuted in tlie name of the debtor and_ duly acknowledged by an/ attorney duly constituted for that purpose, is valid under the act of 1860, (Laws of 1860, ch. 340,)and effectual to vest in the assignee the title to the assigned property. —Cl. ofApp., Nov., 1880. Lowenstein v. Flau- raud, 82 N. Y. 494. 2. Since the passage of Laws of 1877, ch. 466, a general assignment for the benefit of creditors must, in order to vest the property in the assignee, be in a writing duly acknowledged by the assignor, must have thereon the assent of the assignee, duly subscribed and acknowl- edged by him, and must have been duly re- corded.— Supreme Ct., (3d Dept.,) Jan., 1881. Rennie s.Bean, 24 Hun 123. 3. An assignment recorded without the assent of the assignee to act, having been duly sub- scribed and acknowledged by him thereon, although he may have orally agreed to act, is void as against creditors claiming under attach- ments against the property of the assignor lb. 4. Validity of preferential assign- ment. A preferential assignment cannot be treated as a fraudulent disposition of the debtor's property, merely because, shortly before its. execution, he purchased goods upon a credit which had not expired at the time of the assignment, for which goods he had no reasonable hope of being able to pay. — Supreme Gt., (1st Dept.,) Nov., 1880. Talcott v. Eosen- thal, 22 Hun 573. 5. Intent to hinder creditors. Where it appears either upon the face of an assign- ment, 'or by proof aliunde, that it was made with intent to hinder or delay creditors, it affords no protection to the assignee against a sheriff who seeks to enforce, by execution, a judgment against the assignor. — Cl. of App., March, 1881. McConnell v. Sherwood, 84 N. Y. 522; 61 How. Pr. 67 ; affirming 19 Hun 519. 6. The insertion in an assignment of the partnership effects of an insolvent firm, of a provision directing the payment of individual debts out of partnership property, is such evi- dence of fraudulent intent as to avoid the assignment. — Com. Pleas, (Oen. T.,) May, 1881. Schile V. Healj;, 61 How. Pr. 73. 7. Provision as to compromising debts. The assignment, after describing the property assigned, declared the conveyance to be in trust : First, to sell and dispose of the assignor's personal property and estate, and "collect the notes, accounts and choses in action," taking a part of the whole when the assignee " shall deem it expedient to do so ;" iecond, to distribute and pay of the proceeds to all the creditors of the assignor for all debis and liabilities which he may be owing, or, if insufficient for that purpose, " in proportion to- their respective demands." It further declared that the assignee " may have the right to com- promise with " those creditors if, in his opinion, "it would be advantageous" to them and to the assignor. Held, 1. That the first provision does not taint the assignment. 2. That to the clause permitting the assignee- to compromise with the creditors must be ap- plied the rule which regards every assignment operating to delay creditors, for any reason not distinctly calculated to promote their interests, as contrary to the statute of frauds, and there- fore void. 3. That the assignment was void upon its face. McConnell v. Sherwood, supra. 8. An assignment for the benefit of creditors contained a clause empowering the assignee to collect the "choses in action with the right to compound for the said choses in action, taking a part for the whole, when he shall deem it ex- pedient." In an action by the assignee to re- cover assigned property levied upon by defend- ant, as sheriff, by virtue of executions against the assignor. Held, 1. That the clause was to be construed as simply authorizing the assignee to compromise- such claims as in a sound discretion the interests of the trust required ; that as so construed, the clause was not in conflict with the provision of the act of 1877, in relation to such assignments, (Laws of 1877, S 23, ch. 466,) which permits the County Court to authorize an assignee to compro- mise any claim or debt belonging to the estate ;. and that it did not invalidate the assignment. 2. That evidence of the declarations of the- assignor, made after the assignment, acceptance and delivery of possession under it, were prop- erly excluded. — OS. of App.^ March, 1881. Covne V. Weaver, 84 N. Y. 386. II. Eights, Powers and Liabilities of the . Assignee. 9. The bond. A conveyance of property made by a general assignee for the benefit of creditors, before he has filed the bond required' by Laws of 1860, ch. 348, ? 3, is a nullity, and may be questioned and set aside, not only by the creditors of the assignor, but by the suc- cessors of the assignee. — Supreme Ct., (3d Dept..,) Sept., 1880. "Woodworth v. Seymour, 22 Hun 245. 10. What -will pass by the assign- ment. Section 1 of the act of congress of 1853 (10 U. S. Stat, at L. 170,) prohibiting the- transfer or assignment of any claim against the United States, or any share thereof or interest therein, whether absolute or conditional, before- the allowance of such claim, or the ascertain- ment of its amount and the issuing of a warrant for its payment, and declaring every assignment in contravention of such restraint absolutely null and void, does not prevent the assignment to an assignee for the benefit of creditors, under the laws of New York, of a claim made by the assignors against the United States to recover income taxes paid under protest, which claim., is, after the making of the assignment, decided upon and allowed in favor of the assignors. — Supreme Cl., (ls« Dept.,) March,1881: Stanford V. Lockwood, 24 Hun 291. 11. Notwithstanding a levy under an exeou- tier upon his personal property, the judgment ASSIGNMENTS, II.— ASSOCIATIONS. 27 debtor remains owner, and can convey title, svrbject to the lien created by the execution. An assignee for the benefit of creditors of the debtor, acquires a title subject to such lien, good against all persons until the assignment is im- peached for fraud. — Cl. of App., Nov., 1879i Mumper v Rushmore, 79 N. Y. 19 ; afirmmg 14 Hun 591. 12. Where the property is in Ae possession of the sheriff at the time of the assignment, the transaction is not within the provision of the statute of frauds (2 Rev. Stat. 136, § 5,) which requires an immediate delivery of goods sold ; that applies only to a sale of goods in the ven- dor's possession or under his control. lb. 13. Powers as respects management of estate, generally. Under an assign- ment for the benefit of creditors the assignee is merely the representative of the debtor, and must be governed by the express terms of his trust. — Gt. of App., June, 1880. Matter of Lewis, 81 N. Y. 421. 14. Payment of debts, taxes, &o. L. executed his bond and mortgage to secure an indebtedness ; the mortgage contained a pro- vision that upon failure to pay interest and taxes accruing the whole mortgage debt should, at the option of the mortgagees, become due. Such default having occurred, the mortgagees commenced foreclosure and a receiver was ap- pointed, who took possession of ine mortgaged premises. Prior to the commencement of the foreclosure suit, L. executed an assignment for the benefit of creditors ; the assignment con- tained no provision giving preference, or in relation to taxes, save as they were included in the general and unpreferred debts. The mort- gagees, upon petition setting forth these facts, and alleging that L. had failed to pay the taxes, and that the lands were insufficient security, moved for an order requiring the assignee to pay the taxes in arrear. Hdd, 1. That the application was properly denied ; that the authority of the assignee and the control of the court over him was limited by the terms of the assignment, and he could only be compelled to perform the trust therein defined ; that, therefore, the court had no power to direct Him to pay a debt of the assignor or to give it a preference in violation of the assign- ment. 2. That the assignee could not be compelled to pay the taxes which accrued after tThe assign- ment, lb. The distinction between such a case and that of the distribution of a decedent's or bank- rupt's estate pointed out. lb. 15. Sales by assignee. A County Court has no power to set aside, on motion, a sale made by an assignee for the benefit of creditors, on the ground that the price paid was insuffi- cient, and that a better one can be obtained. — Supreme Cl., {3d Dept.,) Nov., 1880. Matter of Eider, 23 Hun 91. 16^ Power to compel him to accotmt. When, after a debtor has made a general as- signment for the benefit of his creditors, he is declared a bankrupt in involuntary proceedings instituted against him in a United States District Court, the mere fact that a composition with his creditors is thereafter made, as provided in the bankrupt act, does not relieve the assignee acting under the general assignment, from ac- counting to the creditors for the property received by him, unless the creditors have in some way relinquished their right to such an accounting, or the District Court has ordered the assignee to return the properly to the bank- rupt. — Supreme Gt., {4th Dept.,) April, 1881. Matter of Allen, 24 Hun 408. And see Matter of Strauss, 61 How. Pr. 243. 17. Where an assignee for benefit of creditors has received assets, it is no defence to an action for an accounting, brought against him by the creditors, to allege that, since the execution of said assignment, the assignor has been dis- charged in bankruptcy from the debts thereby secured, under proceedings instituted after the assignment. The beneficiaries under the trust created by the assignment, i. e., the creditors, have a vested interest in the assigned property, and its proceeds, to the extent of their respec- tive claims. — Superior Ot., June, 1880. Smith v. Tighe, 46 Superior 270. 18. Charges against him on account- ing. That, upon the accounting of an assignee, the County Court may charge him with any loss occasioned by his wrong-doing in making a sale at an inadequate price, see Matter of Kider, 23 Hun 91. 19. Proof of claims. Distribution. Where partners make an assignment of their individual and copartnership estate, and the in- dividual estate of one of them is more than sufficient to pay his individual debts, the indi- vidual creditor has tlie right to claim his debt, and the damages, by way of interest, which he has sustained by reason of non-payment at maturity, up to the time of the distribution. — Com. Pleas, {Gen. T.,) May, 1881. Matter of Shipman, 61 How. Pr. 515. 20. Compensation of assignee. Upon a composition under the general assignment act, (Laws of 1877, ch. 466 p. 543,) the creditors agreed to take the notes of the assignors for a percentage of their respective claims, and, after payment of the expenses, all the property as- signed, or the proceeds of it, was restored to the assignors. Sdd, that the five per cent, com- mission upon the value of the estate allowed by law to the assignee should be estimated upon the aggregate amount of the composition, with the expenses incurred and paid out by the assignee added. — Gom. Pleas, (Sp. T.,) May, 1881. Matter of Hulbert, 61 How. Pr. 98 : S. C, 9 Abb. N. Cas. 132. 21. — of assignee's attorney. In allow- ing compensation to the attorney of the assignee the court will not go beyond the $2000 allowed in the cases provided by sections 3252 and 3253 of the Code of Civil Procedure, unless the nature of the attorney's services is specifically detailed, in order that their value may clearly appear. lb. As to assignments directed by the court in proceedings under the Insolvent laws, see Insol- VBNCT. As to the effect of the late Sanhrvpt law upon assignments for creditors, see Bankruptcy. ASSOCIATIONS. Societies akd Associations. 28 ATTACHMENT, I., 11. ASSUMPSIT. 'CoNTBACTS; Mistake; Money Ebceited; Sales; Seevicbs. ATTACHMENT. I. When an Attachment will Lie. II. Obtaining and Serving the Wabrant, AND ITS Effect. III. Motion to Vacate, ob Dissolve. IV. Eemedies for Wbongful Attachment. I. When an Attachment will Lib. 1. What property is subject to at- tachment. Judgtaent debts and moneys collected on execution by and in the hands of a sherifl, are liable to attachment under process issued in an action against the judgment credi- tor.— O. ofApp., Dec., 1880. Wehle v. Conner, • «3 N. Y. 231. 2. The right so to attach is not aflfected by the fact that the judgment debtor is also the ^attaching creditor. lb. 3. PlaintifEoffered to prove that there was a ■conspiracy between the attachment creditors, the judgment debtors and the sheriff, to issue the attachment " for the purpose of preventing the collection of plaintiffs judgment." Seld, that the offer was properly excluded ; that the fact that there was a conspiracy to do what the law authorizes did not affect the legality of the •act. lb. I 4. It was claimed that as two of the judg- ments were for costs they were not affected by the attachments, because of the' precedence of the attorney's lien. Held, that until the lien was asserted by the attorney, who alone was en- titled to and could claim it, the judgments were the property of the plaintiff; and that they were to be so considered here,- as there was no offer to prove that the attorney had given notice of his claim or had attempted to enforce it. lb. 5. It was claimed that plaintiff was entitled to a judgment for the surplus of her judgments •over the amounts claimed in the attachments. Seld, untenable ; that as the sheriff was re- quired to keep so much of the property as would satisfy the attachment demands, with costs and expenses, (Code of Pro., § 232 ; Code of Civ. Pro., ? 641,) he had a right to exercise a reason- able discretion as to the amount so to be re- tained, lb. 6. "What is not. Wages due to a debtor for services rendered within a period not ex- ceeding the sixty days prior to the levy of an attachment, which are necessary for the support of his family, are not the subject of levy under tiucli attachment. — Sv/preme Ct., (2d Dept.,) Feb., 1881. McCuUough v. Carragan, 24 Hun 157. 7. Choses in action in the hands of an as- signee for the benefit of creditors cannot be levied upon under an attachment issued in an action brought against the assignor by one of his creditors, even though the assignment ■was made to defraud the assignor's creditors. — Sumreme Ct., {1st Dept.,) March, 1881. Smith V. Longmire, 24 Hun 257. 8. Attachments against national banks. In an action against a national bank organized in another state, an attachment may be issued against the property of the defendant in this state.— 0«. of App., June, 1880. Robin- son V. Nat. Bank of Newberne, 81 N. Y. 385, 392. 9. The provision of the national banking act (U. S. Eev. Stat., § 5242,) prohibiting the issuing of an attachment, injunction or execu- tion against such an Hssociation or its property before final judgment, applies only to an asso- ciation which has become insolvent or to one about to become so, as specified in the preceding part of the section. lb. 10. Fraudulent assignment. Where the parly made an assignment in October, the goods being bought in August, and there being preferences to creditors whom he owed, the court cannot assume from that fact in favor of an ai;tachment, that there was a fraudulent dis- position of his property. — Com. Pleas {Oen. T.,) Jan., 1881. Achelis v. Kalman, 60 How. Pr. 491. Ill Obtaining and Serving the Warrant, AND ITS Eitect. 11. Porm"&,nd sufficiency of the affi- davit. It matters not what a person believes or disbelieves, the applicant for an attachment under subdivision 2 of section 636 of the Code, of Civil Procedure, must show by proof of facts known to the witnesses who testify to them, that the belief in the intent to defraud by a disposition of the property is well founded. In other words, the intent so to defraud must be a fair and logical sequence from facts proved. — _Swpreime CU., ( Uhler Sp. T.,) Sept., 1880. Elli- •son V. Bernstein, 60 How. Pr. 145. 12. It is not enough that a witness is willing to testify to a fact positively; he will not be allowed so to testify, when it is plain that he can have no actual knowledge on the subject. The sources of information must be given, so that the tribunal called upon to act can see that the facts sought to be proved are established by legitimate testimony. lb. 13. The facts (even if true) that the defend- ant was insolvent when he made the purchases, that he bought more goods than he needed, and that he failed to disclose his insolvency, in the absence of an false statements, are not suffi- cient to show an intent to defraud. lb. 14. Nor is it any evidence of such intent, that defendant refused to secure plaintiffs; so long as the law allows preferences to creditors by a failing debtor, it cannot be proof of intent to defraud, that defendant intends to do what the law permits. lb. • 15. The failure to state, in an affidavit, for an attachment, that plaintiff is entitled to recover the sum specified therein, over and above all counter-claims known to him, as required by Code of Civ. Pro., § 636, renders the attachment void ab initio.— Supreme Ct., {1st Dept.,) May, 1880. Donnell v. Williams, 21 Hun 216. S. P. Trow's Printing, &o., Co. d. Hart, 60 How. Pr. 16. The failure to allege, in the affidavit for an attachment, in the language of section 3169, subdivision 5, that defendant is an adult,, is not ATTACHMENT, II., III. 2» material. The law will presume that he is an jiAalt.— Marine Ct., Sept., 1880. Wentzler v. Eos9, 59 How. Pr. 397. 17. Defendants had in store for plaintifi a quantity of coffee, to be held for it, but with liberty to sell, and to pay to plaintiff out of the proceeds, the amount due to it upon bills of ex- change which it had discounted on the security of the property. The defendants sold the coffee, using the proceeds, which were more than suffi- cient to pay the drafts, in their business, thus appropriating them to their own use. On mo- tion to vacate an attachment granted on affi- davits showing these facts — Held, that the at- tachment could not be sustained, because it had not been shown that the defendants either as- signed, disposed of, or secreted, or were about to assign, dispose of, or secrete their property, with the intent to defraud their creditors. — Supreme a., {1st Bept. Sp. T.,) Dec., 1880. Ger- man Bank of London v. Dash, 60 How. Pr. 124. 18. The provision as to attachments differs in this respect from that providing for the mak- ing of an order of arrest; so that a debtor is liable to arrest, but not to seizu^-e of his prop- erty by attachment, when he may have disposed of plaintiff's property or that of any other per- son with intent to defraud its owner. Ih. 19. Second attachinent. A plaintiff after having obtained one attachment and order of publication, may abandon them and take out a new attachment and order, provided this is not done for the purpose of vexation. — Gt. of App., Apnl, 1880. Mojarrietta v. Saenz, 80 N. Y. 547, 20. It does not affect the jurisdiction of the court in granting the second attachment, that the same affidavit was used which was used in obtaining the first. lb. 21. It seems that it is proper thus to use the affidavit a second time, but if not it is a mere matter of practice, a departure from which by the coui't does not deprive it of jurisdiction. 26. 22. Upon "wliora service may be made. An attorney for the successful party in an action by whom a judgment was procured is not an " individual holding such property " within the meaning of the provision of the Code of Procedure, § 235, authorizing the execution of an attachment by service of a copy. There- fore — Held, where a judgment in favor of an attachment debtor was attempted to be attached by service of a copy of the warrant upon one of the attorneys for said debtor, in the action wherein said judgment was rendered, that the attachment was not properly executed; and that a purchaser at sheriff's sale under execu- tion and order of the court in the attachment suit acquired no title.— Of. of App., Feb., 1881. Matter of Flandrow, 84 N. Y. 1 ; affirming 20 Hun 36. 23. It seems, also, that the omission upon the second applicaition to comply with the rule 25, requiring that the affidavit upon an ex parte ap- plication shall state whether a previous applica- tion has been made, does not affect the juris- diction ; it is a mere irregularity, and if not re- garded by the court below will not be regarded here. lb. 24. The levy; and its effect. The complaint alleged that plaintiff and defendant W. were copartners, and that the firm had be- come insolvent ; that the other defendants had, by collusion with defendant W., commenced actions against the firm in the Marine Court of the city of New York, in which attachments. had been issued, under which property of the firm had been seized; that such attachments were void, for the reason that the firm had a place of business in the city of New York, though both of the members thereof resided in Kings county. The relief sought was the dis- solution of the firm, the appointing of a receiver the vacating of the attachment, and also that the said defendants might be restrained from further prosecuting their actions in the Marinfr Court. Held, that as to the attaching creditor, the conjplaint did not state facts sufficient to- constitute a cause of action, and that it should be dismissed. — Supreme Ot., {2d Dept.,) Sept.,. 1880. Fielding i;. Lucas, 22 Hun 22; S. C, 60 How. Pr. 134. 25. WTien formal levy is unneces- sary. Where property of an attachment debtor is already in the hands of the sheriff to whom the attachment is issued, no formal levy or notice is necessary to subject it to the lien of . the attachment.— Ci. of App., Dec., 1880. Wehle- V. Conner, 83 N. Y. 231. 2Q. Undertaking to discharge at- tachment — liability of sureties. In an action upon an undertaking given to secure the- release of property belonging to a firm, from an attachment issued in an action commenced against two of the partners, the surety cannot set up as a defence that the summons and com- plaint in the original action were, after the giv- ing of the undertaking and before the entry of the judgment, amended, by consent, by the ad- dition of the name of a third partner. — Supreme Ct , {2d Dept.,) Feb., 1881. Christal v. Kelly, 24 Hun 155. 27. In an action upon an undertaking, given, to discharge an attachment, conditioned to pay any judgment recovered by the attachment creditor, it appeared that the attachment debtor, within four months after the issuing of the at- tachment, filed liis petition and was thereupon adjudicated a bankrupt and made an assign- ment ; he then applied to the bankruptcy court to stay proceedings in the action in which the attachment was issued ; this was denied, and judgment was recovered. Held, that the pro- ceeding in bankruptcy was no defence, as there was at the time no attachment lien or attach- ment in force upon which the proceeding could operate; and that neither the letter nor the policy of the bankrupt act was infringed by holding the defendants liable. — Ct. of App , Sept., 1830. McCombs v. Allen, 82 N. Y. 114;. affirming 18 Hun 190. III. Motion to Vacate, or Dissolve. 28. Who may move. The right of third persons to move, under section 682 of the Code of Civil Procedure, to vacate a warrant of at- tachment, is not confined to those who have ac- quired liens or interests by proceedings in in- vitum ; and a person who has acquired an inter- est by voluntary transfer, will be permitted to stand in the defendant's place in respect of the right to question the validity of the attachment. —Ot. of App., June, 1881. Trow's Printing, &c., Co. 1). Hart, 1 Civ. Pro. 240 ; affirming 6» How. Pr. 190. 30 ATTACHMENT, III., IV.— ATTEMPTS. Such motion may be made by a person •who has acquired an interest in part only of the attached property; in which case, the relief will be limited to vacating the attachment as to ^uch part, and the plaintiff cannot complain that the attachment has not been set aside in ■Mo. lb. 29. Right to move a second time. The rule prohibiting the splitting up a single •demand and bringing separate actions at law, has no application to proceedings to vacate an attachment. — Ct. of App., Dec, 1880. Steuben •Coi Bank v. Alberger, 83 N. Y. 274. 30. The facts, therefore, that a party has made a prior motion to vacate an attachment upon the ground that it is an obstruction to the •enforcement of a judgment and execution, and was defeated thereon, does not preclude a second motion to vacate the attachment as far as it affects real estate, on the ground that it is a cloud upon an alleged title thereto of the mov- ing party ; and this although the party might have proceeded on the first motion upon this ground also. Ih. 31. Counter afildavits. Where the moving affidavit did not contradict any fact stated in the papers on which the attachment was granted, and did not bear upon the merits, but was confined to showing the right of the "third person to move, and excusing his delay — Held, that the plaintiff was not entitled to read affidavits in support of the attachment other than those on which it was issued. — Ct. of App., June, 1881. TroVs Printing, &c., Co. v. Hart, 1 Civ. Pro. 2.40; affirming 60 How. Pr. 190. 32. Vacating under "thirty -day clause" (? 638.) Where, in an action brought against a firm consisting of two members, an attachment is issued, and thereafter one of the partners is personally served with the sum- mons, but the other is not, nor are proceedings to serve him therewith by publication com- menced within the thirty days required by the statute, the attachment ceases to be a lien upon the firm property. — Supreme Ct., {\st JDept,,) May, 1880. Donnell v. Williams, 21 Hun 216. 33. A request on the part, of a defendant, against whom an attachment has been issued, to suspend legal proceedings, does not excuse a failure to serve the summons or to commence publication within the time prescribed by Code of Civ. Pro., i 638, and does not operate as an estoppel precluding the defendant from setting up want of publication or service. — Ct. of App., April, 1880. Mojarrieta v. Saenz, 80 N. Y. 547. 34. As to whether the lapse of the thirty days prescribed ousts the court of jurisdiction and abates the action, or merely avoids the at- tachment, qucere. lb. Compare Blossom v. Estes, 84 N. Y. 614; affirming 22 Hun 472. 35. An attachment was issued May 13th, 1879, an order for service of summons by publication was obtained, but publication was not com- menced within the thirty days prescribed ; within that time one of the defendants, whose goods had been levied on, telegraphed and wrote to plaintiffi to suspend proceedings. On June 12th, 1879, asecoud attachment was granted, plaintiff using for that purpose the same sum- mons and complaint and the same affidavit upon which the first warrant was granted, but giving a new undertaking ; a new order of publication also was obtained, and publication was com- menced within thirty days after the second at- tachment was granted. The first warrant was before the judge when he granted the second. Motion was made to vacate the attachments; the notice did not specify a failure to comply with said rule as an objection to the second at- tachment. Held, that the first attachment was properly vacated, but that the second attach- ment was properly granted ; that plaintiffs had thirty days thereafter within which to com- mence publication of summons ; and as the publication was commenced within that time, the motion as to the second attachment should have been denied. lb. 36. When the motion ■will be denied. The plaintiflG), in an action against two co- partners, obtained a warrant of attachment against the property of one of them only, and another firm of subsequent attaching creditors,- in another action against the same defendants, applied for and obtained a Special Term order vacating such first-mentioned attachment, be- cause it appeared, on the argument of the motion to vacate, that the warrant was issued against the property of one defendant only, on the ground that he had absconded, and that the firm against whom the action was brought was in- solvent and unable to pay its debts in full, Hetd, the attachment should not have been dis- charged merely because no lien on the firm property had been thereby acquired, but plaintiffs should have been allowed to retain their attachment for whatever it was worth. — Supreme Ct., (1st Dept.,) May, 1881. Bucking- ham V. Sweezey, 61 How. Pr. 266. 37. Where the plaintiff, on a warrant of at- tachment, levied upon certain shares of stock in a manufacturing corporation belonging to the defendant, and received the certificate of de- fendant's interest required to be given by Code of Civ. Pro., § 650, and subsequently entered up judgment against the defendant, and obtained an order under section 651 to examine the manager of said corporation in relation to such certificate of interest — Held, denying a motion to vacate the order, that the attachment was not superseded by judgment ; and that by the omission of the word " execution " from section 650, it was not intended to make a radical change in regard to such examinations. — Su- preme Ct., {1st Dept. Sp. T.,) June, 1881. Smoot V. Heim, 1 Civ. Pro. 208. IV. Remedies tor WEONQFtrL Attachment. 38. When malice must be sho'WTi. Where an attachment regularly granted upon competent evidence is vacated upon appeal, for error alone, and not upon the ground of irregu- larity or want of jurisdiction, in the absence of proof of malice upon the part of the party obtaining the process, action will not lie against him for conversion of goods taken thereunder. —Superior Ct., Dee., 1880. Day v. Bach, 46 Superior 460. ATTEMPTS. To commit crime, generally, see CbiuinAI. La-w ; and the titles of the graver offences. ATTORNEY AND CLIENT, I., II. 31 AHESTATION. Deeds ; MoBTaAGss ; Wills. AHORNEY AND CLIENT. I. The Vocation. II. The Eelation TnTH the Client. III. COMEBNSATION OF AtTOENEYS. IV. Privileged Communications. I. The Vocation. 1. Liability for fees and costs. De- fendants, acting as the attorneys for one H. and others, recovered a judgment in an action brought against a railroad company, and issued an execution thereon to the plaintiff (the sheriff,) ■Under which he levied upon certain personal property of the railroad, sufficient iu amount, with the real estate owned by it, to satisfy the execution. Thereafter, and before the property had been sold, the sheriff received a letter from the plaintiffs iu the execution, stating that the ■difficulty between the railroad and their firm had been satisfactorily settled, and that "the judgment and all of our claims against them have been paid and satisfied in full ; so, of ■course, you will proceed no farther in the sale of the railroad company as advertised." In , fact the judgment had not been paid, but had been a'^signed to one C, who agreed to pay the sheriff's fees. C. having failed to pay the fees, 4he sheriff brought this action against the de- fendants, to recover them. Seld, that he was entitled to recover. — Supreme Cl., (3d Dept.,) Nov., 1880. Van Kirk v. Sedgwick, 23 Hun 37. 2. — for stenographer's fees. In the sabsence of a special agreement imposing a per- sonal liability, an attorney for one of the parties to an action cannot be held personally responsi- ble for the services of a stenographer therein. — Ol. ofApp., June, 1880. Bonynge v. Field, 81 N. Y. 159 ; affirming 44 Superior 581. 3. Disbarring attorneys. In proceed- ings to disbar an attorney, he can only be con- victed on evidence good at common law, deliv- ered, if he chooses, in his presence, by witnesses subject to cross-examination. Therefore — Held, that the granting of an order in such proceed- ings, against the objection of the attorney, di- recting that a commission issue to examine a "witness without the state, was error ; and that the order was not validated by the insertion in it of a provision reserving " until the final hear- ing of the matter " the question as to the " right to issue the commission, and the legality of the evidence taken thereunder." — Ot. of App., Dec., 1880. Matter of an Attorney, 83 N. Y. 164. 4. Punishing them for contempt. "Where, upon the return of an order requiring an attorney to show cause why he should not be punished, as for a contempt, because of his fail- ure to pay over to his client moneys collected for him, a reference is ordered, the court may, upon the coming in of the report, appoint a day for the hearing thereon, and direct that an at- liachment issue against the attorney, returnable upon the day of the hearing, for the purpose of securing his presence thereon. The court may direct the hearing to be had within a shorter period than that prescribed bv General Eule No. SO.— Superior Cl., (lit Dept.,) March, 1881. Matter of Steinert, 24 Hun. 246. 5. The fact that the attorney has evaded the service of the attachment and other papers, and neglected to appear on the return-day, will not authorize the court to refuse to entertain a mo- tion made by his counsel to s^t aside the order directing the attachment to issue, on the ground of alleged irregularities in the proceedings. lb. 6. — for professional misconduct. The distinction between the case of the punish- ment of an attorney for misconduct not com- mitted in the presence of the court, and pro- ceedings for a contempt occurring in the presence of the court, and where the facts are certified by the court, pointed out.-:— (X. o/ .djjp., iSept., 1880. Matter of Eldridge, 82 N. Y. 161. 7. Where the alleged misconduct is denied, the affidavits and papers upon which the pro- ceedings were instituted are not evidence upon the issues, but simply perform the office of pleadings or statements of the charges relied upon. Affidavits are sufficient to originate the proceedings, but upon the trial of the issues the common law rules of evidence must be ob- served, lb. 8. In proceedings for the probate of a will, E., an attorney who appeared as proctor for a contestant, introduced in evidence the deposition of a witness taken on commission ; the answers Were very full and minute in details, tending to show undue influence ; in proceedings to pun- ish E. for alleged professional misconduct in procuring such testimony, it appeared that he prepared and caused to be written out all the answers to be given by the witness to the inter- rogatories and cross-interrogatories; that he was present when the testimony was taken, and himself read to the commissioner the answers he had prepared to the interrogatories, and left with the witness the answers so pre- pared to the cross-interrogatories which the latter read to the commissioner ; that E. paid money to the witness both before and after the taking of the testimony, and he afterward wrote to the witness suggesting a destruction of their correspondence and asking for a return of the memoranda so used at the taking of the deposition. Held, that practically the exami- nation was merely an affidavit drawn by ,E., and in its true character not admissible before the surrogate ; that the procuring its reception by disguising it in the form of a deposition was a fraud upon the surrogate ; and that, therefore, without regard to the truth or falsity of the answers so given, E. was properly convicted of professional misconduct. lb. II. The EElation with the Client. 9. The attorney's authority, gener- ally. An attorney's authority extends not only to the perfecting and enforcement of a judgment, but also to its defence against all at- tempts to interfere with it. He should therefore be served with notice when it is sought to set aside a judgment or other proceeding in which he has participated. — N. T. Sun: Ot., Nov., 1878. Matter of McCunn, 4 Eedf. 15. 10. As to the power of the court to compel an attorney to deal justly with his client, an^ 32 ATTORNEY AND CLIENT, II., III. to appoint a referee to take proof of the facts, see Matter of Kuhne v. Daily, 23 Hun 282. 11. Power to bind his client. Defend- ants obtained judgment against W. and issued execution thereon to plaintiff as marshal, who levied upon personal property to about double the amount of the execution. This property was claimed by D, & H. Defendants gave a bond of indemnity, a printed form being used ; it contained a written recital of the levy and the claim of D. & H., and a printed condition to save plaintiff harmless from levying and selling under his execution "any personal property which he or they shall or may judge to belong to the judgment debtor." A portion of the property levied on, which was not in fact the property of W., was taken from plaintiff's possession by some person unknown ; upon his reporting the eloignment to the defendants they notified him that they should hold him respon- sible for the levy. Plaintiff thereafter, without the authority, knowledge or consent of defend- ants, levied upon and sold other property, the proceeds of which he paid to defendants, who received it without any knowledge of siich new levy. An action was brought by S. against plaintiff for such levy and sale, and judgment recovered against him. In an action upbn the bond — Seld, TT. That it was intended simply to fur- nish indenmity for the levies already made ; that its terms did not enlarge plaintiff's au-, thority, and the subsequent unlawful levy and sale was made entirely at his risk, and that de- fendants were not liable. 2. That the receipt by the defendants of the proceeds of the .sale in ignorance of the facts was not a ratificatioh ; and that they were not affected by knowledge upon the part of their at- torney, as he had no authority to bind them by directing a trespass or by ratifying one when committed. — Ct. ofApp., Jan., 1881. Clark o. Woodruff, 83 N. Y. 518; affirming 18 Hun 417. la. Substitution of attorneys. While the attorney has a lien upon the papers in the suit, which cannot be divested without pay- ment, he has none upon the client, and cannot prevent him from employing another attorney to represent him. — Marine Gt., {Sp. T.,) Feb., 1881. Prentiss v. Livingston, 60 How. Pr. 380. 13. But if the client desires the papers in the possession of his attorney, he must first dis- charge his lien. If this relief is not insisted upon, the order for substitution must provide that the taxable costs in the action to the pres- ent time (if collected upon a favorable termi- nation of the action) be paid to the present attorney of the defendants, to whom they equitably belong. lb. III. Compensation op Attorneys. 14. The lien and how enforced. The amendment of 1879, to Code of Civ. Pro., g 66, gives to the attorney of record, from the com- mencement of an action or the service of an answer containing a counter-claim, a lien upon his client's cause of action or counter-claim, which attaches to a verdict, report, decision or judgment in his client's favor, and the proceeds thereof, in whosoever hands they may come, and cannot be affected by any settlement be- tween the parties before or after the judgments —Saperior a., {Sp. T.,) Jvly, 1880. McOabe- V. Fogg, 60 How. Pr. 488. 15. But no new remedy is provided for the- enforcement of the lien, and, in order to make it available in the case of a settlement before- judgment, the attorney, while he need no longer prove fraud or collusion, must still go on with the litigation until judgment, which is to her perfected for costs'only. lb. 16. While the defendants were, as attorneys- for one L., prosecuting an action brought by him upon a promissory note, L. assigned his in- terest therein to the plaintiff's testator. The- only consideration fbr the assignment, which was drawn by one of the defendants, was a pre- existing debt due from L. to the assignee. Held, that the defendants had a lien upon the- proceeds of the judgment recovered in the action, not only for their services rendered therein, but also for their general account for professional services rendered to the assignor,, and that the rights of the assignee were subject thereto.— Supreme Ct., {ith Dept.,) Aprfl, 1880.. Schwartz v. Schwartz, 21 Hun 33. 17. Special agreements for compen- sation. As to when an agreement that an. attorney shall be compensated out of the •fund recovered creates an equitable lien, and the pri- ority of such lien over that of an attachment issued under a judgment recovered against the? client, see Williams v. Ingersoll, 23 Hun 284. 18. Effect of settlements between, the parties. Where a defendant in an action has in good faith settled the same with the plaintiff without knowledge or notice of any lien of the plaintiff's attorney for costs, and has been fully released and discharged from the cause of action and the costs thereof, the plaintiff's attornej' cannot continue the actioa. for the purpose of enforcing his alleged lien,, without having first obtained an order of the court allowing him so to do. — Supreme Ct., {2d. Dept.,) Feb., 1881. Goddard v. Trenbath, 24 Hun 182. 19. August 30th, 1878, the plaintiffs herein recovered a judgment against one Smith, upon which an execution was issued on September 2d, 1878. On August 16th, 1879, the' sheriff having failed to return the execution, the plaintifls. brought this action against him to recover dam- ages because of his failure so to do. Thereafter,, and on August 28th, 1879, for the purpose of de- feating the lien of the plaintiff's attorney for his costs, included in the said judgment, and also his costs in this action, the plaintiffs settled- with Smith and the sheriff, and the execution was returned by the latter satisfied. Sdd, that, the plaintiffs' attorney was entitled to continue this action, and to recover a judgment for the costs of the former action, and also for the costs of this one. — Supreme Ct., (3d Dept.,) Jan., 1881. Wilber i>. Baker, 24 Hun 24. 20. And when set aside. A settlement of an action, in fraud of an attorney's rights,. can only be vacated on his application made in. his own name, not by an application in the name of one of tJie parties ; as to them jt is con- clu8ive.~/SMpreme &., {ith Dept.,) Oct., 1880. Murray v. Jibson, 22 Hun 386. 21. When an attorney must have given notice of the assignment of a part of the recovery to- him in order to justify his moving to set aside= ATTORNEY AND CLIENT, III., IV.— AUCTION. 33 a settlement entered into between the parties, see Jenkins v. Adams, 22 Hun 600. 22. "WTiat maybe an offset to the lien. That under Ctode of Civ. Pro., ? 66, as amended in 1879, the attorney for a defendant, in whose .favor a judgment for costs has been entered upon the dismissal of the complaint, acquires a lien thereon for his compensation, which is superior to the right ^ of the plaintiflf to set off a prior judgment in his favor, whether he seek to enforce such right upon a motion or by an action, see Ennis ii. Curry, 22 Hun 584 ; a C, 61 How. Pr. 1. 23. As to how far the right of lien of an at- torney for costs will stand in the way of a set- off of a judgment, sought in an equitable action, see Davidson v. Alfaro, 80 N. Y. 660. 24. Action for services— time to sue. The statute of limitations does not begin to run against an attorney's claim for services, until the termination of the action, and is not affected by an intermediate assignment of the cause of action. — Supreme Ct., (3d Dept.,) Nov., 1880. Gustine v. Stoddard, 23 Hun 99. rv. Pbivileged Communications. 25. "What communications are privi- leged. Every communication which a client makes to his legal advis6r, for the purpose of professional aid or advice, is protected. — Ot. of App., March, 1880. Bacon v. Frisbie, 80 N. Y. 394. 26. Although an attorney, when called as a witness as to communications made to him, dis- claims that he was acting in a professional capacity, that is a matter for the court to deter- mine from the facts appearing. lb. 27. It is not essential to bring the case within the statutory prohibition that a fee was paid at the time of the communication, or that a suit was pending or contemplated ; if the communi- cation was in the course of any professional em- ployment, related to the subject matter thereof, and may be supposed to have been drawn out in consequence of the relation of the parties to each other, it is entitled to protection as a privi- l^ed communication. lb. 28. The rule of exclusion applies to every ' attempt to give the communication in evidence without the assent of the person making it ; and 60, includes a case where the evidence is sought to be given without such consent, against a third person. lb. 29. It seems that when such a communication is sought to be proved in an action to which the person making it is not a party, an objection thereto, by the party against whom it is offered, will lie, on the ground of public policy. Jb. Compare Boot v. Wright, 84 N. Y. 72, reverging 21 Hun 344. AUCTION. 1. Liabilities of an auctioneer. Where the mortgagor in a chattel mortgage causes the gofds to be sold at auction before the mortgage becomes due, in parcels, to various purchasers, and delivers them, not subject to the mortgage, but in hostility to it, the auctioneer who makes the sale is liable in damages to the mortgagee ; and the plaintiff, in an action for such damages, need not show that the mortgagor was wholly irresponsible. — Brooklyn Oity Ct., [Oen. T.,) Dee., 1880. Moloughney v. Hegeman, 9 Abb. N. Cas. 403. 2. His fees and commissions. The plaintiff, who had given to one A. a chattel mortgage, as security for a promissory note, payable on demand, subsequently entered into a written agreement with him, by which it was provided that the note and mortgage should be deemed due, without any demand Doing made, and that the property should be placed in the hands of the defendant, an auctioneer, who should sell the same and pay from the proceeds thereof, after deducting the expenses incurred, and his commission at Ave per cent., the amount due to A., and turn over the balance to the plaintiff. Sdd, that though the defendant was not a party to the contract, yet it furnished the authority under which he sold the property and gave him the right to retain commissions at the rate of five per cent., and relieved him from the penalty imposed upon auctioneers who charge commissions in excess of the statutory rate.— Supreme Ct., {id Dept.,) Sept., 1880. Car- penter V. Le Count, 22 Hun 106. 3. After enough of the property had been sold to pay the amount due to A. and the ex- penses of the sale, the plaintiff directed the auctioneer to stop the sale, leaving unsold about $600 worth of property. Sdd, that the defend- ant was entitled to a reasonable compensation for his labor in including this unsold property in the catalogue which he had made for the sale. lb. AUTREFOIS ACQUIT. Judgment, III. AVERAGE. Insubancb, rv. AWARD. Aebitbation and Award, 5-9, 34 BAIL— BAILMENT. B. BAGGAGE. « Xiability for Loss of, see Eailboad Com- panies, IV BAIL 1. Validity of the bond or undertak- ing. It seems public policy requires that offi- cers armed with bailable process for the arrest of defendants, should, in taking securities for their enlargement, be held to a strict compliance with statutory requirements. — Ot. ofApp., March, 1881. Toles V. Adee, 84 N. Y. 222. 2. It seems also that the fact, that, under our practice, bail taken by a sheriff on discharging a defendant from arrest, stands in some sense both as bail to the sheriff and bail to the ac- tion, does not affect the application of the stat- ute making void obligations taken colore officii in any other case or manner as provided by law (2 Eev. Stat. 286, § 59,) when the undertaking contains conditions not prescribed by law ; nor is it in the power of the plaintiff afterwards to adopt the act of the sheriff and thereby avoid the effect of the illegality. lb. 3. It seems also that the validity of the security is not dependent upon the question whether it was voluntarily given or was extorted by actual duress and oppression. lb. 4. Liability of sberifif as bail. Re- arrest. The provision of the Code of Pro., § 201, making the sheriff liable as bail for a party arrested in a civil action "if bail be not given or justified," must be construed as meaning, if bail be not given, or do not justify as provided by the law and practice of the proceedings towards justification, provided in the foregoing sections; consequently, if the plaintiff's at- torney consent to a postponement of the justifi- cation of the defendant's sureties, though for an indefinite time, the sheriff is not liable as bail, and has no right to rearrest the defendant until an actual defa-ilt has been made by the sureti^, and no mere lapse of time will give him this right. In case of such re-arrest, before default, proof of notice by the sheriff-to the defendant that he would expect the undertaking to be approved of at once by the judge, on justifica- tion, or by the plaintiff's attorney, affords no defence to an action for false imprisonment, nor does ignorance of the existence of the stipula- tion postponing justification constitute a de- fence. — Superior Ot., April, 1880. Arteaga v. CConner, 46 Superior 91. 5. Exoneration of bail. Under Code of Pro., g 191, exoneration of bail by the legal dis- charge of the principal from the .obligation to render himself amenable to process within twenty days after the commencement of an ac- tion against them, was a matter of right, but after that time it was a matter in the discretion of the court. Therefore — Held, that an order denying a motion on the part of bail, made more than twenty days after the commencement of a suit upon the bail-bpnd, was not reviewable here ; it not appearing that the order was made upon any ground concerning which the court was not called upv.^ to exercise its discretion. — Ot. ofApp., June, 1880. Mills v. Hildreth, 80 N. Y. 91. 6. Bail are sureties with the rights and rem- edies of sureties in other cases. The neglect of a creditor, upon request of a surety, to proceed against the principal discharges the surety, if thereby the debt has been lost. Toles v. Adee, gwpra. 7. Surrender of principal. When the sheriff has become liable as bail, by reason of the failure of the original sureties to justify, he may exonerate hims.elf by surrendering the principal to the jail before the expiration of the time to answer, or within such time there- after as the court may deem just to prescribe.— Supreme Ot., (ith Dept.,) June, 1880. Douglass V. Haberstro, 21 Hun 320. 8. But to entitle the sheriff to an order, al- lowing him to surrender the principal, after the time to answer has expired, he must show a substantial and sufficient excuse for permitting the defendant in the execution to be at large. lb. Q. It appeared that the action in which the order of arrest was issued was decided in favor of plaintiff and decision filed in the clerk's office in July, 1868. In September, 1868, the defendant's attorneys served written notice on plaintiff's attorneys to tax costs and enter judg- ment, but no action was taken until Aprfl, 1874, when judgment was entered, and after re- turn of a property execution unsatisfied, body execution was issued and returned by the sheriff not found. The defendant has, since 1868, re- sided out of the state. He returned to the state in 1869 and in 1871, remaining on each occa- sion several weeks. During his visit in 1871 the executors of the surety in the undertaking made search for it at the clerk's office, but it had not then been filed. They then called upon plaintiff's attorney and informed him that the defendant was here ^ud would remain a month, and that they had searched for the undertaking so as to make a surrender ; they requested him to enter judgment, issue execution and enforce it, so that the estate might be discharged from liability, they offering to stipulate the costs to prevent delay. This he declined to do. Held, that as the undertaking was only enforceable upon the theory that it was an agreement good at common law and not requiring the aid of the statute, the testator stood as surety merely ; that he was the jailor of his principal, and the statutory provisions authorizing bail to surren- der their principal did not apply ; that laches was a good defence to the action ; and that the evidence required the submission of that ques- tion to the jury. Toles v. Adee, supra. BAILMENT. 1. Liability of bailee, generally. When, in an action to recover the value of goods, lost through the negligence of the bailee, their purchase price may be proved on the question of damages, see Jones v. Morgan, 24 Hun 372. BAILMENT— BANKRUPTCY. 35 2. Conversion by bailee— rights of purchaser. The rule that upon the wrongful conversion of securities by a pledgee, a purchaser can only hold them to the extent of his actual -advances, applied ; and when the plee/'er6Jic«on,seeAppKAi/,103-105; Trial, m. CANALS. Liability of Carrier by, see Cabeiebs, 4, 5. CARRIERS. 1. Liability for loss or damage, gener- ally. Where a common carrier performs his contract to transport and deliver goods, a pay- ment of the freight or a submission to judgment therefor does not preclude the owner of the goods from recovering damages for injuries thereto while em route; he may pay the freight and sue for the damages, or set up his damages by way of counter-claim in an action to recover the freight, or he may bring a cross-action. — Ct. of App., Deo., 1880. Schwinger v. Eaymond, 83 N. Y. 192. 2. Liability of carrier by sea. Under the English statutes in relation to compulsory pilotage in the port of Liverpool, an owner of a vessel is not relieved from liability for damage to freight unless a pilot was in charge under the act, and was actually and necessarily engaged in the discharge of his duty. Where, there- fore, a vessel had left its dock at Liverpool in charge of a pilot and anchored in the river Mersey, to finish loading and to receive coal for a voyage to New York, and while at anchor an accident occurred causing the loss — Seld, that the owner was not excused from liability by said statutes. — Ot. of App., Jan., 1880. Guiterman v. Liverpool, &c.. Steamship Co., 83 N. Y. 358. 3. The goods damaged were sold at public auction. Held, that evidence of the prices brought was competent as tending to show value, and upon the question of damages. lb. 4. — by canal. Where a carrier by canal neglects to protect his cargo, or to furnish means by which it may be done, according to his con- tract, and the cargo, in, consequence is injured by frequent rains, this does not constitute a marine disaster, and he is liable for the dani- ages. Schwinger v. Eaymond, mpra. 5. Carriage of goods on deck. A shipper, by consenting that his goods may be carried on deck, does not thereby assume the risk of loss or injury to them. lb. 6. Duty as to time of transporta- tion. As to what is an excuse for not for- warding the goods by the first conveyance, see Fowler v. Liverpool, &c., Steamship Co., 23 Hun 196. 7. Duty to deliver— effect of law of place. Plaintiffl contracted in New York with the N. & N. Y. T. Co. for the transporta- tion of certain goods by that company from said city to Boston, and the delivery thereof to plaintiffs, who were the consignees. The goods were received by defendants, who were connect- ing carriers over the latter part of the route, and were residents of Massachusetts. Upon arrival of the goods at Boston they were called for, but a delivery refused until the next day, as it was not convenient to deliver at the time. Tiiey were unloaded the same afternoon and placed in defendants' warehouse, but too late for delivery ; and during the night the ware- house, with the goods, was destroyed by fire. In an action to recover the loss — Seld, that de- fendants were liable ; and this, although under the decisions of the courts of Massachusetts, the operators of a railroad, as matter of law, cease to be common carriers and become warehouse- men, when the duty of transportation is com- pleted and goods are deposited in a warehouse awaiting the orders of the owner or consignee. —a. of App., . Nov., 1880. Faulkner v. Hart, 82 N. Y. 413 ; reversing 44 Superior 471. As to the interpretation, validity and effect of BUls of lading, see that title. As to the Measure of damages, in actions to enforce the carrier's liability, see Damaobs. For further decisions illustrating the law o f common carriers, see Eailboad Companies; Shipping. CASE. As to making and serving a Case on appad, see Appeal, 48-53 ; 102, 103. CASES AFFIRMED, REVERSED, &c. See Table op Cases Criticised, infra, CATTLE. Bight of Property in, see Animals; offence of (>uelty to, see Cbiminal Law ; damages for Killing on railroad troiok, see Bailboad Compa- nies, IV. CAUSE OF ACTION. For decisions as to any particular cause of action, see its Tide, or that of the Remedy 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 various Personal and Legal relations, see such titles as AccoiTNTiNG ; Attorney and Client ; Debt- OE AND Cbeditob; Divoece; Dowee; Ex- ECtTTOES AND AdMINISTBATOES ; GUABDIAN AND Wabd ; Husband and Wipe ; Infants ; Landlobd and Tenant ; Master and Ser- vant; Pabent and Child; Pabtnbbship; Peinoipal and Aoent; Pbincipal and Surety ; Vendoe and Puechaseb. CERTIORARI, I., II. 49 CAVEAT EMPTOR. ExEOTiTiON, I. ; Sales, III. ; Vendor and PUECHASER, I. CERTIFICATE. Of Aahnowledgment, see Deeds, 4, 5. Of Stock, see Corporations, II. As to the admissibility and effect of Official certificates and Certified copies of written instru- ments, as evidence, see Evidence, IV. CERTIORARI. I. In CiTiL Actions, geneballt. II. In Cbiminax Cases. I. In Civil Actions, generally. 1. Wlien the ■writ Will not lie. Where a subordinate tribunal had jurisdiction, and there was evidence legitimately tending to sup- port its decision, and no rule of law was vio- lated, the decision cannot be reviewed upon a common law certiorari. — Ct. of App., Oct., 1880. People, ex rel. Hart, •«. Fire Comm'rs of New York, 82 N. Y. 358. 2. The decision of a board of excise denying an application, made in pursuance of Laws of 1873, ch. 549, | 4, to have a license revoked on the ground that the licensee has violated the provisions of the act, is not reviewable upon a certiorari, when the board has not exceeded its jurisdiction or proceeded otherwise than in ac- cordance with law. — Supreme Ot., (2d Dept.,) Feb., 1881. People, ex rel. Funke, v. Board of Excise, 24 Hun 195. 3. Time to apply for the •writ. Un- reasonable delay in applying for the writ of certiorari is a good ground for quashing it after hearing on a return thereto. — Ol. of App., Nov., 1880. People, ex rel. Waldman, v. Police Comm'rs of New York, 82 N. Y. 506. 4. Prior to the adoption of sections 2125 and 2126 of the Code of Civil Procedure there was no statute nor rule of law prescribing any fixed period within which a writ of certiorari must be applied for, but the decision of that question was left to the discretion of the court to which the application was made. — Supreme Ot., (1st i)ep«.,) Nov., 1880. People, ex rel. Smith, V. Cooper, 22 Hun 515. 5. On April 6th, 1879, the defendant, the mayor of New York, certified to the governor that he had removed the relator from his ofiEice of police commissioner. From that time until January 27th, 1880, when the case of Peo- ple V. Nichols was decided by the Court of Ap- peals, the right of the relator to review such removal by a writ of certiorari was in dispute. On February 2d, 1880, the relator applied for and obtained a, writ of certiorari. Held, that the court below properly held that he was guilty of no laches which would authorize a denial of the writ. lb. 6. On September 8th, 1879, the relator ap- plied for a writ of certiorari to review the pro- ceedings by which he was removed from his position as a member of the police force of the city of New York, which proceedings were completed and terminated en December 24th, 1878. Held, that in the absence of any excuse for his omission to sooner apply for the writ, his application was properly dismissed, because it was not made with reasonable' diligence. — Supreme Ct., {\st Dept.,) March, 1881. People, ex rel. Stevens, v. Police Comm'rs of New York, 24 Hun 284. 7. 'What errors are ground for re- versal. Under section 2140 of the code, the scope of a review upon certiorari has been en- larged ; and a judgment may be reversed, if there be such a preponderance of proof against the existence of the facts found against the relator as would, had the facts been found by a jury, call for a reversal of the verdict, as against the weight of evidence. — Supreme Ot., (2d Dept.,) April, 1881. People, ex rel. Fitz- simmons v. Jourdan, 1 Civ. Pro. 328. 8. Costs. Costs of appeal in proceedings by common law certiorari are not allowable, whether the proceedings come here upon appeal from a judgment, or from an order superseding the writ.— Ci. of App., Dec., 1879. Smith v. Village of Nelliston, 79 N. Y. 638. , II. In Criminal Cases. 9. What is reviewable. Writs of er- ror and of certiorari will issue from the Supreme Court to review a trial and conviction had in the City Court of Brooklyn, upon an indict- ment found in the Court of Sessions and trans- ferred to the City Court for trial. — Supreme Ot., (2d Dept.,) Sept., 1880. People, ex rel. Fla- herty V. Neilson, 22 Hun 1. 10. What may not be reviewed. A decision overruling a demurrer interposed to an indictment and directing that judgment be given for the people, unless the accused plead over, cannot be reviewed upon a certiorari be- fore a judgment has been entered on the de- cision. The court cannot review the decision before entry of judgment, even though the counsel for both of the parties agree that it may so review it. — /Supreme Ct., (3d Dept,,) Sept., 1880. People v. Beman, 22 Hun 283. 11. The return. As to the requisites of the return by the magistrate, as respects the making and filing of the certificate of conviction, the ne- cessity that the evidence appear in the record, &c., see cases of Lynch & Burns, 9 Abb. N. Cas. 69. 12. Wliat errors are ground for re- versal. During the trial of the plaintiff in error upon an indictment charging him with a conspiracy to defraud the city, the judge called one of the jurors and the counsel for the pros- ecution and the defence into a room, and, after showing to the juror an anonymous letter, which stated that the juror had been in the habit of playing cards with the sons of the plaintiff in error, asked him if he knew who wrote it, to which the juror replied that he did not. The judge then said that it was "very embarrassing and unpleasant, and, toward a juror, monstrously unjust and a serious impu- tation." The plaintiff in error was not present, and the judge said, when the counsel for the 50 CERTIORARI, II.— CHATTEL MORTGAGES, I., II. plaintifif in error attempted to speak, that " he did not expect counsel to make any observa- tions." There was no proof that the facts stated in the letter were true, nor was the juror asked if they were true. Hdd, that the con- viction should be reversed, as the tendency of this action by the judge was to dominate the juror's free will and terrify him into a verdict for the people. People, ex rel. Flaherty, v. Neileon, supra. CESTUI QUE TRUST. Tbttsts, III. CHAMPERTY. Advbbsb Possession j Attokney and Cm- jemt; Deeds. CHARGE. As to Instructions to the jury, see Teial, VI., "VIII. ; and the titles of the various causes of action, civil and criminal. As to Ohargmgkgaeies upon land, see Devise ; Legacies, II. ; Wills, V. CHARTER. CoBPOEATiONS, I. ; and the titles of the va- rious corporate bodies. CHATTEL MORTGAGES. I. What mat be Mortgaged, and what Debts SEOtrEED. II. Eights of the Pabties. III. Eights op Cbeditoes, and Puroha8bes IN Good Faith. I. What mat be Moetgaged, and what Debts Secueed. 1. General nature of the instrument. As to what instrument need not be recorded as a chattel mortgage, because evidencing a condi- tional sale rather than a mortgage, see Nash v. Weaver, 23 Hun 513. 9. Validity, form, &o. On October 17th, 1877, one Smith executed and delivered to plaintiff a chattel mortgage, which was, on March 11th, 1878, filed in the proper office. On March 11th, 1879, Smith, with the concur- rence and under the direction of plaintiff, made upon the mortgage the following state- ment, viz.: "Smithtown, March' 11th, 1879. This chattel mortgage is hereby renewed for one year from this date. As witness my hand and seal. Caleb T. Smith, [l. S.] Sworn to before me this 11th day of March, 1879. Jacob B. Conklin, Notary Public." Sdd, that the effect of this act was to create a new mortgage, valid as against Smith and his creditors. — Su- preme a., {IdDept.,) Sept., 1880. Smith «. Cooper, 22 Hun 11. 3. A chattel mortgage given by a vendee to his vendor, upon the goods purchased, is not rendered invalid, as a matter of law, by reason of an oral agreement, entered into at the time of its execution, by which the vendee agrees to manufacture the goods purchased into other articles and sell the same, and when such arti- cles are sold to pay to the mortgag;ee the cash received upon cash sales, and assign to him the accounts for sales made on credit ; the cash and accounts so received being applied, when so paid or assigned, in payment of the debt secured by the mortgage. — Supreme Ct., (4«A Dept.,) Oct., 1880. Caring v. Eichmond, 22 Hun 369. 4. Necessity of actual possession by mortgagee. To satisfy the provisioa of the statute (Laws of 1833, ch. 279, as amended by Laws of 1873, ch. 501,) declaring every chattel mortgage not accompanied by immedi- ate delivery and " followed by an actual and continued change of possession" of the mort- gaged property to be void unless the mortgage is filed, and that a mortgage so filed shall cease to be valid as against creditors after one year, unless a copy be filed, &c., a constructive or legal change of possession is insufficient ; the possession by the mortgagee must be actual, open and public. — Ct. of App., March, 1881. Steele v. Benham, 84 N. Y. 634; reversing 21 Hun 411. 6. S., who was carrying on a manufacturing business on premises owned by him, executed to H. a mortgage on certain of his personal property used in the business. The mortgage was duly filed. S. remained in possession and continued to carry on the business. The mort- gage was not refiled as required by the statute. In an action to recover for the alleged taking and conversion of the mortgaged propeirty which had been levied upon by defendant un- der an execution against S., the testimony on the part of the plaintiff, who is the wife of 'S., was to the effect that the mortgage, soon after its execution, was for a valuable consideration assigned to her ; that the business and property were formally turned over to her, she giving to S. a power of attorney, authorizing him to carry it on for her and agreeing to pay him a stipu- lated sum for his services ; that she went to the shop once or twice and gave some directions, but took no personal charge of the business, and S. continued to carry on the business, hav- ing personal charge of and apparent actual pos- session of the property as before. HeM, that there was no such possession in the plaintiff as the statute requires ; and that, therefore, the mortgage not having been refiled, ceased to be valid at the end of the year, and the property was lawfully levied upon by defendant ; and this, although at the time of the levy the pay- day named in the mortgage had passed. lb. II. Eights of the Pabties. ' 6. Rights of mortgagee after de- CHATTEL MORTGAGES, II., III.— CHECKS. 51 fault. If the mortgagee in a chattel mort- gage takes possession of the mortgaged property, after a forfeiture of the conditions of the mort- gage, it is a satisfaction of the mortgage debt, providing the value of the property is suffi- cient ; but if, upon a fair soZe of the property, less than the amount of the debt be realized, the mortgagee may sue for the balance. — Sw- preme Gt., {4eA DepQ Oct., 1880. Mott n. Ha- vana Nat. Bank, 22 Hun 354, 357. III. Eights op Creditoks, and Ptjkchasebs IN Good Faith. 7. Protection of bona flde purcliasers from mortgagor. B. executed to plaintiff a chattel mortgage upon a span of horses ; both parties were then residents of this state, and the horses were in the state. B. subsequently took the horses to Canada, where they were sold by a regular trader dealing in horses, the pur- chaser buying in good faith, without knowledge of plaintiff's claim. Under the laws of Canada property cannot be reclaimed, from one so pur- chasing, without refunding to him the price paid. Defendant, a resident of this state, bought the horses in Canada from such pur- chaser; they were left in Canada. Upon re- fusal of defendant to deliver them up on demand, this action, for their conversion, was brought. Seld, that plaintiff was entitled to recover. — Ot. of App., Jime, 1880. Edgerly v. Bush, 81 N. Y. 199 ; rmersing 16 Hun 80. 8. April 22d, 1878, one M., a member of the firm of X. & M., executed in his own name and gave to defendant a chattel mortgage upon personal property of the firm, and upon all the lumber and stock it should thereafter acquire. Y. ratified the act of M. in giving the mort- gage. About August 1st, defendant, claim- ing under the mortgage, which had nevel- been filed, took possession of the property described in it, and of certain other property subsequently acquired by the firm, and sold the same as therein provided, on August 12th. On August 9th, Y. & M. executed to plaintiffs a bill of sale of part of the property covered by the mort- gage, in part payment of a pre-existing debt. In an action by plaintifife to recover the value of the property sold by the defendant — Hdd, 1. That as the plaintiffi were not judg- ment creditors of the firm, they could not attack the validity of the mortgage, because it had not been filed. 2. That as the property was in the actual possession of the defendant when the bill of sale was executed, and the plaintiffs took it in payment of a pre-existing debt, they were not bona flde purchasers, and had no greater rights, as against the defendant, than their grantor had. 3. That as between the firm and the defend- ant, the court would sustain the mortgage and protect the defendant in the possession of the properrty, whether it had been acquired by the firm before or after the execution of the mort- gage. — Supreme Gt., (4th Dept.,) Jan., 1881. Kennedy v. Nat. Union Bank of Watertown, 23 Hun 494. As to mortgages of Land, see Moktqages. CHATTELS. Bailment; Execution; Sales; Tkotbb. CHEATS. False Pbetences. CHECKS. 1. Liability of dra'wer. Neither the fact that a check was dishonored when trans- ferred, or that presentment for payment has been delayed, discharges the drawer. H dis- honored, any defence thereto against the payee will be available against liis transferee : but no presumption arises that over-due or dishonored paper is invalid. If loss results to the drawer by delay in presentment, that is matter of de- fence.— Oi!. of App., Dee., 1879. Cowing v. Alt- man, 79 N. Y. 167. , • 2. The drawer of a check undertakes that the drawee wiU be found at the place where he is described to be, and that the sum specified will there be paid to the holder when the check is presented ; and if not so paid and he is noti- fied, he become^ absolutely bound to pay the amount at the place named. The rights of the parties, therefore, are to be governed by the laws of the place of payment. — Ct. of App., March, 1881. Hibemia Nat. Bank v. Lacombe, 84 N. Y. 367 ; affirming 21 Hun 166. 3. Exchange of checks— rights of holder. Where two persons have exchanged checks, upon the agreement that each will keep his account good to meet his. check at maturity, the fact that one person has failed to keep his account good constitutes no defence to the other when sued upon his check by a bona fide holder thereof.— Supreme Gt., {1st Dept.,) March, 1881. Frazier v. Trow's Printing, &c., Co., 24 Hun 281. 4. Date. The fact that a check bears a date subsequent to that on which it was made and issued does not render it invalid. lb. For decisions upon the liability of the Bank upon which a check is drawn, see Banks and Banking, 12-15. CHILD. As to Personal and Property rights of children, see Infants.^ As to Illegitimate children, see Descent. For some decisions respecting OnuUy to chil- dren, see Cbiminal Law, 6-9. CIRCUMSTANTIAL EVIDENCE. Evidence, I. 62 CITIZENS— CLOUD ON TITLE. CITIES. For decisions of a local character, affecting some Partieular city, village or town only, see Brooklyn ; BtirpALO ; Municipal Cobpoba- TIONS, V. CITIZENS. 1. "Wives of citizens are citizens. Where an alien female intermarries with a citi- zen, by virtue of the marriage she becomes a citizen and capable of taking and holding lands in this state by purchase or descent. (10 U. S. Stat. at L., 604; 1 Eev. Stat. 719„§ 80—05. ofApp., Feb., 1881. Luhrs v. Eimer, 80 N. Y. 171. 2. Naturalization proceedings. The court cannot issue a certificate of naturalization nwne pro tune, when no record has been made of the steps taken antecedent to the issuing of the certificate. It will not be presumed that things have been done in respect to the naturalization of persons, which do not appear of record. — Superior Ct., (Sp. T.,) Jan., 1880. Matter of Desty, 8 Abb. N. Cas. 250. 3. Proof of citizenship. Where a per- son asking to be registered as a voter claims to be a citizen by virtue of the naturalization of his parents, the best evidence of the naturaliza- tion of the parent would be the original certifi- cate of naturalization, or a duplicate thereof, when it can be obtained. But a party may, in the matter of proving his citizenship, resort to secondary evidence when primary evidence can- not be obtained. — Supreme Ct., ( 1st Dept. Sp. T.,) Oct., 1880. People, ei rel. O'Donnell, v. Mc- Nulty, 59 How. Pr. 500; S. C, 9 Abb. N. Cas. 468. As to the rights and disabilities of AlicTis, see that title. CIVIL RIGHTS. As to the right to Trial by jury, see Tbial, I., VIII. ; right not to be Twice put in jeopardy, see Jtjb&ment, III. ; right to Vote, see EiiECTiONS. CLAIM AND DELIVERY. Eeplevin. CLERKS. New Yobk City, III. CLOUD ON TITLE 1. Irregular or unlawftJ assess- ments. To authorize the interposition of the court to remove the lien of an assessment as a cloud upon title, it must appear that the record or proceedings are not void upon their face, and that the elaimant under it would not, by the proof which he would be obliged to produce in event of an attempt to enforce his claim, de- velop the defects rendering it invalid. — Ct. of App., June, 1880. Dederer v. Voorhiea, 81 N. Y: 153, 156. 2. An action cannot be maintained to set aside an assessment, as a cloud on title, on the ground that the act under which the assess- ment was laid, is unconstitutional. If the act is unconstitutional, the assessment is void upon its face, and so is not a cloud on plaintiff's title. — Ct. of App., Feb., 1880. Wells v. City of Buffalo, 80N. Y;-253. 3. Forged deeds. An action is maintain- able for the cancellation, as a cloud on title, of a forged deed which, upon the strength of a false certificate of acknowledgment, made by an officer duly authorized, has been put upon record. — Ct. of App.. Sept., 1880. Bemington Paper Co. v. O'Dougherty, 81 N._Y. 474. ■4. As to whether the allegation of forgery simply would be a sufficient ground for invoking the jurisdiction of a court of equity, see lb. 482. 5. Where the law raises a presumption of the validity of a conveyance, and its invalidity can only be shown by extrinsic proof, an action to compel its surrender and cancellation as a cloud on title is maintainable. lb. 483. CODICldS. Wills, V. COHOES. Municipal Cobpoeations, 50, 51. COLLATERAL SECURITY. Bailment, 2-7. COLLECTOR. As to collectors as Agents, generally, see Pein- ciPAL AND Agent. As to the Collection of taxes, and the powers and liabilities of the collector and his sureties, see Taxes, III. Of Assessments, see Municipal CoBPOBATioNS, II. ; New Yoek Citt, II. As to collection of moneys due to JDecedeniff estates, see Executors and Administeatobs, III. COLLISION. Shipping, 8. COMMISSION. To take Depositions, see Depositions. . Of various Officers and Agents, as compensation for their services, see Officers ; Principal and AoJiNT ; and the titles of the various distinct classes of officers. CONSPIRACY. 53 COMMON CARRIERS. Cabbiers. COMMON PLEAS. As to Appeais to, from the Marine Court of the City of New York, see Appeal, IV. COMMON SCHOOLS. Schools. COMPENSATION. Eminent Domain; Highways; Muni- cipal CoRPOBATiONS, II. ; New Yobk City, II. ; Raileoad Companies, II COMPLAINT. Amendment, 2-6; Pleading; and the titles of the various forms and causes of action. COMPROMISE. As to the Attortm/'s authorUy to compromise a pending litigation, see A^ttornby and Cli- ent, II. As to the Power of a partner to compromise debts of the firm, see Paktnership, II. Effect of an Account stated, see Accounts, 1, 2. . What IS an Accord cmd sat Debtor and Creditor, III. CONCEALMENT. Attachment, II.; Insurance, II., III., IV.; Limitations op Actions, IV. CONDITIONS. Bonds; Contracts; Deeds; Insurance; £ales. CONFESSION. Of Orime, see Evidence, ILL. Of Jvdgment, see Judgment, VIII. CONFLICTING CLAIMS TO REAL PROP- ERTY. Ejectment. CONSOLIDATION OF ACTIONS. Action, 6-7. CONSPIRACY. 1. Oivil action for— pleading. Plain- tiff's complaint alleged, in substance, that a co- , partnership existed between himself and de- fendant K., which was doing a prosperous business, that defendants entered into a con- spiracy to break up this business, in pursuance of which the other defendants commenced an action against K., in which he ofiered judg- ment; the offer was accepted and judgment entered, which was enforced by a levy on K.'s interest in the partnership property. Whereas, at the time of the entry of the judgment, K. was not indebted to his co-defendant in any sum whatever, but " the supposed debt was ac- knowledged * * * in pursuance of said conspiracy." Defendants answered, putting in issue the allegations as to the conspiracy, and alleging that the judgment was for an actual indebtedness. On the trial it appeared that an indebtedness for the full amount of the judg- ment existed, but, as the evidence- tended to show, the debt was not due at the time judg- ment was rendered. Defendants moved for a dismissal of the complaint, on the ground that the allegations thereof had not been proved. No request to amend the complaint was made. Held, that a denial of the motion was error ; that aside from the question of pleading, and conceding that the debt was not due when judg- ment was rendered, it did not establish the cause of action ; that it was in the power of the debtor and his right to waive the running of the credit and permit the debt to be treated as due and payable; and that with whatever motive it was done, this did not aid the plaintiff, or give to him a right of action. — Ct. of . ' June, 1880. Neudecker v. Kohlberg, 81 N. ' 296. 2. Evidence — damages. Evidence was given on the trial, tending to show that prior to the formation of the partnership between plaintiff and K , and as an inducement to the former to enter into it, the other defendants agreed to and did loan a sum of money to K. for two years, T^ich he put into the firm as his share of the capital. The judgment obtained against K. was for the money so loaned. It appeared that the business had resulted in a loss, and that in an action brought by plaintiff a receiver had been appointed. Held, that if the action had been brought upon the agree- ment, plaintiff would, in no view, have been entitled to more than nominal damages. lb. 54 CONSTITUTIONAL LAW. CONSTABLES. Foi decisions illustrilting the natuie of the office, and the duties and liabilities attendant upon it, see Execution ; Sheeifps. CONSTITUTIONAL LAW. [The following titles should be oonsulted for matters intentionally omitted here: Bakkbtjptcy; Banks; Citizens; Cobpobations ; Counties; Cohbts; EuscTiONS ; Bmhtknt Domain ; Jitdgmbnt ; Li. So. T.,) June, 1880. People v. Long Island E. E. Co., 9 Abb. N. Cas. 181. 24. H. claimed title to a mortgage executed by B. to F. under a trust deed executed by the latter. F. brought suit against H. to set aside the trust deed, in which action a receiver was appointed of the trust property, with authority to collect and satisfy the mortgage. While the order appointing the receiver was in force, one J. F. H., without authority from or request by B., paid to the receiver the amount of said mort- gage, receiving the mortgage and a satisfaction- piece thereof, and the receiver paid over the amount to F. H. thereafter commenced an ac- tion to foreclose the mortgage, making B., the mortgagor, and T., who held a junior mortgage on the premises, defendants. B. answered, al- leging payment and satisfaction of the mortgage. B. and T., thereupon, entered into a contract with J. F. H., by which the latter agreed to fur- nish the papers and evidence to sustain the de- fence ; in consideration thereof, and if the de-' fence should be successful, B. and T. agreed to pay one-half the amount of the mortgage. J. F. H. performed the contract on his part and the action of H. was defeated. In an action upon the contract — HeM, that plaintiff was entitled to recover, that no corrupt intention appeared upon the face of the contract, and under the circumstances disclosed, there was no ground for supposing that it was entered into for the purpose of perverting justice by pro- curing false testimony in support of the defence in the foreclosure suit. — Ct. of App., March, 1881. Wellington v. Kelly, 84 N. Y. 543. 25. As to the validity of a contract to pay for services for collecting an "Alabama claim," and what is sufficient performance to authorize a recovery of the stipulated compensation, see Lawson v. Bachman, 81 N. Y. 616. 26. Stock speculation contracts. Plaintiff purchased, through the agency of de- fendant, a stock option or privilege known as a " straddle," which secured to her the right to demand of the seller, at a price stated, a certain number of shares of a specified stock, or to re- quire him to take said stock at the same price, within sixty days. Plaintiff was induced to make the purchase by printed circulars issued by defendant, explaining the nature of a " stradle," offering to purchase one of his selec- tion upon payment of a specified sum, and guaranteeing that fluctuations in the stock dur- ing the pendency of the contract would amount to eight per cent., and in case it did not, agree- ing to refund the amount paid, less commissions. Plaintiff authorized defendant, us her agent, to exercise the option. On the next day after the purchase defendant sold the stock "short," which resulted in a loss. Defendant claimed on appeal that this was a gambling transaction, and as such prohibited by statute. No such de- fence was set up in the answer. Held, that the contract was not of necessity a wager contract ; that this was for defendant to prove ; and that the fact that it might have been so did not dispense with the necessity of proving that it was. — Ct. of App., Bee., 1880. Harris v. Turn- bridge, 83 N. Y. 92. 27. Contracts respecting lotteries. The law will not presume a contract illegal, or against public policy, and so void, when it is capable of a construction which will make it lawful and valid. — Ct. of App-, Nov., 1880. Ormes v. Dauchy, 82 N. Y. 443 ; affirming 45 Superior 85. 28. A contract made in this state to advertise a lottery in other states, in the absence of proof that such advertisement is in violation of the laws of those other states, will not be held illegal. lb. 29. Defendants contracted with plaintiff's firm that if the latter would procure for them the advertising work of a Virginia corporation, to be done in various newspapers throughout the country, that they would pay said firm ten per cent, on the moneys received by them. A list of 1,130 newspapers was produced, 200 of which were published in this state, and the contract, as testified to by one of the defendants, was for a publication in the entire list. Through the efforts of said firm, defendants procured a con- tract for the advertising. In an action to re- cover the stijulated percentage, the defence was that the contract was for the publication of lot- tery advertisements, and so was illegal. The contract between defendants and the Virginia corporation was not produced by them. No evidence was given of a publication in any news- paper in this state, and the monthly bills ren- dered by defendants for the publication were much less than what was stated to be the charge for all the papers in the list. There was no proof that the contract was in violation of the laws of Virginia, or that the laws of any other state were violated. Hdd, that it was a question- of fact for the jury whether the contract with the corporation embraced any newspaper pub- lished in this state ; that, as it appeared defend- ants had control of the contract and did not pro- duce it, every intendment was against them ; that a contract to advertise in other states was. not shown to be illegal ; and that, therefore, a refusal to dismiss the complaint was not error. Ih. 30. Contracts to drive race-horses. It is not unlawful to trot horses for purses, prizes or premiums at any place where, by statute, it is authorized, or to contract to drive a horse in a trotting race at such place. — Ct. of App., Sept., 1880. Harris v. White, 81 N. Y. 532. 31. As there are special statutes, and a gen- eral statute, authorizing the formation of asso- ciations having a right to offer premiums or re- wards for such contests, a party seeking to avoid a contract to pay for services in driving a horse^ ^0 CONTRACTS, V., VI. in trotting races, as coming within the prohibi- tions of the statute, must aver and prove that the services were contracted to be rendered at a place, and in trotting for prizes or rewards not •within the exception of the statute. lb. S2. Plaintifis entered into a contract with defendant, whereby plaintiff E. L. H. was to •drive the horses of defendant during the trotting season of 1875, at such times and places as defendant might desire, in races or contests ■of speed for purses, prizes or premiums. De- fendant's horses had at that time been entered for races at various places, all of them but one ■out of this state. The contract was entered into with these places in contemplation, and such ■others as defendant should designate. By the laws of this state races for purses and prizes were authorized at the places so in contempla- tion in this state. E. L. H. drove defendant's horses at places designated by him in this and other states. In an action to recover the con- tract price for the services of E. L. H., it ap- peared that races were authorized under the statutes of the state for purses or prizes at most of the places in this state where defendant's horses were driven, and it did not appear that they were not so authorized at the others. Held, ■that the contract did not stipulate for a driving for a bet, wager or stakes within the prohibi- tion of said statute, and so was not illegal. lb. 33. \ Defendant gave evidence of the dealings ■of the parties in reference to the same horses prior to the contract, to the effect that they con- nived with the owners or drivers of other horses that there should not in fact be a contest, but that a horse agreed upon should be allowed to come in ahead, and that they bore the expenses of the horses and shared in the winnings, and bought pools and divided the avails. HM, that as there was no statutory disapprobation of such feigned races, and as the evidence authorized an inference that these former practices were to be abandoned, and that plaintiffs should be ■compensated for their services by the payment of a definite sum, a finding that the contract did not contemplate a driving for a bet, wager or stakes, and was not in violation of any statute ■of this state, was justified. lb. 34. Testimony was given to the effect that -defe.ndent made similar secret arrangements with the owners of other horses during the sea- son of 1875, and that plaintiff drove by the ■order of defendant, so as to make it sure to those in the plot which horse would win. ffeld, that this was not riding or driving for a bet, wager ■or stakes ; and, while fraudulent and wrongful, was not statutory wrong-doing. lb. 35. Testimony was also given tending to show that after such secret arrangement had heen made, defendant and E. L. H. bought pools and gained thereby. BUd, that it was not so conclusive that this was in contemplation of the parlies as to make it plain that a finding that it was not was erroneous, lb. 36. It appeared that defendant paid en- trance fees for his horses. Held, that this was not a staking of so much of his money on the result, as the entrance fee did not specifically make up the purse or premium trotted for. lb. 37. Contracts contrary to putolio policy. The plaintiff having left her husband, the defendant, and brought an action against him to procure a divorce on the ground of his adul- tery, in which prima fade evidence of his guilt had been given, agreed with him to discontinue the action, without costs to either party, and to return to and live with him on condition that he should give his note for $1000 to her father for her benefit. The note was given, the suit discontinued, and the wife returned to and lived with her husband for several years. In an action brought by her upon the note after she had again separated from her husband :. Hdd, 1. That the note was founded upon a good consideration, and was not void as being against public policy. 2. That the note having been assigned to the wife, she could bring an action at law upon it, and that, even if she could not maintain an ac- tion at law, equitable relief might be afforded to her under a complaint stating the facts. — Su- preme Ct. [Uh Depi.) April, 1881. AdaWs v. Adams, 24 Hun 401. 38. Promise induced by threats. Plaintiff being indebted to the defendant in the sum of $71, for two notes, which had been forged by plain tiff and transferred to defendant, it was agreed that a wagon belonging to plaintiff, and then in possession of defendant, should be exposed for sale at public auction, and that plaintiff should not forbid the sale, and defend- ant agreed, in consideration thereof, to surrender the notes. The wagon was accordingly sold, and purchased by defendant, who surrendered the notes to plaintiff, by whom they were de- stroyed. At the time of the making of the agree- ment plaintiff was not in custody, nor was he threatened with an illegal arrest. Held, that an action by plaintiff to recover the value of the wagon, on the ground that the agreement was procured by threats, and was made to com- promise a felony, could not he maintained. — Supreme Cl., (3d D&pl.,) November, 1880. Kis- sock V. House, 23 Hun 35. VI. Peefoemance. Breach. 39. Obligation to perform or show ■waiver. A literal performance of a building contract, in every detail, is not a condition pre- ' cedent to the right of the contractor to require payment. — Ct. of App , June, 1880. Heckmann V. Pinkney, 81 N. Y. 211, 214. 40. By the terms of a contract between de- fendants P. and G., the latter agreed to make certain repairs and alterations upon the prem- ises of the former, the work to be completed in two months. G. leased certain other premises of P., and it was agreed that the rent falling due before the completion of the contract was to be credited upon the contract price. In an action by a sub-contractor to foreclose a me- chanics' lien it appeared that the contract was not performed within the time, but the referee found that it was substantially performed before the commencement of the action, and that defendant had waived performance as to the items wherein there was not perfect per- formance. Hdd, that the failure to perform was no defence. lb. 41. The referee allowed defendant the rent falling due up to the time of the commencement of the action. Hdd, no error ; that for the purpose of the action the contract must be treated as then performed. lb. 42. "What is a suflacient perform- ance. Where a contractor has in good faith in- tended to comply with a building contract, and CONTRACTS, VI. 61 has substantially so done, although there may be slight defects caused by inadvertence or un- intentional omission, which are susceptible of remedy without difficulty, so that an allowance out of the contract price will give to the other party a full indemnity, he may recover the con- tract price, less the damages on account of such defects.— a. of Am) , March, 1880. Wood- ward V. Fuller, 80 N. Y. 312. 43. To justify a recovery, however, the de- fects must not run through the whole work, or be so essential as that the object to have a specified amount of work done in a particular manner, is not accomplished, lb. 44. Where, therefore, plaintiff undertook in good faith the performance of a contract for altering a dwelling-house, and performed it substantially, but through his own inadvertence and that of his workman, and through want of skill and judgment on their part, some of the specifications were not fully performed, i. e , the roof and chimneys were not well supported, folding-doors were not well hung, and the cas- ings thereto well fitted, tar-paper and clap- boards, in a few instances, not well put on, and one door and casing not fitted so that the door would shut — Held, that as it appeared that all of the defects could be easily remedied, and they did not pervade the whole work ; also that they were not so essential as to defeat the object of the parties, plaintiff was entitled to recover the contract price, less the damages. lb. 45. Plaintiff also contracted separately to build a piazza, which contract he performed, and he did extra work. Held, that in any view plaintiff was entitled to recover for the piazza and the extra work ; that money paid upon the principal contract could not, nor could the damages be set off or applied thereon. lb. 46. What is a sufficient performance of a contract on plaintiff's part to entitle him to damages for non-performance on defendant's part, determined in a case depending upon pe- culiar and unusual circumstances. Barnes v. Brown, SON. Y. 527. 47. "What is not sufficient. In case of a contract where one party is to build a, wall at the joint expense of both, and certain other things are to be done at the expense of the other, when the party who was not reqnired so to do, built a wall, but not the one called for by the contract, he cannot call on the other for contribution, nor do these facts relieve him from his obligation to pay for the other things which were to be done at his expense. — Sir perior Ot., Feb., 1880. Scott v. Sanford, 46 Su- perior 544. 48. Defendant and one O'D. entered into a contract for the purchase by the former, and sale by the latter, of certain premises. De- fendant agreed to pay a, portion of the pur- chase price by the assignment of a mortgage which he covenanted should be a valid and subsisting first lien ; the property covered by it to be of the value of ^4000. CD. conveyed the premises and defendant assigned the mortgage ; the assignment contained a guaranty that the mortgage was a valid and subsisting lien, but contained no covenant as to the value of the mortgaged premises or as to the priority of the lieu. Held, that the acceptance of the assign- ment was not a satisfaction or extinguishment of the covenant as to value in the agreement ; and that an action was maintainable for a breach thereof.— Oil. ofApp., Nov., 1880. Smith v. Hol- brook, 82 N. Y. 562. 49. What ■will excuse non-perform- ance—inability to perform. To excuse non-performance of an express condition in a contract, it must appear that performance could not, by any means, have been accomplished. — Ct. of App., Nov , 1880. Wheeler v. Connecti- cut Mut. Life Ins. Co., 82 N. Y. 543 ; reversing 16 Hun 317. 60. Waiver of strict performance. Plaintiffs contracted orally to sell and deliver to defendants at a price named six hundred and ninety-nine boxes of glass, the whole to be de- livered together at one and the same time. Prior to the delivery of any portion, defendants wrote to plaintiffs to forward them at once a small por- tion described. Plaintiffi delivered three hun- dred and sixty-five boxes, which defendants accepted, received and used without any notice to plaintiffs that they insisted upon a delivery of the remainder, or any reserve of thi condi- tion of full delivery. Some days after the de- livery, defendants wrote plaintiffs that they wanted the order completed in a reasonable time. Subsequently, there was a correspond- ence between the parties growing out of a mis- understanding as to its terms. Plaintiffl then wrote, offering to complete the contract, which defendants declined, on the ground that the time for performance had expired. Defendants at no time claimed that they were not liable to pay for the boxes delivered, but claimed to be allowed damages for the non-delivery. Held, that the facts justified a finding of a waiver of the condition of complete performance before they should become liable to pay for the part delivered ; and that while defendants had a right to.ieooup damages for failure to deliver as agreed; yet not having claimed it in their answer they could not prevent a recovery for the glass actually delivered — Gt. of App., June, 1881. Avery v. Willson, 81 N. Y. 341. 51. The parties to this action entered into a' contract, by which plaintiff agreed to build for defendants a grain elevator of a certain capacity, for a sum specified. The contract provided that if, after a trial of the elevator, " there proves to be any deficiency in the working of any of its parts, such parts shall be removed and replaced with new and acceptable work " by plaintiff; it also provided for a retention by defendants of twenty-five per cent, of the con- tract price until the whole work was completed and accepted. Plaintiff built the elevator, de- fendants took possession, and thereafter con- tinued to operate it ; they also paid the contract price in full. The elevator was not of the stip- ulated capacity, and defendants, without notify- ing plaintiff of the deficiency, expended money in improving the elevator, raising it to a capacity beyond that stipulated for in the contract. In an action upon another contract, defendant set up the sums so expended as a counter-claim, and they were allowed by the referee. Held, error ; that while plaintiff was bound to remedy any defects, in order that he might do 80, defendants were obligated to give him notice ; that they could not, when defects were discovered, remedy them at the expense of plaintiff and in his absence, without notice or an opportunity on his part to do so. — Ct. of App., Sq)t., 1880. Mansfield v. Beard, 82 N. Y. 60. 62 CONTRACTS, VIII., IX., X. VII. Modification. VIII. Eescission. 52. Restoration of the considera- tion. The rule that one seeking to rescind a contract, for fraud, must restore what he re- ceived under it, applied to the facts of the particular case. — Supreme Cl., {4th Dept.,) June, 1880. Gould I). Cayuga, &c., Nat. Bank of Auburn, 21 Hun 293. IX. Law or Place. 53. Effect of, on loans. A party re- siding in one state who goes into another_ state and there makes an agreement with a citizen of that state for a loan, lawful by its laws, but usurious under the laws of the borrower's state, cannot render his obligation void by making it payable in his own state. Nor does the fact that the obligation is executed in the latter state, and sent to the lender by mail, require that it should be governed by the usury laws of the state where it was signed. — Ct. of App., Sept., 1880. Wayne Co. Savings Bank v. Low, 81 N. Y. 566 ; S. C, 8 Abb. N. Cas. 390. 54. — on guaranties. In October, 1872, the N. S. S. C, a corporation organized under the laws of this state, and having its principal place of business in Rome, Oneida county, ex- ecuted at that place bonds, to the amount of $150,000, payable January 1st, 1878, at a bank in New York city, secured by a mortgage upon real estate owned by it at Sandusky, Ohio, payment of the bonds being also secured by a joint guaranty thereof, executed in this state by one W. and others. Thereafter, the bonds were, in pursuance of a previous arrangement to that effect, sent to Sandusky, and there sold to citizens of that place. In 1874, W. made a general assignment of all his property for the benefit of his creditors, and thereafter, and in 1876, died. Upon an application to compel a distribution of the funds in the hands of the assignee, the holders of the bonds, payment of which had been so guaranteed by W., claimed to be entitled to share therein. BeH, 1. That as the guaranty, though exe- cuted in this state, was to be delivered and be- come operative, and had its inception in Ohio, its construction and the liability of the parties thereto, were to be governed by the laws of that state. 2. That as a statute of that state provided that when one or more persons indebted upon a joint contract shall die, his estate shall be liable, as though the contract had been joint and several, the estate of W. was liable for the amount of the bonds so guaranteed by him. — Supreme Ot., (2d Dept.,) Dee., 1880. Richard- son V. Draper, 23 Hun 188. X. Actions foe Breach of Contbact. 55. The right of action, and -who may sue. Defendant and others signed the following instrument : " We, the undersigned, citizens of TJnionyille and vicinity, pledge our- selves to subscribe for and take stock in and for the construction pf the Lake Ontario Shore railroad to the amount set opposite our names respectively, on condition said road be located and built through or north of the village of Unionville, in Parma." In an action thereon — Held, that it was not a subscription to plain- tiff's capital stock ; that it was in no sense a party to the agreement, and could not maintain an action thereon. — Ct. of App., FA., 1880. Lake Ontario Shore R. R. Co. v. Cmtiss, 80 N. Y. 219. 56. It seems that an action by a party to the instrument could not be maintained in the ab- sence of evidence that the contract was entered into for his benefit, and not until after the con- dition stated therein had been performed ; also, that any recovery would be, not for the amount of the promised subscription, but only for the damages which such party had sustained. lb. 5*7. It appeared that plaintiff's road and property of every kind, with its rights and franchises, were sold under a mortgage, that a new company was organized, which became the owner thereof, and that the road was thereafter built by the new company ; plaintiff did not offer to furnish defendant with stock in the new road. Hdd, that these facts did not aid the plaintiff; that plaintiff, although not formally dissolved, had in fact ceased to exist for any practical purpose ; that its certificate of stock, if now issued, would not represent the road, or anything else of value, and so that defendant would receive no consideration for his subscrip- tion, if made, or for his money, if paid. Ih, 58. Plaintiff contracted to convey to H. certain premises for ?1350; $300 was paid down and the balance was agreed to be paid in annual installments. H. assigned his contract to defendants in payment of two notes, the latter agreeing to pay enough in addition t« make the purchase price $300, H., however, reserving the right to redeem. In an action brought to recover installments due and unpaid on the contract, H., as a witness for plaintiff, testified that defendants were to pay up the contract. Hdd, that the evidence failed to show an express agreement on the part of de- fendants to pay the balance due plaintiff; that the most that could be claimed was that defend- ants agreed to make advances for H., to be repaid when he redeemed; that there was, therefore, no assumption of the debt, so as to make it the debt of defendants, at least no promise intended for the benefit of plaintiff; and that, therefore, plaintiff was not entitled to recover. — Ct. of App., Nov., 1880. Roe ». Barker, 82 N. Y. 431 ; affirming 17 Hun 204. 50. After installments had become due, de- fendants requested plaintiff to give further time, which he did, in consideration of an oral promise to pay the debt. Hdd, that this did not authorize the reversal of the judgment, as no such cause of action was set forth in the complaint, and as the promise was void under the statute of frauds; and that, conceding it was supported by a sufficient consideration in the agreement for forbearance, it was not thereby made valid. lb. 60. Matters of defence. Failure of defendant to set up non-performance of a con- tract, as a defence does not preclude him from a counter-claim for damages. — Ct. of App., Jan., 1881. Taylor v. Mayor, &c., of New York, 83 N. Y. 625. 61. It seems that in an action against a third party, whose title depends upon a contract CONTRACTS, X.— CORPORATIONS. 63 claimed by plaintiff to have been rescinded, defendant cannot set up a watit of tender by plaintiff, to the other party to the contract, of a return of what plaintiff received. — Ct. ofApp., March, 1881. Town of Springport v. Teutonia Savings Bank, 84 N. Y. 403. 62. Evidence. Plaintiff contracted to build certain railroad bridges and trestle-work for defendant's firm, which had a contract with the railroad company for building the road. The bridges, etc., were to be built to the satis- faction of B., the superintendent of the road. In an action to recover for work, etc., in build- ing a bridge and trestle-work under the con- tract, in which the defence was that the work was not done according to contract — Seld, that testimony was competent on the part of plain- tiff to the effect that the bridge and trestle- work had been and were in use by the company, and that no objection thereto was ever made by defendants or by B.—Ct. of App., Feb., 1880. Comins v. Hetfield, 80 N. Y. 261. 63. Damages recoverable. Plaintiff and defendants McC. entered into a contract, by which the former agreed to convey to the latter seven lots, they giving back their bond and a mortgage on each lot for the purchase money. The vendees agreed to erect a dwell- ing upon each lot, plaintiff making to them certain advances as the work progressed, to be repaid out of the proceeds of mortgages upon the lots. After the papers were executed, and the work of building commenced, the vendees negotiated a loan of defendant G.^ secured by mortgages upon four of the lots, and an agree- ment was made between all the partie8,_to the effect, among other things, that a certain por- tion of the moneys loaned should be deposited in a trust company " as collateral security for the completion of the dwelling-houses,"_ and that said mortgages should have the priority over plaintiff's mortgages on said lots. The vendees failed to perform their agreement, and after the expiration of the time fixed for per- formance, abandoned the premises ; whereupon plaintiff went; on and completed the buildings. In an action to reach the trust funds — Sdd, that plaintiff's damages were the difference between tlie value of the premises as they were when abandoned by the vendees, and what their value would have been, had the buildings then been completed according to the contract ; and that he was entitled to have out of the trust fund the amount of the damages so estimated. —Ct. of App., Jan., 1881. Kidd v. McCormick, 83 N. Y. 391. 64. Plaintiff, before bringing this action, foreclosed his mortgages, bidding in the prem- ises and obtaining judgments for deficiencies. Hdd, that neither the taking possession and completing the buildings, nor the foreclosures, worked a rescission of the contract on the part of plaintiff; also, that a reservation of said contract in the foreclosure judgments was not necessary, and that plaintiff was entitled to re- cover for expenditures made after the foreclosure sales in completing the buildings. lb. For decisions respecting the various contracts by which title to or possession of Property is transferred, see Bailment ; Chattel Mobt- GAGEs; Deeds; Mobtgages; Sales; Vendor AND PtJECHASEE. As to the power of any particular officer to contract in his Official cha/racter, see Oepicers, and the titles of the various kinds of officers. As to Oontrousls with the state, see State, II. For the Agents power to bind the prineipai by contract, see Principal and Agent, III. As to Contracts by corporations, see Corpora- tions, IV.; Municipal Cobpoeations, II., III. As to when a court of equity will Enforce the performance of a contract, see Specipio Per- PORMANCE. In what cases equity will Gamed or Meform the contract, see Equity, II. As to contracts between Husband and wife, or between Wife and third person, see Husband AND Wipe, V., VII. For the effect upon a contract of the Infamy of the party to it, see Inpants. As to the contracting powers of Chwrdians, Personal representatives, and Trustees, see Exec- utors AND Administrators ; Guardian anb Ward; Trusts. For rules of Pleading and Evidenee, generally, see those titles. CONTRIBUTION. Between Sureties, see Principal and Sure- ty ; in Oemeral average, see Insurance, IV. CONTRIBUTIVE NEGLIGENCE. Neoligencb, II. ; Eailroad Companies, IV. CONVERSION. As to Eqwitahle conversion of land into person- alty, see Wills, V. Ajs to what constitutes a Tortious conversion of chattels, see Trover. CONVEYANCES. Deeds; Mortgages; Wills. CORPORATIONS. I. How Created ; Incorporation ; Or- ganization; Charters. n. Corporate Stock. UI. Eights and Liabilities op Stock- holders. 1. In general, 2. Subscriptions for stock. 3. Individual liability. rV. Corporate Powers. V. Corporate Liabilities. VI. Oppicers and Agents. VII. Dissolution, Kbceiveb, &o. VIII. Foreign Corporations. 64 CORPORATIONS, I., II. I. How Created ; Incorpobation ; Organi- zation; Charters. 1. Organization. Plaintiff alleged that in January, 1873, he assigned to defendant his interest in an invention, for which a patent had been applied for, in consideration of defendant's agreement to pay a, royalty upon all of the patented articles manufactured, that the patent was issued to defendant, and it has manufactured under it. Defendant alleged that it was not or- ganized as a corporation until after the making of the alleged agreement, and proved that a cer- tificate of incorporation was filed after that time. It appeared, however, that when the agreement was made, business was being done by the same parties as those now conducting defendant's business, and in the same corporate name, and that they contracted with plaintiff in the corpo- rate name ; that the patent was issued to defend- ant, after the alleged organization, and that for a time thereafter defendant paid to plaintiff the royalty agreed upon. Held, that it was imma- terial whether the organization proved was the first corporate organization or simply a reorgani- zation; that the corporation had, by availing itself of, and acting under, the agreement after such organization, adopted and ratified itaud was bound by its provisions. — Gt. of App., Sept, 1880. Bommer v. American Spiral, &c., Manuf. Co., 81 N. Y. 468. 2. Reorganization. A railroad was sold upon foreclosure of a mortgage subject to a cer- tain "plan and arrangement" of reorganiza- tion, provided for in the judgment, entitling the stockholders, on the payment of a specified sui, to exchange their stock for that of the new company, before the expiration of such time as might be lawfully limited by the parties to the " plan and arrangement." It did not appear that those parties ever fixed any time. JSeld, that, as the plan undertook to regulate the time, the statute of limitations did not apply, and that the new organization had no power to limit the time. — Supreme Ct., {Isi Dept.,) Feb., 1881. Vatable v. New York, &c., E. E. Co., 9 Abb. N. Cas. 271. II. Corporate Stock. 3. General nature of stock — stock certificates. The capital stock of a corpora- tion is to be distinguished from the certificates issued by it called "stock certificates," which are simply the written evidence of the stock- holder's right to participate in the surplus profits.— Superior Ot., [Sp. T.,) June. 1881. Wil- liams V. Western Union Teleg. Co., 9 Abb. N. Cas. 437 ; S. C, 61 How. Pr. 216. 4. The capital stock, i. ts., the corporate property, is not withdrawn or reduced by the issuing of stock certificates. lb. 5. Issuing. Capital stock can only be cre- ated by an agreement founded upon a good legal consideration, and when issued without any subscription made or consideration paid or agreed to be paid, has no foundation to rest upon ; it does not exist, and has not the char- acteristics of property.— Superior Ct., (Chamh.,) May, 1881. Hatch v. Western Union Teleg. Co., 9 Abb. N. Cas. 430. Compare Williams v. Same, Id. 437. 6. Accumulated earnings upon which no dividend has been declared, being already assets of the corporation, furnish no consideration for the issuing pf stock to be divided among the stockholders. lb. 7. The issuing of stock to the stockholders without any consideration, is forbidden by stat- ute, and is vUra vires and void, and incapable of ratification by the stockholders. lb. 8. Upon the division of surplus earnings each individual shareholder has a right to take his portion in money, and cannot be forced to take it in the form of additional capital. lb. Q. Disposal of additional stock on increase of capital. The oificers of a corporation act as trustees in disposing of its capital stock, and are bound to act not only as specifically directed by statute, but under the general obligations of trustees. — Superior Ot., [Ghamb,) March, 1881. Williams v. Western Union Teleg. Co., 9 Abb. N. Cas. 419. 10. Upon an increase of capital, the di- rectors, in disposing of the increased ptock, are to be deemed trustees for those holding shares of the original stock, and it is their duty so to dispose of them that as much value as possible shall be returned to the corporation for its busi- ness purposes. lb. 11. Transfers, and rights of trans- feree. The owner of certain preferred shares of stock in a mining company, after having sold the same and delivered the certificates thereof to one person, assigned to another all his right, title and interest in and to the interest due upon the shares of stock which he iad previ- ously owned. By the terms of the certificates the company agreed to pay interest upon them annually out of its net earnings, at the rate of seven per cent, per annum for each year, pro- vided so much had been earned in the year preceding. It did not appear that any separa- tion of this interest from the other funds of the company had ever taken place, or that any of the earnings had been in any form appropriated or assigned to the payment of this interest. Sdd, that the right to recover the interest was merely an incident to ^e shares themselves, and depended upon the title thereto, and that the assignee of the said interest could not sue to recover the same and compel the company to account therefor. — Supreme Gt., (ls< Dept.,) April, 1881. Manning v. Quicksilver Mining Co., 24 Hun 360. 12. Determining conflicting claims to stock. Under what circumstances an action is not maintainable at the instance of a corpora- tion to determine conflicting claims to its stock, see Buffalo Grape Sugar Co. v. Alberger, 22 Hun 349. 13. Dividends. Where preferred guaran- teed stock is issued by a railroad company, the holders, although they are not entitled to divi- dends when no profits are earned, yet they are first entitled to be paid the amount of dividends specified and guaranteed, including all arrears, before the holders of common stock are en- titled to anything. — Ct. of App., March, 1881. Boardman d. Lake Shore, &c., E'y Co., 84 N. Y. 157. 14. A shareholder in a corporation is not en- titled to any of the property or profits until a division has been made or a dividend de- clared, lb. 15. When a dividend is declared it belongs to the owners of the stock at the time, but until such declaration, the profits form part of the as- sets ; and an assignment by a stockholder of his CORPORATIONS, II., III. 65 stares carries with it his proportionate share of the assets, inchiding all undeclared dividends. lb. 16. While, as a general rule, the officers of a corporation are the sole judges as to the pro- priety of declaring dividends, and the courts will not interfere with a proper exercise of their discretion where the right to a dividend is clear and fixed by contract, and requires the directors to take action before the right can be asserted by an action at law, a court of equity will interpose to compel such action, and, when necessary, to I'estrain, by injunction, any action adverse to such right. lb. And see Williams i>. Western Union Teleg. Co., 9 Abb. N. Cas. 419. III. Eights and Liabilities of Stock- HOLDEBS. 1. In general. 17. Rights as towards the corpora- tion. A general understanding between the subscribers to stock as to' the purpose or object of the company, cannot limit the powers of the latter as embodied in the certificate of incor- 3)oration. — Supreme Ct., {Sp. T.,) Feb., 1881. Hatch V. Amer. Union Teleg. Co., 9 Abb. N. Cas. 223. 18. — as tO"ward.s each other. Where a stockholder receives from a corporation divi- dends, declared and admitted by it to be due to Jiim on shares of the corporate stock, an action is not maintainable against him in the first in- stance, at the suit of one claiming to be en- titled to share in the dividends, but whose rights had been ignored ^ by the corporation, to recover as for moneys had and received, the proportion of the dividends so received, which plaintiff would have been entitled to had his shares participated. — Ot. of App., Nov., 1880. Peckham v. Van Wagenen, 83 N. Y. 40 ; affirm- ing 45 Superior 328. 19. It seems that the remedy of one thus wrongfully excluded from the rights of a stock- holder is against the company. lb. 20. He cannot follow the assets of the com- pany in the hands of parties to whom it has paid them, until, at least, he has established his' rights as a creditor of the company and has ex- hausted his legal remedies against it. 1 b. 21. Stockholder's remedy against the corporation. Wliere a large majority of the stockholders favor the corporate action, the court will not interfere by injunction at the instance of a holder of a comparatively small number of shares, unless" in a clear case. — Sur preme Ct., {Sp. T.,) May, 1878. Benedict v. Western Union Teleg. Co., 9 Abb. IST. Cas. 214. 22. Plaintiff's complaint alleged in sub- stance that the railroad ajid franchises of the T., W. & W. E. E. Co., of which he was a stock- holder, were sold under a decree of foreclosure and were bid off by a committee of the holders of the bonds secured by the mortgage; that a portion of the stockholders disputed the validity of the sale, and a litigation arose, which resulted in an arrangement under which said stock- holders withdraw all opposition and were ac- corded by the purchasers of the road the right to take stock in a new company to be organ- ized, upon certain terms specified, among others, that the option so to do must be exercised within thirty days, otherwise all rights should be for- feited ; that in pursuance of this arrangement de- fendant, the W. E. Co., was organized and is ope- rating the road, and possesses the rights and property of the old company, and has issued stock under the agreement ; that plaintiff had no knowledge or notice of the agreement until after the expiration of the thirty days; that when notified he tendered performance on his part, and demanded his proportionate share of the new stock, which was refused. The other defendants were the purchasing committee who Tvere authorized to carry out the said agree- ment. Plaintiff asked damages for the refusal. Held, that a demurrer to the complaint was properly sustained ; that if the foreclosure sale was valid, all of plaintiff's legal rights were cut off; if invalid, his right to attack it was not af- fected or impaired by the agreement, unless he elected to come in and ratify it, in which case he was bound to adopt it as such and could not vary its terms.— Q. of App., Sep'., 1880. Thorn- ton V. Wabash E'y Co., 81 N. Y. 462. 23. It seems that if the property and fran- chises of the old company had become vested in the new corporation without the intervention of legal proceedings cutting off the rights of the old stockholders, there would have been a foun- dation for plaintiff.'s claim. lb. 24. — or its ofilcers. When a stockholder, upon its insolvency, has been compelled to con- tribute to the debts of the corporation, he may maintain an action on behalf of himself and others to recover from the directors the losses, resulting in such insolvency, which were caused by their negligence and misconduct, provided the corporation or its receiver refuses to bring such action. — Supreme Ol., (1st Dept.,) April, 1881. Nelson v. Burrows, 9 Abb. N. Cas. 280. 2. Subscriptions for Stock. 25. Validity of the contract. Part payment. Defendant subscribed for stock of plaintiff and gave his check for ten per cent, of the amount of the subscription. Before the check was presented for payment, defendant countermanded it. In an action to recover the amount of defendant's subscription — HeU, that no binding subscription was made, because of defendant's failure to make the cash payment of ten per cent, required by the statute before the subscription itself could be received by the commissioners ; and what was done was entirely ineffectual. — Supreme Ct., (Ist Dept,) July, 1881. Excelsior Grain Binding Co. v. Stayner, 61 How. Pr. 456 ; affirming 58 Id. 273. - 28. What may be taken in payment. In the absence of statutory restriction, a corpo- ration has power to receive payment for its stock otherwise than in money. — Saperior Ct., [Sp. T.,) June, 1881. Williams v. Western Union Teleg. Co., 9 Abb. N. Cas. 437. 2*7. "What -will discharge the lia- bility for subscriptions. Defendant, V. B., being the president and a director of the H. A. E. E. Co., as such president entered into a contract with C., by which the latter agreed o build and equip a portion of the road, for a certain sum in stock of the company, and for a certain sum in its bonds. Immediately after 66 CORPORATIONS, III. ward, and in accordance with a previous ar- rangement, the contract was assigned by C. to V. B., who, with others associated with him, performed the contract at an expense less than the par of the stock and bonds agreed to be paid therefor, which they received. In an action by plaintiff, among other things, to re- cover of V. B., as the amount unpaid upon the stock, a proportionate share of the difference between the par value of the stock so trans- i jrred and the cost of performance, it appeared that the contract was enterfed into and assign- ment made, in good faith, after full deliberation and consultation, with the knowledge and assent of 'all the directors and the stockholders of the company, as the only means to insure the con- struction of the road, and that the amount ex- pended exceeded the actual value of the stock and bonds delivered in payment. Held, that the stock 80 transferred was to be considered as fully paid-up stock, and that the action was not maintainable. — Gt. of Amp., Nov., 1880. Van Cott V. Van Brunt, 82 N. Y. 535. 28. "Wliat ■wrill not. When a subscrip- tion to the capital stock of a railroad company, made before its incorporation, is valid, and when a subscriber is not released by its failure to complete the roaid, or by its sale on fore- closure, see Buffalo, &c., Kailroad Co. v. Clark, 22 Hun 359. 29. Where, by the charter of a corporation, the right is reserved to the legislature to alter or repeal it, a subscriber to its capital stock is not discharged from his subscription by a sub- sequent amendment to the charter, but will be regarded as having consented to the change. — C*. of App., Jan., 1880. Union Hotel tio. v. Hersee, 79 N. Y. 454,; reversing 15 Hun 371. 30. Instances. By plaintiff's charter (Laws of 1871, oh. 432,) it was provided that the franchises Aereby granted should become null and void, unless it should begin the con- struction of a hotel within two years after the passage of the act ; it was also made " subiect to the liabilities and restrictions contained in certain provisions of the Revised Statutes," among others to the provision (1 Rev. Stat 600, § 8,) declaring that the charter of every corpora- tion thereafter " granted by the legislature shall be subject to alteration, suspension or repeal, in the discretion of the legislature." Defendant subscribed for fifty shares of the capital stock. Subsequently,,but before the expiration of the two years, the charter was amended (Laws of 1873, ch. 123,) by extending the time for begin- ning the construction of the hotel five years. The work of construction was not commenced within the two years, and, soon after, defendantgave no- tice to plaintiff that he withdrew his subscription. In an action .upon the subscription — Held, that the said provision of the Revised Statutes was to be considered as incorporated in the charter, and as part of defendant's contract ; and that the subscription was not defeated by the amend- ment, lb. 31. Defendant's subscription was made on the condition that "the sum of $200,000 be subscribed by the citizens of Buffalo." The requisite amount was subscribed; some of the subscriptions were in firm names written by one partner ; one was in the name of a corporation ; it appeared that this was made by authority of the directors of the corporation, and with the assent of all the stockholders. Upon these •subscriptions payments were made in compli- ance with calls made upon the subscribers. Seld, that the evidence established prima facie the validity of these subscriptions ; that^ in any event, the payment upon each was a ratification thereof. lb. 32. One of the subscribers had, at the time of his subscription, his domicile in Batavia, but boarded in Buffalo, was engaged in business and spent nearly all of his time (here. Held, that he was a citizen of Buffalo within the mean- ing of the subscription papers. lb. 33. Another subscription was in the name of " B. & S. M. Spencer." B. Spencer, who signed, was a resident of Buffalo. PeM, that the sub- scription was within the terms of the contract ; and this, although there was no such firm, or B. signed without authority, as in either event he would be liable as upon his individual sub- scription. 1 b. 34. Defendant signed a printed paper whereby he agreed to take one share of the capital stock of a railroad company thereafter to be organized, the route of which was de- scribed in the paper. Other printed papers, fax similes of the one signed by defendant, were signed by other persons, all of which papers were thereafter delivered to the persons pro- posed in them as directors, with the intention that they should be used in organizing the com- pany. Thereafter the persons having the said papers in charge cut from all of them, except one, the signatures attached thereto, pasted such signatures upon the remaining paper, and flled it, with the requisite afSdavit annexed thereto, in the office of the secretary of state, for the purpose of organizing the corporation; In an action brought by the corporation to re- cover the unpaid balance of defendant's sub- scription — Held, 1. That as the defendant's liability was in no way changed or affected by the mutilation of the paper signed by him, and as the paper was not mutilated by the corporation or by any person for whose acts it was responsible (the directors in what they did having acted as agents of the subscribers,) the defendant was not released from his liability upon the agree- ment. 2. That the defendant was estopped from claiming that the corporation was not duly or- ganized and liad no existence, and that, for that reason, the action could not be maintained. — Supreme Ct., {ith Dept.,) April, 1881. Sodps Bay, &c., R. R. Co. v. Hamlin, 24 Hun 390. 3. Individual Uahiliiy, 35. Liability of former holder where transfer is not made on books. In this action, brought by a receiver of the Bankers and Brokers' Association, incorporated under Laws of 1867, ch. 474, ? 2, to recover a portion of the amount unpaid upon the shares of stock, against one in whose name certain shares of stock stood on the books of the company, it ap- peared that the defendant had prior thereto sold and delivered the certificate of stock to another person, who had thereafter drawn the dividends upon the stock, but had not had it transferred to his name on the books of the association. HM, that the liability of the defendant con- tinued until the transfer was made on the books of the company, and that the plaintiff was en- CORPOKATIONS, III., IV., V., VI. 67 "titled to recover. Supreme Ct., {1st Dept.,) Dec, 1880. Cutting v. Damerel, 23 Hun 339. 36. Rules of evidence. In an action against a stockholder of a railroad corporation by a creditor thereof, under the provision of the general railroad act making each stock- holder liable for the debts of the corporation to the amount unpaid on his stocky the record of a judgment against the corporation is compe- tent evidence of plaintiff's status as a creditor -and of the amount due him. — Cl. ofApp., Jan., 1881. Stephens v. Fox, 83 N. Y. 313 ; affirming 17 Hun 435. 37. The effect of said provision is not to im- ipose any penalty or original liability upon the stockholder, but simply- to confer upon the -creditor of the corporation a right to pursue, for the satisfaction of his claim, the indebted- ness of the stockholder to the corporation for his unpaid subscription. The creditor claims through the corporation, and if he shows that he is a creditor, by evidence binding and coa- cluaive against it, the evidence is competent against the stockholder. lb. 38. In an action to charge a holder of stock issued for property purchased by the company, on the ground of a fraudulent over-valuation thereof, when evidence of an offer for part of it, made to and refused by the company, is ad- missible, see Thurber v. Thompson, 21 Hun 472. IV. COBPOBATE POWEBS. 39. Power to contract. Unless re- strained by law, every corporation has the in- cidental power to make any contract neces^ry to advance the objects for which it was created. — Ct. o/App., Feb., 1880. Legrand v. Manhat- tan Mercantile Assoc, 80 N. Y. 638. 40. Construction of corporate con- tracts. Any contract which a corporation may make, abridging its powers, should be con- strued, if possible, in accordance with the pub- lic interests. — Supreme Ct., (AU>. Sp. T..) June, 1880. People v. Long Island E. E. Co., 9 Abb. N. Cas. 181. 41. Power to acquire property. _ The purchase by a corporation of property paid for with capital issued for that purpose, will not be set aside upon a stockholder's application, on the ground of the inadequacy of tlie value of the property purcliased, unless it is so great as to authorize a finding of fraud. — Superior Ct., {Sp. T.,) June, 1881. Williams v. Western Union Teleg. Co., 9 Abb. N. Cas. 437 ; S. C, 61 How. Pr. 216. 42. Powers respecting the capital stock. The capital stock of a corporation men- tioned in its charter is not per se a limi- tation of the amount of property, either real or personal, which it may own; It may divide its profits among the stockholders at such times -and to such amounts as the directors may deem expedient. Instead of dividing the profits, they . may, in their discretion, permit the surplus of property to accumulate beyond their original capital, as the interest of the corporation shall appear to dictate ; and the corporation has, in the manner provided by law, a right to increase the number of certificates which represent the interest its stockholders have in its corporate fund. Such transaction is neither in law nor in fact a watering of the stock of a corporation. lb. _ 43. The doctrine of ultra vires. Pub- lic policy demands that corporations should be kept strictly within their cliartered limits, and every contract which exceeds those limits, is illegal and void. — Superior Ct., {Chamb.,) May, 1881. Hatch v. Western Union Teleg. Co., 9 Abb. N. Cas. 430._ 44. An objection that an act is ultra vires, rests upon an absence of statutory power, and not upon a wrong use of it. Williams v. Western Union Teleg. Co., sapra. V. CoEPOKATE Liabilities. 45. TTpon contracts by ofBoers and agents. One who deals with the officers or agents of a corporation is bound to know their powers and the extent of their authority ; the corporation is only bound by their acts and con- tracts which are within the scope of their au- thority. — Ct. of App., Jan., 1S81. Alexanders. Cauldwell, 83 N. Y. 480. 46. It cannot be presumed that the agent of a corporation had authority to transact business which the corporation itself was not by its char- ter authorized to engage in. lb. 47. For wrongful acts of officers and agents. A corporation is liable for its wrong- ful acts and omissions, and for the acts of its agents while engaged in the business of their agency, to the same extent and under the same circumstances as natural persons. — Ct. of App., Feb., 1880. Fishkill Savings Inst. Nat. v. Bank ofFishkill, 80 N. Y. 162. 48. One B. was in March, 1874, cashier of defendant, the National Bank of Fishkill, and its managing officer and general agent ; he was also plaintiff's treasurer. He took certain bonds belonging to plaintiff which, in the name and as cashier and managing officer of said defend- ant, he pledged with various parties as secu- rities for loans. In January, 1876, B. re- possessed himself of the bonds, and returned them to plaintiff, but on the thirty-first of that month again took them, and in the same man- ner pledged them with W. and McM., a bank- ing firm, as security for advances made and to be made to defendant; the bonds were subse- qpently sold pursuant to the conditions of the pledge and the proceeds credited to said defend- ant. In an action for conversion of the bonds — Setd, that said defendant was liable ; that igno- rance on the part of its directors was not a de- fence, as, if ignorant, it was because they omitted the performance of official duty ; that although B. had no authority to take the bonds, when he pledged them he represented the bank, and his knowledge was notice to it. lb. 49. When affected by knowledge of officer. Knowledge acquired by a director, not as an officer of the corporation or while en- gaged in its business, but in an individual ca- pacity, will not operate to its prejudice. — Ct. of App., Oct., 1880. Atlantic State Bank v. Savery, 82 N. Y. 291 ; affirming 18 Hun 36. 50. Liabilities of members of quasi corporations. The duties and liabilities of members of quasi corporations, such as school trustees and other similar- bodies, discussed. Donovan v. McAlpin, 46 Superior 111. VI. OrFioEES akd Agents. 51. The president. When the president 68 CORPORATIONS, VI., VII. of a railroad corporation, who has taken an as- signment of and has performed a contract for building the road, receiving stock in payment, is not liable to an action at the suit of creditors of the road, see Van Cott v. Van Brunt, 82 K. Y. 535. 52. The director of a corporation occupies a fiduciary position, and so is^within the rule disenabling one entrusted with powers to be exercised for the benefit of others, from dealing in his own behalf in respect to matters invol- ving the trust. — Ct. of App., March, 1881. Dun- comb V. New York, &c., E. E. Co., 84 N. Y. 190 ; reversing 22 Hun 133. 53. The right of the corporation, or those claiming through it, to avoid any such dealings does not depend upon the question whether the director was acting fraudulently or in good faith. lb. 54. But an act of a director, claimed to be in hostility to this rule, in the absence of bad faith on his part, cannot be avoided without a restora- tion to him of what the corporation received. lb. 55. Where a director receives the property of the corporation as collateral security for a debt honestly due him, or a liability justly in- curred, the rule has no application, as the pay- ment of ihe debt or the discharge of the obliga- tion is an essential prerequisite of an avoidance of the transaction ; and this is so whether the pledge be taken for a present or a precedent debt, lb. 56. The director of a railroad corporation cannot purchase its bonds below par except on peril of avoidance by the courts upon ap- plication of the corporation. But as he may be the lawful holder of such bonds, knowledge upon the part of a purchaser from him, for value and in good faith, of bonds so bought, that he is a director, does not put such purchaser upon in- quiry, or charge him with constructive notice of the defect in the title. lb. 57. Where, however, bonds are taken from it director in pledge for a precedent debt, the pledgee takes no better title than his pledgor, and theiy are subject in his hands to any defect in the title of the latter. lb. 58. Suspension and removal. Com- pelling officers to account. Proceedings by a director against the other ofBcers of the corporation for an accounting, will not prevent an action by the attorney-general for a suspen- sion or removal of the ofScers, and for an ac- counting against the director who brought the first action, and others who were not included in the accounting asked for therein. — Supreme Ct., {Brooklyn Sp. T.,) Dee., 1880. Keeler v. Brook- lyn Elevated E. E., 9 Abb. N. Cas. 166. VII. Dl^OLTJTION, EbCEIVEE, &0. 50. Grounds of forfeiture, or disso- lution. A corporation cannot be said to have committed an act of bankruptcy or insolvency, or to have neglected or refused to pay and dis- charge its obligations, because its demand notes remain outstanding and unpaid, until payment has been demanded.— Q:. of App., April, 1880. Denike v. New York, &c., Lime, &c., Co., 80 N. Y. 599, 607. 60. Power to enforce forfeiture. A forfeiture of the franchises of a corporation, unless there be special provision by statute, can only be enforced by the sovereign ^ower to» which the corporation owes its life, in some proceeding instituted in behalf of the sove- reignty, lb. 605. 61. The lien of the creditors of an insolvent corporation upon its assets in the hands of its- stockholders, or of other persons, is a purely equitable one, and can only be enforced in ,au. equitable proceeding. — Siwreme Ct., (4(A Dept.,). June, 1880. McLean v. Eastman, 21 Hun 312. 62. "Who may sue for dissolution.. A stockholder has no right, by the inherent powers of a court of equity, to bring suit to- wind up the business of a corporation. — Supreme St., {Ghamb.,} Jan., 1881. Bliven v. Peru Steel,. &c., Co., 60 How. Pr. 280 ; S. C, 9 Abb. N. Cas. 205. 63. If a stockholder may proceed under 2- Eev. Stat. 463, § 38, which provides for disso- lution when the corporation has been insolvent for a year, or has neglected or refused for a. year the payment of its debts, or has suspended its business for a year, the plaintiff has not made out such a case. It is only a judgment creditor who can apply for sequestration under 2 Eev. Stat, 463, § 36. A creditor whose claim has not been prosecuted to judgment cannot so proceed. lb. 64. A consent or acquiescence by the trus- tees of a corporation to a judgment not author- ized by the statute, cannot be substituted for the methods so prescribed. lb. 65. A creditor at large of a corporation< cannot maintain an action to have it dissolved, on the ground of insolvency, and to compel its- trustees, directors and officers to make good the losses which it has sustained by. reason of their negligence and mismanagement. — Supreme Gt., (id Dept.,) Dec., 1880. Cole v. Knickerbocker Life Ins. Co., 23 Hun 255. 66. Duty of attorney-general to sue. Under Code of Civ. Pro., ?§ 1781, 1782,. the attorney-general is empowered to bring an action against the trustees and other officers of a corporation for misconduct, and under J 1808, he must bring the action, " if, in his opinion,, the public interests require that an action should be breught." By § 1810 the court has power to appoint a receiver in such an action. There- fore, where the president of a railroad company made a contract with himself for the cou- struction of a railway; obtained all the securi- ties, stock and bonds under the pretence of paying the nominal contractor; and as chief engineer, made to himself as contractor, certifi- cates of work done, and then as president paid himself many hundred thousand dollars in ad- vance of what the nominal contractor was en- titled to receive under the contract for con- struction — Hdd, that ample cause was shown for the appointment of a receiver, and that the command of the statute to the attoruey-general that he "must bring an action," became impera- tive.— jSityreme Ct., ( Ulster Sp. T.,) Nov., 1880. People V. Bruff, 60 How. Pr. 1, 5 ; S. C, 9 Abb.. N. Cas. 153. 67. Effect of dissolution. A lease to a corporation is not teiminated by its dissolu- tion, and its covenant to pay rent does not thereupon cease to be obligatory. Its assets, upon its dissolution, become a fund for thfr payment of its debts, including those to mature as well as accrued indebtedness, and all opea and subsisting engagements entered into by the CORPORATIONS, VIT., YIIl. 69 corporation. — Ct. of App., Oct., 1880. People V. Nat. Trust Co. of New York, 82 N. Y. 283. 68. A receiver of the dissolved corporation is authorized to retain out of its assets sufS- cient to cancel and discharge such open and subsisting engagements. 2 Rev. Stat. 470, ^ 74, et seq. Until, therefore, the lessor has, by some act on his part, released or discharged the covenant to pay rent, he is entitled to pay- ment thereof, as it accrues, from the receiver. lb. 69. The defendant leased certain premises for five years from May 1st, 1876. In Decem- ber, 1877, B. was, by order of the Supreme Court, on application of stockholders, appointed receiver of defendant ; he occupied the premi- ses until February 1st, 1879, when he removed therefrom and abandoned possession; he paid rent up to that time. In April, 1879, by judg- ment in this action, the corporation was dis- solved. B. was continued as receiver, with the powers and duties conferred and imposed by statute. On petition of lessors that said receiver be required to pay the rent which accrued May 1st, 1879, it appeared that he had paid all ad- mitted debts, and had deposited a sum sufficient to pay all disputed claims, including the amount of the rent accrued and to accrue on the petitioner's lease ; also, that after the pay- ment of all debts, there was a large surplus to be distributed among stockholders. Hdd, that the petitioners were entitled to the relief sought ; and that an order denying the prayer of the petition was erroneous. lb. 70. Receiver's right to sue. Where, after the return, unsatisfied, of an execution is- sued upon a judgment recovered against a cor- poration, the judgment creditor commences an action against it, in equity, for the appointment of a receiver, and procures therein a final judg- ment appointing a receiver, such receiver may, under Laws of 1860, ch. 403, commence sepa- rate actions against each of the stockholders thereof to recover any sum remaining due upon his shares of stock, and he is not bound to bring one action and make all the creditors and stockholders parties thereto. — Supreme Ct., {1st JDept.,) Nmi., 1880. Van Wagenen v. Clark, 22 Hun 497. 71. Reference of controversies with receiver. The court has power to order a compulsory reference of any controversy be- tween the receiver of an insolvent corporation and a debtor, in respect to the debt. (2 Rev. Stat. 469, U 68, 73; Id. 45, H 19, 20, 21.) The jurisdiction of the court to make the order does not depend upon the nature of the defence to the claim. Such an order is therefore proper, although fraud is alleged. The fact that the receiver has commenced an action at law to recover the debt, does not conclude him from afterward applying for a reference. — Ct. of App., June, 1880. Matter of Crosby v. Day, 81 N. Y. 242. VIII. FOKEIGN COBPOBATIONS. 72. Individual liability of stock- holders. To enforce the liability of a stock- holder in a foreign corporation organized under an act providing that judgment and execution must first be had against the company, such judgment must be obtained and execution issued in the state where the corporation was created. — Supreme Ct., {1st Dept.,) Feb., 1881 Viele V. Wells, 9 Abb. N. Case. 277. 73. Under a foreign act of incorporation, providing that the individual liability of the incorporators should be determined by liquida- tors appointed by the company in case of wind- ing up, and enforced by a specified foreign tri- bunal, such liquidators may sue in the courts of this sta,te upon the order or decree of the foreign iribunal, as upon a judgment. — Supreme Ct., {Ist Dept.,) April, 1881. Anderson v. Had- don, 9 Abb. N. Cas. 289. 74. Suits by foreign corporations. Two corporations organized under the laws of Great Britain entereainto an agreement, which provided, in case of difference, for arbitrators to be appointed and to act in this state, having the powers given to arbitrators under the English common law procedure, their award to be made a rule of the Queen's Bench. In an action brought by one of said corporations against the other, and arbitrators appointed under the agreement, to restrain the prosecution of the arbitration, the Special Term denied plaintiff's motion for a preliminary injunction, on the ground as stated in the order " that the court has no jurisdiction in this action." Held, error ; as the plaintiff, although a foreign cor- poration, could invoke the jurisdiction of the courts, and the individual defendants were res- idents of the state. — Ct. of App., Feb., 1881. Direct U. S. Cable Co. v. Dominion Teleg. Co., 84 N". Y. 153 ; reoerdng 22 Hun 568. 75. — against them. A foreign corpora- tion sued in this state cannot avail itself of the statute of limitations ; and this, although it has, for the time specified in the statute, before the commencement of the action, continuously operated a railroad in this state, and has prop- erty and officers therein. — Ot. of App., March, 1881. Boardman v. Lake Shore, &c., R'y Co., 84 N. Y. 157. 76. Service of process on, -within the state. In this action brought by the plaintiff against the defendant, a foreign cor- poration, to recover for goods sold and delivered to it, the summons was served upon the defend- ant's president in the city of New York, while he was passing through the state, with his family, on his way to a watering-place in an- other state. BeW, that this was a good service of the summons, under section 1780 of the Code of Civil Procedure, although the president was not in the state upon any business of the cor- poration or in any official capacity .r— /Supreme a., {1st Dmt.,) March, 1881. Pope v. Terre Haute Car, &c., Co., 24 Hun 238 ; S. C, 60 How. Pr. 419. See, also, Ervin v. Oregon Steam Nav. Co., 22 Hun 598. 77. ^■■without the state. An attach- ment is not necessary to confer jurisdiction upon the court to grant an order for personal service, without the state, upon a foreign corporation. — Supreme Ct., {1st Dept. Sp. T.,) June, 1881. Wood V. St. Louis Bolt and iron Co., 1 Civ. Pro. 220. 78. Effect of liqidation in foreign state. The plainiff, a national bank organized and having a place of business in New Orleans, . purchased, for value, of defendant, the M. & P. ' Bank, a Louisiana corporation, a draft drawn on bankers in the city of New York for |10,000, payable to plaintiff's order ; the draft was duly presented to the payees at New York, and pay- 70 CORPORATIONS, VIIL-COSTS, I. ment refused ; it was duly protested and notice given to the drawer. An action was thereupon commenced in the Supreme Court and an at- tachment issued, whion was served on said bankers, who had funds of the M. & T. Bank in their hands. Hdd, that under and within the meaning of the provision of the Code of Civ. Pro., § 427, providing that an action against a foreign corporation may be brought in the Supreme Court by a plaintiff not a resident of this state, " where the cause of action shall have arisen in this state," plaintiff was to be regarded as a non-resident ; that the cause of ac- tion arose in this state ; and that, therefore, the court had jurisdiction of the action. — Ct. of App., March, 1881. Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367; affirming 21 Hun 166. 79. After the delivery of the draft to jjlaintiff, the M. & T. Bank was placed, in liquidation under the laws of Louisiana, and commissioners were appointed to take possession of and administer its assets; they were made defendants, and claimed title to the attached property. Hdd, that neither the law nor the adjudication under which said commissioners were appointed could have any operation here to defeat or affect the lien of plaintiff's attachment. lb. For decisions relating to Partioidar corporor tions and Glasses of corporations, see Bakks and Banking ; Instibanoe, VI. ; Joint Stock Companies ; MANUFACTtTBiNG Companies ; Municipal Cobpoeations ; New Yoek City ; Plank Egad Companies; Railroad Com- panies ; RELiaious Societies ; Societies and Associations; Telegbaph Companies; Turnpike Companies. CORROBORATION. Of Witnesses, see Witnesses, III. COSTS. I. In Oeiginal Civil Suits. II. On Appeal oe Eeeob. III. Security foe Costs. IV. Allowance in Addition to Costs. V. Taxation and Collection. L In Obiginal Civil Suits. 1. Discretionary powers of the court. In an action brought by a judgment creditor to set aside, as fraudulent, a conveyance of land made by the debtor, the costs are in the discretion of the court, — Supreme Ct., (3d Dept.,) Nov., 1880. Black v. O'Brien, 23 Hun 82. 2. The rule that, in equitable actions, costs ore in the discretion of the court, was not altered or affected by the adoption of the Code of Civil Procedure. lb. 3. Costs in suits in forma pauperis. Leave to sue as a poor person, under the code, does not deprive the court of power to impose ' costs against such person as a condition upon which a judgment by default will be opened.— Marine Ct., {Sp. T.,) June, 1881. Elwin v. Eouth, 1 Civ. Pro. 131. 4. Plaintiff's costs on recovery of less tlian $S0. To entitle a plaintiff, who recovers less than $50, in an action brought in a County Court, to costs, on the ground that a jus- tice's court had not jurisdiction over the action, because it involved accounts exceeding in amount $400, he must prove not only that the sum of the accounts (flaimed exceeded f 400, but that the sum of the accounts actually proved upon the trial was in excess thereof. — Supreme Ct., (2d Dept.,) Mdy, 1880. Tompkins v. Greene, 21 Hun 257. 5. — -where question of title to land arises. In an action of trespass upon lands the complaint alleged title and possession in plaintiff, both of which allegations were specifically put in issue by the answer. Plaintiff claimed dam- ages for injuries to the freehold by the deposit of earth aiid rubbish thereon, as well as for the entry. Plaintiff recovered less than $50. EM, that as to entitle plaintiff to recover for the in- jury to the freehold it was necessary_ to allege and prove his title, the question of title arose upon the pleadings, and that consequently a certificate that it arose on trial was unnecessary to entitle plaintiff to costs.— C*. of App., June, 1880. Kelly v. New York, &c., K. B. Co., 81 N. Y. 233. 6. Costs -where there are several defendants who appear separately. Where, in an action brought against several de- fendants, each appears by a separate attorney and interposes a sepai-ate defence, and_ all suc- ceed in their defences, each of them is, under section 305 of the code, entitled to a separate bill of costs, unless the severance be made in bad faith and for the purpose of increasing the costs.— Supreme Ct., {3d Dept.,) Sept., 1880. Williams v. Cassady, 22 Hun 180; S. 0^59 How. Pr. 490. ' S. P., Eoyce v. Jones, 23 Hun 452. What facts will show that the severance of the action was in bad faith, so that but one bill of costs should be allowed to the defendants, see Williams v. Cassady, swpra. 7. Where an application is made by defend- ants who have successfully interposed separate defences, to have separate bills of costs taxed, under section 305 of the code, the clerk has no power to refuse to allow them so to do, on the ground that the separate defences were unneces- sarily and coUusively interposed. The remedy of the party aggrieved is to apply to the court by a motion, for the relief sought. Ih. 8. As to the right of several defendants an- swering separately to tax separate bills of costs, and the effect of an error in the rennUlii'Uir from the Court of Appeals in using the word " re- spondent" in the award of costs instead of "re- spondents," in such a case, see Sheridan v. Andrews, 80 N. Y. 648. 0. Costs on demurrer. Costs may be allowed on the decision of a demurrer, though an issue of fact is left to be determined upon a COSTS, I., n. 71 trial. — Supreme Ci., (Herkimer Sp. T.,) Jan^ 1881. Adams v. Ward, 60 How. Pr. 288. 10. For drawing the demurrer, serving it and noticing the argument, plaintifi" is entitled to the costs before and after notice of trial, as well as 520 for a trial of an issue of law. lb. 11. But where the case is one requiring no application to the court for judgment upon the complaint if no answer had been served, plain- tifFis only entitled to $1.5 for costs before notice of trial. lb. 12. When each party is entitled to costs. Where the complaint sets up several distinct causes of action, on which defendant joins separate and distinct issues, and plaintiff succeeds as to one cause of action and defend- ant as to another, each party is entitled to a bUl of costs, and defendant is entitled to have his judgment set off against plaintiff's. — Oity Ct. of Brooklyn, {Sp. T.,) Jan., 1881. Hudson v. Gut- tenberg, 9 Abb. N. Cas. 415. 13. Costs of ex parte motion. Costs cannot be allowed upon the granting of an ex parte order requiring the defendant to file his answer. — Supreme Ot., (1st Dept.,) July, 1880. Edlefeon v. Duryee, 21 Hun 607. 14. Cqists on severance of action. As to the right of the plaintiff to have separate bills of costs taxed on severance of the action, and his right to have an extra allowance against each defendant (Code of Civ. Pro., | 3231,) see Abbott v. Johnstown, &c.. Horse E. Co., 24 Hun 135. II. On Appeal ob Ekeor. 15 In general. Cosfe, as used in the judg- ment of the Court of Appeals when ordering ludgment absolute for plaintiff) carries to the plaintiff the general costs of the action from the beginning to the end, except such as, subsequent to the decision of the Court of Appeals, are specially adjudged to the defendant. — Superior Ct., Aug., 1880. Bust v. Hauselt, 46 Superior 38. 16. In this case the costs which were speci- ally adjudged to the defendant (which were less than the general costs in the action which were awarded plaintiff), were offiet against the gen- eral costs, and judgment ordered for the plain- tiff for the excess. lb. 17. When the party finally succeeding is entitled to the costs of an unsuccessful appeal taken by him, see Donovan v. Vandemark, 22 Hun 307'. 18. As to the right of the Special Term to make any allowance of costs on the appeal to the General Term, see Matter of N. Y. Prot. Epis. Pub. School, 24 Hun 367. 19. On affirmance. On an appeal to the Supreme Court from the decree of a surrogate removing an executor and guardian, it is proper that infant respondents should appear- by a different attorney from the one who appears for adults, and tax separate bill of costs, on affirm- ance.— /Supreme Ot., (Troy Sp. T.,) March, 1880. Savage v. Gould, 60 How. Pr. 255. 20. Where, in an equity action, the defend- ants answered separately and a judgment in their favor was affirmed in this court with costs " to the respondents " — Seld, that this author- ized but one bill of costs. — Ct. of App., March, 3881. Van Gelder v. Van Gelder, 84 N. Y. 658. 21. On reversal. Upon an appeal from an order of a General Term reversing, with $10 costs and disbursements, an x)rder of the Special Term vacating an assessment, the Court of Appeals reversed the order of the General Term, with costs. Upon the filing of the re- mittitur, an order was made at Special Term directing that the petitioners recover their costs of the appeal taken from the Special to the General Term. Held, that the petitioner was only entitled to recover for the costs of the ap- peal to the General Term the sum of $10 and his disbursements. — Supreme Ct., (1st Dept.,) April, 1881. Matter of N. Y. Prot. Epis. Pub. School, 24 Hun 367. 22. On reversal with "costs to abide the event." Where an order is made by this court on appeal from a judgment, re- versing the judgment with costs to abide the event, and without othei: limitation, the re- spondent, if finally successful in the action, is entitled to tax the costs of the appeal. — d. of App., March, 1881. First Nat. Bank of Mead- ville V. Fourth Nat. Bank of New York, 84 N. Y. 469 ; S. C, 60 How. Pr. 436 ; reversing 22 Hun 563. 23. Where, on appeal by the defendants to the General Term, the judgment recovered by the plaintiff was reversed and a new trial granted, the order of reversal reading, "that a new trial be and the same is hereby directed to be had herein, costs of this appeal to abide the event" — Held, that such direction as to costs meant that the costs of appeal should be taxed in favor of the party ultimately successful. — Supreme Ct., {1st JDept. Sp. T.,) Oct., 1881. Comly V. Mayor, &c., of New York, 1 Civ. Pro. 306. 24. When a judgment recoyered by the plaintiff is affirmed at the General Term, but reversed by the Court of Appeals (by which latter court a re-argument is ordered at General Term)," with costs of the appeal to this court [the Court of Appeals] to abide the event of the ac- tion," and thereafter the judgment is, upon a re- argument had at the General Term, again af- firmed, the plaintiff cannot include in his bill of costs, the costs of the first appeal to the General Term. — Sapreme Ct., (2d I)q>t.,) Feb., 1881. Bigler v. Pinkney, 24 Hun 224. 25. On appeal from courts not of record. On appeal from a judgment of a Dis- trict Court, the appellant on reversal, is entitled to $30 costs, besiues costs of the court below. — Com. Pleas, (Sp. T.,) May, 1881. Clark v. Car- roll, 61 How. Pr. 47. 26. Code of Civ. Pro., U 3060, 3067, providing for costs on appeal from judgments of justices of the peace, apply to appeals from the District Courts. lb. 27. Where the defendant carried an appeal from the judgment of a justice's court to the General Term of the Supreme Court, and the judgment was there affirmed, the entry of the decision being simply "judgment affirmed," without any direction as to costs — Held, that the plaintiff was not entitled, of course, to costs upon appeal, and that the costs, being in the discretion of the court, and not having been awarded to the plaintiff, they could not be taxed.— Supreme Ct, (Monroe Sp. T.,) March, 1881. Combs v. Combs, 1 Civ. Pro. 298. 28. Code of Civ. Pro., ? 3228, should be con- strued as though subdivision 13 of section 3447 72 COSTS, II, III, IV. was incorporated therein ; and the costs allowed by section 3228 apply only to actions in certain of the courts of record. lb. 29. Section 3238 regulates the recovery of costs on appeal from a final judgment, and sub- division 1 prescribes the only cases, in which costs upon such appeal are a matter of right, and those cases are the actions specified in sec- tion 3228. As section 3228 has reference to actions in certain courts of record only ; and, as by subdivision 2 of section 3238, in every other case upon appeal from a final judgment, the costs are in the discretion of the court, it fol- lows that on an appeal from a justice's judg- ment to the Gfflieral Term of the Supreme Court, the costs are in the discretion of the court, and cannot be taxed unless awarded. lb. III. Security fob Costs. 30. Interpreting the statute. The Code of Civil Procedure is not applicable to an order requiring a non-resident to file security for costs, made before iis passage. Wiley v. Arnoux, 46 Superior 575. SI. The distinction between sections 3268 and 3271 is, that under the former section the defendant may require security for costs as a matter of absolute right, and that under the latter section it rests in the discretion of the court. This absolute right to require security may be lots by laches. — Gommon Fleas, (Sp. T.,) Feb., 1881. Healy v. Twenty-third Street E'y Co., 1 Civ. Pro. 15. 32. In ■what cases security may be required. A plaintiff suing executors will, under Code of Civ. Pro., J 3271, be re4uired to give security for costs where it is made to ap- pear by aflSdavit that he is pecuniarily irrespon- sible, although the action is codcededly brought in good faith. — Supreme Ot., {Sp. T.,) Feb., 1881. Murphy v. Travers, 60 How. Pr. 301. 33. A plaintiff suing as a trustee of an ex- press trust wiU be required to file security for costs when one of the beneficiaries is a non- resident of the state, and the other is an infant whose guardian ad litem has not filed such se- curity. — Supreme Ct., (4(A Dept. Sp. T.,) March, 1881. Fish V. Wing, 1 Civ. Pro. 231. 34. The former rule under Code of Pro., § 317, requiring proof of bad management or bad faith before such trustee will be required to file security, has not been retained in the present revision. The defendant, in such caise, ought not to be deprived of the right to require se- curity, by an assignment to a beggar, lb. 35. Who is deemed a non-resident, so as to be required to file security for costs, see Norton V. Bennett, 22 Hun 604. 36. When it cannot be. A guardian ad litem, is responsible for costs under the Code of Civil Procedure, but he is not required to file security therefor. — Superior Ot., June, 18i0. Steinberg v. Manhattan R'y Co., 46 Su- perior 216. 37. When a plaintiff, pending an appeal taken by tiie defendant from a judgment re- covered against him, removes from the state, he cannot, while the judgment stands unreversed, be compelled to file security for costs. — Supreme a., (ith Dept,) April, 1881. Flint t/. Van Deusen, 24 Hun 440. 38. In an action, brought since September 1st, 18,50, in the Superior Court of the City of New York, defendant cannot demand security for costs iipon the ground of plaintiff's non-residence, when the latter resides in this slate. — Superior Ct., Nov., 1880. Lewis v. Farrell, 46 Superior 358. S. P., Wiley v. Alrnoux, 60 How. Pr. 137. 39. When defendant's laches in making the motion is ground for its denial, see Lewis «. Farrell, supra. 40. Where it appeared that the plaintiff of record, a resident, was prosecuting an action for the benefit of a non-resident, on a judgment recovered against the defendant in the State of Illinois, and which had been assigned to the plaintiff of record by an assignment absolute on its face — Held, that the plaintiff of record could not be compelled to tile security for costs. — Supreme Ct., {\st Dept.,) Jan., 1881. Horton v. Shepard, I'Civ. Pro* 26. 41. That the plaintiff of record is not the real party in interest, is an issue to be raised by the pleadings, and disposed of at the trial. lb. 42. The defendant moved to substitute, as plaintiff in the action, the real party in in- terest. Held, not to be the proper subject of a motion. lb. 43. Suflaoiency of the bond. While an instrument, not containing any penalty, can- not be regarded as complying with the statute providing for the giving of a Ijond, as security for costs, yet a party may waive a strict coju- pliauce with the statute and accept and enforce a promise in an entirely different form. — Su- preme Ct., {Orleans dr.,) Oct., 1880. Warners. Koss, 9 Abb. N. Cas. 385. 44. Liability of surety. To render one liable as surety on a bond given as security fur costs, it is sufiicient if it appears therefrom that he intended to undertake absolutely and with- out condition to pay the costs. On such prom- ise he is liable for the whole amount of the costs, although it exceeds $250, the sura for which a statutory bond could be required. lb. 45. "Waiver of right to proceed upon the bond. The plaintiffin an action, being a non-resident, was required by an order, made on the application of the defendant, to file a bond as security for the costs of the ac- tion, and pay $10 costs of the motion, within ten days. Within that time the plaintiff filed the bond, but neglected to pay the costs. There after, on the defendant's application, the com- plaint was dismissed, and a judgment for the costs entered in his favor. In an action brought by him against the sureties to the said bond, to recover the costs of the action — Held, that by procuring a dismissal of the complaint, the de- fendant, in legal effect, refused to accept the bond, and that the same never went into effect or becanie operative. — Supreme Ct., {\st Dept.,) June, 1880. Remington v. Wesiermann, 21 Hun 440. " ' IV. Allowance in Addition to Costs. 46. Power pf the court to grant extra allp-wance. An application for an additional allowance can only be made to the justice before whom the trial was had. — Su- preme Ct., (Ut Dept.,) May, 1881. Hun f Salter, 24 Hun 640. 47. An action to restrain the recognition of a claim to an office, is not one in which, under COSTS, IV, V. 73 the code, the court has power to grant an extra allowance. — Superior &., (Gen. T.,) Jvme, 1881. ■yoorhis V. French, 61 How. Pr. 161. 48. When it should be refused. "Where the Court of Appeals reverses a judg- ment of ihe General Term in favor of the de- rfendant on his demurrer to the complaint, and ■orders judgment for the plaintiflF on the de- murrer, with leave to the defendant to answer, on payment of costs, within a certain time, an extra allowance cannot he granted within that time, BO that the same shall hecome a part of the costs to be paid as a condition precedent to -an swerin g. — Superior Ct. McDonald v. Mallory, 46 Superior 58. 49. Where counsel have appeared and pre- -sented claims, in behalf of their clients, against funds in the hands of a receiver of an insolvent life insurance company, and the claims have heen rejected, and the orders rejecting them have been reviewed and afBrmed, upon appeals taken therefrom to the General Term and Court of Appeals, and neither of the courts has or- -dered that costs of the proceedings or of the appeals should be paid to such claimants, the Special Term should not grant an application made to it by the counsel for the unsuccessful ■claimants for an order granting them allow- ances in the nature of costs. — Supreme Ct., (1st Depi.,) Jan., 1881. People v. Security^Life Ins., ^&c., Co., 23 Hun 596. 50. The will of K. gave to plaintiffs cer- tain legacies, payable after the debts of the testator had been discharged. Plaintiffs brought this action for an accounting by certain of the defendants, as executors and trustees under said "will, and for a payment of the amount found due, out of the property in their hands ; or, if this proved insufficient, out of the real estate in the hands of the other defendants, "so far as the same might be applicable." The referee found that the testator was insolvent, that the real estate in question was sold to pay debts, and the complaint was dismissed. Defend- ants appeared by different attorneys, and an extra allowance of costs was made to each. Held, error; that the facts furnished no basis on which an extra allowance could be computed under the provision of the Code of Civil Pro- cedure in reference thereto (§ 309,) as there was no "'recovery," or "claim" for the payment •of any fixed sum, and " the subject matter in- volved " was plaintiffs' interest when ascer- tained, which proved to be nothing. — Ct. of App., Dee., 1880. "Weaver v. Ely, 83 N. Y. 89. 51. Ho"w the allOTvanoe should be computed. In an action to compel the de- fendant to lower the height of a dam and to recover the damages already occasioned thereby, any extra allowance which may be granted in the action must be computed upon the amount of the damages allowed, and not upon the value of the plaintiff''s property. — Supreme Ct, (2d Dept.,) Fd>., 1881. Kothery v. New York Euh- her Co., 24 Hun 172. 52. In an action brought by a judgment creditor to set aside a conveyance of laud made by the defendant, on tlie ground that it was made with intent to hinder, delay and defraud his creditors, in which action the plaintiff" suc- oeeds, an extra allowance granted by the court must be based upon the amount due to the plaintiff' upon his judgment, and not upon the ■value of the land. — Svipreme Ct., (Zd Dept.,) May, 1881. Potter v. Farrington, 24 Hun 551. 53. Instances. Where plaintiff" alleged that defendant, the Western Union Telegraph Company, had no legal right to certain property purchased by it from the American Union Tel- egraph Company, the value of which was found by the court, and such defendant claimed that it was the legal owner thereof, and the court sustained the claim of defendant — Held, that the defendant's title to this property was aff"ected by the judgment, and that the value of such property was the value of the " subject matter involved," as that expression is used in Code of Civ. Pro., ? 3253, and the basis on which to compute an extra allowance. — Superior Ct., [Sp. T.,) July, 1881. Hatch v. Western Union Teleg. Co., 1 Civ. Pro. 194; Williams V. Same, 61 How. Pr. 305. "V". Taxation and Collection. 54. Adjustment by clerk. Upon a dis- missal of an appeal from a County Court to the Supreme Court, the costs must be adjusted by the clerk, upon notice, in the usual way, and they cannot he taxed by a judge of the court, under section 311 of the coie.— Supreme Ct., {2d Dept.,) Sept.,lS80. Andrews « Long, 22 Hun 24. 55. Costs, in excess of the amounts allowed by law, cannot be taxed by the agreement of the attorneys for the parties to the action. — Supreme Ct., {2d Dept.,) Dec., 1880. O'Keefe v. Shipherd, 23 Hun 171. 56. Eeferee's fees paid by defendant upon taking up the referee's report, made upon a reference ordered in and by the order, order- ing pursuant to the judgment of the Court of Appeals, judgment absolute for plaintiff" against the defendant, with costs, cannot be taxed by defendant as a disbursement. — Superior Ct., (Sp. T.,) Aug., 1880. Kust v. Hauselt, 46 Superior 38. 57. "Witness fees. Under the provisions of Code of Civ. Pro., § 3251, a party is entitled to tax ten dollars for each witness examined be- fore trial.— /Supreme Ct., {Sp. T.,) Feb., 1881. Marston v. Hubert, 60 How. Pr. 490. 58. Disbursements. In an action to compel the reduction in height of defendant's dam and for damages, the plaintiff" cannot be allowed to include in his bill of costs the amount paid to a surveyor for making a survey and plans to be used upon the trial. — Supreme a., {2d Dept.,) Feb., 1881. Eothery v. New York Rubber Co., 24 Hun 172. 59. Setting aside adjustment ; read- justment. Affidavits to oppose a taxation of costs must be presented to the clerk at the time of taxation. — Supreme Ct., {1st Dept. Sp. T.,) Oct., 1881. Comly v. Mayor, &c., of New York, 1 Civ. Pro. 306. 60. To obtain a review by the court of the clerk's taxation of costs, the matter must be brought on by motion for a new taxation, and not by appeal from the taxation of the clerk ; and the motion should be heard upon the bill of costs with the items objected to, the excep- tions, the rulings of the clerk, and the affidavits presented to the clerk in opposition to his taxa- tion, lb, 61. Collection — party beneficially in- terested. Where the owner of a claim as- signs the same to a third party, upon considera- 74 COSTS, v.— COUNTIES. tion that the assignee shall begin and prosecute an action thereon, at his own expense, and when the said claim is collected pay to the assignor one-half of the amount received over and above all costs, the assignor is beneficially in- terested in the recovery under 2 Eev. Stat. 619, i 44, and is liable for the costs of the action so brought. This, though he did not retain or appoint an attorney, or furnish funds for the prosecution of said action, or in any way inter- fere therewith, or direct the progress thereof. — Superior Ct., Nov., 1880. Merceron v. Fowler, 46 Superior 3")1. 62. Enforcing payment. Costs award- ed upon sustaining a demurrer interposed by the plaintiff, to parts of an answer, are not interlocutory, but final costs, and the plaintiff cannot recover nor assign them until judgment is rendered upon the issues in the action gener- ally.— Siipreme a., _ (ls« Depi.,) Nov., 1880. Armstrong v. Cummings, 22 Hun 570. 63. Staying proceeding's for non- payment. This action was noticed for trial by both parties for the February Term, 1878. In June, 1878, a motion made by the defend- ant was denied, with |10 costs, which have never been paid. In February, 1879, the action was reached upon the calendar, and on the plaintiff's failing to appear, a judgment by default was taken by the defendant. Held, that the failure of the defendant to pay the costs awarded against him, operated, under Code of Civ. Pro., J 779, to stay all proceedings on his part ; that he had no power to move for a dis- missal of the complaint, and that the judgment should be set aside as entirely unauthorized. — Supreme Cl., (Ut Dept.,) Jan., 1881. Brown v. Griswold, 23 Hun 618. As to costs in l^ecial proceedings, see that title, and the titles of the various special pro- ceedings. As to costs in actions by or against personal representatives, see Executobs and Adminis- TBATOES, IV. As to the Attorney's lien for costs, see Attor- ney AND Client, III CO-TENANTS. Tenants in Common. COUNSELOR. Attorney and Client. COUNTER-CLAIM. Set-opi-. COUNTIES. 1. Powerp of board of supervlsois. Under the provision contained in Laws of 1874, ch. 323, that in all proceedings before th& governor for the removal of any county officer upon charges preferred against him, all the- costs and expenses thereof shall be a county charge upon such county, and shall be audited and allowed by the board of supervisors thereof, the board of supervisors has power, when a claim is presented to it thereunder, to examine the items thereof and determine whether or not such costs and expenses were reasonable, and whether or not they were necessarily and prop- erly incurred ; and as to these matters the court will not control the discretion of the board by a writ of mandamus. — Supreme Ct., \4th liept.,)- April, 1881. People, ex rel. Benedict, v. Super- visors, 24 Hun 413. 2. N. Y. Laws of 1875, ch. 482, passed in. pursuance of section 23 of article III., of the con- stitution, authorizing the legislature to confer ftirther powers of local legislation upon boards- of supervisors, did not authorize the board of supervisors of Cattaraugus county to alter the- salary of the surrogate of that county, as estab- lished by Laws of 1872, ch. 767, as amended by Laws of 1877, ch. 401.— t.,) Oct., 1880. Chamberlain v. Spargur, 22 Hun 437. 5. Po'wer to take an ackno'wledg- ment. An officer is not disqualified from taking an acknowledgment of a deed from his father to his wife, by reason of his relationship to the par- ties. — Ct.of App., Sept., 1880. Eeniington Paper Co. V. O'Dougherty, 81 N. Y. 474, 483. III. Hov7 Construed. Validity. 6. Tlie consideration clause. A deed acknowledging the payment of the purchase money is pTOio/ocie evidence that the grantee was a purchaser in good faith, for a valuable consideration, within the recording act. — Ct. of App , Nov., 1880. Lacustrine Fertilizer Co. ii. Lake Gnano, &c., Co., 82 N. Y. 476; affirming 19 Hun 47. 7. The habendum clause. The rule that the habendum clause of a deed when re- pugnant to the grant, is void, applied to the facts of the particulajr case. — Supreme Ct., (ith Dept.,) April, 1881. Kenney v. Wallace, 24 Hun 478. 8. What deeds are void because premises conveyed are held adverse- ly. To avoid a deed for champerty under the statute (1 Eev. Stat., 739, § 147,) actual,_ not constructive, adverse possessionin another, is re- quired. — Ct. of App., Jan., 1880. Dawley v. Brown, 79 N. Y. 390. 9. It must also appear that at the time of the delivery of the dsed the lands were in the actual possession of a person claiming " under a title adverse to the grantor." It is not enough that he claims title ; he must claim under some specific title, which must be disclosed, so that the court may see that it is adverse to that of the grantor in the deed assailed. Ih. 10. Description of premises con- veyed. By bounding land conveyed by the side of a street or highway, the land in the highway is excluded by force of the description so used, and does not pass to the grantee. — Su- preme Ct., (Sp. T.,) Jan., 1881. Matter of Sixty-seventh Street, 60 How. Pr. 264. 11. Courses and distances must yield to landmarks and monuments. When fixed and visible monuments will not control measurements, see Smyth v. McCool, 22 Huik 595. 12. What will pass as appurtenant. Where the owner of an entire estate conveys a portion thereof the purchaser takes the same with all the incidents and appurtenances which appear at the time of Ihe sale to belong to it, as between it and the portion retained. — Ot. of App., Sept., 1880. Simmons v. Cloonan, 81 N; Y:557. 13. It is not essential to the application of this rule that at the time of sale the apparent incidents should be in actual use by the vendor, in connection with the portion conveyed; knowledge on his part of their existence ig. suflScient, and this may be shown otherwise than by actual use. lb. 14. The incidents which pass "as appurten- ances must be open and visible, and when so, knowledge will be inferred. lb. 15. The appurtenances which pass in such case are not limited to those absolutely neces- sary to the enjoyment of the property conveyed ; it is sufficient if full enjoyment of the property cannot be had without them. lb. 16. Reservations. A clause reserving to the grantors the right of controlling the lands and all the benefits thereof, cannot operate as a reservation in favor of one who is not a party to the deed. — Supreme Ct., [ith Dept.,) Aprttj. 1881. Eysaman v. Eysaman, 24 Hun 430. As to the power of equity to Caned, Reform, or Set anide a deed, see Cloitd on Title; Creditoe's Suit ; Equity. As to Composition deeds, see Debtob and Ceeditoe, V. As to deeds to Married women, or between husband and wife, see Husband and Wife, VI., VII. As to the admissibility and effect of a deed as a Means of ei-idence, and how far it is open to Explanation by parol, see Evidence, II., IV. 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 Mortgages, I. As to deeds creating Trusts, see Trusts, I. DEFAMATION. Libel; Slaitdeic. DEFINITIONS. 1. Account stated. An account bal- anced and rendered, with an assent to the balance, express or implied, so that the demand is essentially the same as if a promissory note had been given for the balance. — Ct. of App., Jvm, 1880. Volkeuing v. De Graaf. 81 N. Y. 268, 270. 2. All my property, as used in a devise contained in a will, in a previous provision of which one-third of all testator's property had been devised to the testator's widow. — Hdd, to mean all my remaining property. — (X of App., June, 1880. Koseboom v. Koseboom, 81 ' Y. 356, 858. ^Y DEFINITIONS. 85 3. Barratry includes every species of tfraud committed by finy one standing in the place of master or mariner. — Gt. of Am., Feb., 1880. Spinnetti v. Atlas Steamship Co., 80 N. Y. 71, 81. 4. Bet or stakes. The words "bet or stakes " in the provision of the statute against racing (1 Rev. Stat. 672, i 55,) which prohibits all contests of speed of animals " for any bet or stakes ; * * * or any reward * * * excepting such as are by special laws for that . purpose expressly allowed," do not include contests of speed for " purses, prizes, or pre- miums," as those terms are now commonly un- •derstood. — Ot. of App., S~!pt., 1880. Harris v. White, 81 N. Y. 532. 5. Bet or ■wager. By a " bet or wager " •each party contributes money or some valuable thing termed the stake, getting a chance to gain ^ portion of that put in Dy the others and tak- ing a chance to lose that contributed by him- self. While a " purse, prize or premium " is ordinarily some valuable thing offered for a con- test, into the strife for which the person offering it does not enter. 76. 6. Capital stock. The words "capital stock," as used in 2 Eev. Stat. (6th ed.) 398,. mean the property and franchises of the com- pany, and the statute itself means that no cor- poration shall divide among its shareholders any portion of " the property and franchises of 4;he company."— Sitperior Ot., {Sp. 2'.,) June, 1881. Williams v. Western Union Teleg. Co., ■€1 How. Pr. 216. "7. Charges, as used in the provision of the .act of 1879, extending the jurisdiction of Courts of Special Sessions (Laws of 1879, ch. 390,) which gives to said courts exclisive jurisdic- tion, in the first instance, to hear and determine, among other things, " charges for assault and battery, not alleged to have been committed .riotously," implies an original complaint, made in the first instance, preliminary to a formal trial for" a crime; it does not include indict- ments. — Cl. of App., Jan., 1880. Kyan v. People, 79 N. r. 593. 8. Children, as used under the provision of the statute of distribution in reference to ad- vancements (2 Rev. Stat. 97, § 76,) includes all the descendants of the intestate entitled to share in his estate. — Ct. of App., Dec, 1879. Beebe v. Estabrook, 79 N. Y. 246. 9. As used in a will — who are not included, see Van Voorhis v. Brintnall, 23 Hun 260, 263. 10. Counter-claim. An afiSrmation of a cause of action against the plaintiff, in the na- ture of a cross-action, and upon which the de- fendant may have an affirmative judgment against the plaintiff. — U. S. Oire. Ot., (iSo. Bist.,) Nov., 1880. Clarkson v. Manson, 60 How. Pr. 45, 48. 11. Due process of law. What consti- tutes "due process of law" stated, and a trial by jury held not to be, in all cases, an essential element of such process. — Supreme Ot., {lat Dept.,) March, 1881. Matter of Curry, 1 Civ. Pro. 319. 12. External means, as used in a life policy in reference to the death of the insured, ^re exterior, visible and apparent means or causes — in this case the mistaking poison for water and drinking it. Its action on the system •of the insured was internal, though external as wll as internal in its effect. — Supreme Ot., (3d Dept.,) Sept., 1880. Hill v. Hartford Accident Ins. Co., 22 Hun 187, 191. 13. Floating debt, as used in Laws of 1875, ch. 517, providing for the "settlement of the floating debt of the village of Saratoga Springs," etc., defined. — Supreme Ot., (3d Dept.,) Nov., 1880. Cooke v. Village of Saratoga Springs, 23 Hun 55, 59. 14. Q-aming. Illegal gaming implies gain and loss between the parties by betting, such as would excite a spirit of cupidity. — Ot. of App., Sept.. 1880. Harris v. WhitC; 81 N. Y. 532, 539. 15. Honorary, as used in connection with a public office, means without profit, fee or re- ward, and in consideration of the honor con- ferred by holding a position of responsibility and trust. — Ot. of App., Jvme, 1880. Has well v. Mayor, &o., of New York, 81 N. Y. 255, 258. 16. Ill conduct. The adultery of the wife is "ill conduct" within the meaning of those terms as used in 2 Rev. Stat. 147, § 53, authoriz- ing the defendant, in an action for a separation, to prove ill conduct on the part of the com- plainant. — Swprems Ot., (3d Dept.,) Nov., 1880. Doe V. Roe, 23 Hun 19. 17. Illegitimate, as used in the statute of descents in this state, means a child begotten and born out of wedlock. — Supreme Ot., {2d Dept.,) Feb., 1881. BoUermann v. Blake, 24 Hun 187. 18. Implied contract. One which reason and justice dictate, and which the law there- fore presumes that every man undertakes to perform. In implied contracts the law implies from the antecedent acts of persons, and from general usage and custom, what the obligations of such persons are to be ; whereas, if an ex- press contract is made, the parties themselves thereby assume to define what their obligations aie to be. — Supreme Ct,, {ith Dept.,) Oct., 1880. Commercial Bank of Keokuk v. Pfeiffer, 22 Hun 327, 335. 19. Improvidence, as used in 3 Rev. Stat. (6th ed.) 73, | 3, subd. 5, authorizing the re- moval of an executor for "improvidence," means habits of mind and conduct which be- come a part of the man, and render him unfit for the trust.— iV. T. Surr. Ot., Feb., 1880. Free- man D. Kellogg, 4 Redf. 218, 20. Individual banker, as used in the provision of the act of 1875, relating to savings banks, (Laws of 1875, ch. 371, § 49,) which declares it "not to be lawful for any bank, banking association or indimducd banker to advertise or put forth a sign as a savings bank," applies only to one who has availed himself of the banking statutes of this state, and has become empowered to do banking thereunder; it does not apply to a private banker, who exercises in his business no more than the rights and privileges common to all. — • Ot. of App., Feb., 1880. People v. Doty, 80 N. Y. 225, 228. 21. The various banking acts expressive of the legislative intent in the use of the term " individual banker," collated. lb. 22. It seems, that the proper phrase to des- ignate a banker doing business without having acquired the privileges conferred by the pro- visions of the statute, is " private banker," not " individual banker." lb. 23. Internal means, as used respecting the cause of death of one whose life is insured, are causes occurring and operating within the 86 DEFINITIONS. body of the insured, and effecting death by un- apparent and invisible means and causes. Such risks are not assumed under an accident policy. —Supreme &., {3d JDept.,) Sept., 1880. Hill v. Hartford Accident Ins. Co., 22 Hun 187, 191. 24. Involved, as used in section 3253 of the Code of Civil Procedure, relating to allow- ances in addition to costs, means "affected." — Superior a., {Sp. T.,) July, 1881. Hatch v. Western Union Teleg. Co., 1 Civ. Pro. 194; Williams v. Same, 61 How. Pr. 305. 25. Judge of the court. The phrase "judge of the court " is used in the sections of Title XII., relative to supplementary proceed- ings, in its general sense, and without regard to the question whether the judge's title is technic- ally that of "justice" or "judge." — Supreme Ot., {1st Dept.,) May, 1881. Baldwin v. Perry,l Civ. Pro. 118. 26. Labor, as used in the Michigan stat- ute, rendering stockholders in a manufacturing corporation " liable for^ all labor performed for such company," does not, either by the Michi- gan law or by that of New York, include ser- vices rendered by the secretary, although he also acted as book-keeper. — Supreme Ot., {1st Dept.,) Fd>., 1881. Viele v. Wells, 9 Abb. N. Cas. 277. 27. Laying out. The words "laying out," in the title of an act of the legislature, include the opening of streets. — Supreme Ct., {1st Dept.,) April; 1881. Matter of Dept. of Public Works, 24 Hun 378. And see, also, Matter of One Hundred and Thirty-eighth Street, 60 How. Pr. 290, 293. 28. Mariners incliides a purser perma- nently attached to a vessel ; and a theft or em- bezzlement by him is included in the term " bairatry."— C<. of App., Feb., 1880. Spiuetti ■0. Atlas Steamship Co., 80 N. Y. 71, 80. 29. My personal estate. When the words " my personal estate," in a married wo- man's note, will be held binding, the same as if she had used the words " my separate estate," see First Nat. Bank of Saugerties v. Hurlbut, 22 Hun 310. 30. Next of kin. Although a widow is not entitled to a share in the estate of her de- ceased husband as one of his next of kin, yet she is included in that term as us^ in sections 9 and 10 of 2 Bevised Statutes 114, author- izing an action to be brought "by any legatee, or by any of the next of kin entitled to share in the distribution of the estate," against the executor or administrator thereof, to recover his legacy or distributive share. — Supreme Ot., (3d Dept.,) Jan., 1881. Betsinger v. Chapman, 24 Hun 15. See, also, Snyder v. Snyder, 60 How. Pr. 368, 370. 31. Obligation, as used in Laws of 1879, ch. 538, reducing the rate of interest to six per cent., and excepting from its operation " obli- gations" made before its passage, is broad enough to cover all cases in which, either by contract or by operation of law, interest was attached to an existing liability. The general sense of the word "obligation" is "a duty," and Lord Cokp defines it to be "a tie which binds us to pay or do something agreeably to the laws and customs of the country." (Inst. 3, 14.) In a narrower sense it means a bond or deed under seak But it is obviously used in the statute regulating interest, in its broadest sense, with intent to cover every liability to which interest attaches. — Supreme Ot., {1st Dept., Jan., 1881. Erwin v. Neversink Steamboat Co.,. 23 Hun 578, 580. 32. Perils of the sea. When the word "perils" in a marine policy will be construed as synonymous with risks, see Providence, &c,. Steamship Co. v. Phoenix Ins. Co., 22 Hun 517, 522. 33. Pregnant -woman, as used in 3 Rev. Stat. (6th ed.) 932, ? 11, is synonymous with " a woman with child," and the use of the latter term instead of the former, in an indictment under said section is sufficient. — Swpreme Ot., {1st Dept.,) N., 1880. Eckhardt v. People, 22 Hun 525. 34. Private nuisance. Anything done- to the hurt or annoyance of the lands, tene- ments, or hereditaments of another. Any un- warrantable, unreasonable or unlawful use by a person of his own property, real or personal,, to the injury of another. — Ot. of App., April, 1880. Heeg v. Licht, 80 N. Y. 579, 582. 35. Purse, prize or premium. Apnrse,. prize or premium is ordinarily some valuable thing, offered by a person for the doing of some- thing by others, into the strife for which he does not enter. He has not a chance of gain- ing the thing offered; and if he abide by his offer, that he must lose it and give it over to some of those contending for it, is reasonably certain.— Ci. of Ayip., Sept., 1880 Harris v. White, 81 N. Y. 532, 539. 36. Reciprocal demands, as used in the provision of the Code of Pro, ? 95 specifying, when a cause of action "upon a mutual, open and current account, where there- have been reciprocal demands between the par- ties," shall be deemed to have accrued, means no more than " mutual accounts," as used in the former statutes. — Ot. of App., Nov., 1879. Green V. Disbrow, 79 N. Y. 1, 8. 37. Refusal. The " refusal " spoken of in the provision of the statute in reference to bills- of exchange, (1 Eev. Stat. 769, ? 11,) which de- clares that one upon whom a bill is drawn and delivered for acceptance, who destroys or refuses to return it, shall be deemed to have accepted it, is an affirmative act, or is made up of con- duct tantamount to one ; it is also a willful or wrongful act. — Ot. of App., Jan., 1880. Matte- son V. Moulton, 79 N. Y. 627. 38. Resident alien, as used in the pro- vision of the act of 1845, "to enable resident, aliens to take arid hold real estate " (Laws of 1845, ch. 115, § 4,) which enables those an- swering the description of heirs of a deceased alien resident to take, whether they are citizens or aliens, does not include or designate a natural- ized citizen — Ot. of App., Feb., 1880. Luhrs v.. Elmer, 80 N. Y. 171, 177. 39. Special deposits includes money,, -securities and other valuables delivered to banks, to be specifically kept and redelivered ; it is not confined to securities held by the banks as collateral to loans. — Ct. of App., Feb., 1880. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82, 96. 40. Straddle, as used in respect to stock speculations, defined. Harris v. Tumbridge, 83^ N. Y. 92, 95. 41. Thefb— thieves. The difference in the views of the courts of England from those of the courts>of this state, as to the meaning of the words " theft " and " thieves " in policies of insurance, pointed out.— Q. of App., Feb., 1880.. Spinnetti v. Atlas Steamship Co., 80 N. Y. 71 DEFINITIONS— DEPOSITIONS, I. 87 42. To arrive. These words in a contract of Bale import a condition that if the goods do not arrive the vendors shall not he hound by the contract. — Suipreme Cl., {'2d Dept.,) Dec., 1880. Dike v. Reitlinger, 23 Hun. 241, 242. 43. Unsatisfled— unexecuted. What constitutes the return of an execution " un- satisfied or unexecuted," as those terras are used in section 1377 of the Cpde of Civil Pro- , cedure, stated. — Supreme Ct., (2d Bepl.^ Feb., 1881. Frean v. Garrett, 24 Hun 161. 44. Vacant and unoccupied, as used in a condition in a fire policy. — Hdd, to mean not only that the house should have no oc- cupying tenant, but an unfurnished as well as untenanted house. — Cl. of App., Jvme, 1880. Herrman v. Merchants' Ins. Co., 81 N. Y. 184, 188. 45. 'Whole Bum, as used in the Btatul« fix- ing the percentage of the fees of an assignee for creditors, defined. — Com. Pleas., {Sp. T.,) May, 1881. Matter of Hulbert, 61 How. Pr. 98, 99. DELIVERY. Deeds, 3 ; Sales, II. DEMAND. As to the Necemiy of a demand before suit, see Bills of Exohakge, 9, 10 ; Pbomissoby Notes, Teoveb. DEMURRER. How Interposed, and When proper, see Plead- tsa, in. As to 6-U. DEPOSIT. depotUed in ba/nk, see Banks, DEPOSITIONS. I. De Bene Esse, and on Commission. n. Examination of Pasties befobe TbiaIi. I. De Bene Esse, and on Commission. 1. Power to award a commission. The power of the court to award a commission without the consent of parties, to take the testi- mony of a witness out of the state, depends en- tirely on statute, and can only he exercised in the cases therein specified — Gt. of App., Dec., 1880. Matter of an Attorney, 83 N. Y. 164. 2. The provisions of the Code of Civil Pro- eedure in reference to taking depositions out of the state (^ 887, et seq.,) relate to actions only. lb, 3. When a commission may issue. When a commission to take testimony may issue in an action of interpleader, and when the order should not direct that the testimony may be used on the trial of all issues that may arise, see Eemp v. Dickinson, 22 Hun 593. 4. A commission may be issued to take the testimony of one committed to a lunatic asylum in another state, on the ground of insanity, but, upon the trial of the action the return thereto must be first submitted to the presiding justice, who shall determine, on an examination of the answers therein contained, and of such witnesses having knowledge of the subject as may be pro- duced before him, whether or not the mental condition of the witness is such as to render his testimony admissible in evidence. — Supreme Ct., (1st Dept.,) Dec., 1880. Hand v. Burrows, 23 Hun 330. 5. Settling the interrogatories. It teems, that while a judge, in settling interroga- tories to be annexed to a commission to take testimony, is required to allow "any question pertinent to the issue " (Code of Civ. Pro., § 892,) he has authority to disallow questions not per- tinent, and hence to determine whether a ques- tion is pertinent or not. The power to exclude questions, however, should be sparingly exer- cised. — a. of App., Dec., 1879. Uline v. New York Central, &o., R. E. Co., 79 N. Y. 175. 6. The judge in such case has not the discre- tion which the court has on trial as to the ex- tent to which he will permit a cross-examina- tion, for the purpose of merely testing the credit of the witness, and upon matters collateral to the main issue ; he must insert all pertinent questions. lb. 7. The decision of the judge in settling the interrogatories is an order (Code, § 767); if it disallows a pertinent question, it affects a sub- stantial right, and is therefore appealable. (Code, g? 1347, 1348.) lb. 8. In an action to recover damages for in- juries alleged to have resulted from defendant's negligence, a release was set up as a ^^fence ; this the plaintifi" claimed was a forgery. A com- mission was issued on behalf of defendant, to take the testimony of the person who plaintiff alleged forged the release, as to the alleged set- tlement. Plaintiff, after a cross-interrogatory calling for the salary paid to the witness, pro- posed others, asking the amount of the witness' expenses per annum, whether he left the place by day or night, by whom he was accompanied, and where he stopped ; also, as to the amount of the debts he left unpaid ; whether before he left he purchased an India shawl, and at what price, and whether he borrowed money of cer- tain persons specified. These cross-interroga- tories were disallowed, Sdd, error. lb. 0. Annexing exhibits to the com- mission. Upon the taking of a deposition in another state, letters which are merely identified before the commissioner are not to be considered as " produced and proved " within Code of Civ. Pro., ? 901, as exhibits, and such letters need not be annexed to the commission. — Supreme Ct., {lat. Dept.,) Nov., 1880. Kelley ■;. Weber, 9 Abb. N. Cas. 62. lO. Such an identification will not render the letters admissible at the trial, without evidence of genuineness by witnesses; but the fact 88 DEPOSITIONS, I., II. that such letters have not been annexed to the deposition, is not a sufficient ground for the sup- pression of the commission, lb. II. Examination op Parties Befobb Triai. 11. Biscretionary po-wers of the court. Where the affidavit, presented upon an application for an order for the examination of of a party before trial, contains all the facts which the Code of Civil Procedure and the general rules require to be stated therein, it is imperative upon the judge to grant the order. — Swpreme Cl., (2d Dept.,) Feb., 1881. Sweeney V. Sturgis, 24 Hun 162. See, also, Harrold v. New York Elevated E. E. Co. 21 Hun 268. 12. In wtiat cases the order should be granted. In an action to set aside a gene- ral assignment for the benefit of creditors on the ground of fraud, the defendant may, on a proper showing, he examined before trial at the in- stance of the plaintiff. — Supreme Ct., {1st Dept.,) Jan., 1881. Tenney v. Mautner, 1 Civ. Pro. 64. But compare to the contrary, Euss v. Campbell, Id. 41. 13. Such examination may be had where the moving affidavits conform to the provisions of the code, and the rules laid down by the de- cisions of this court and the Court of Appeals, in relation to the necessity of satisfying the court that the desired examination is something more than a mere fishing expedition, and is sought to establish facts important to the issues and necessarily within the knowledge of the parties to be examined. While the court will carefully protect parties from an abuse of its power to direct such examination, it will see that the objects and spirit of the code are not defeated by a rigid adherence to technical rules. Tenney V. Mautner, supra. 14. "When it should be refused. An order for the examination of a party before (rial, is not properly granted, to enable the plaintiff to procure material with which to frame an amended complaint, where it appears that, so far as the form of the complaint is concerned, it is not necessary to the prosecution of the plaintiff's rights, that it should be made more definite and certain ; and where the form of complaint will entitle him to all the relief which his proven cause of action would call for. In such case, the moving papers show no facts or circum- stances as to the materiality or necessity for the examination, and do not conform to rule 83 of the General Eulea of Practice. — Ckeditoe, 15, 16. DYING DECLARATIONS. Evidence, 60. EASEMENT, I., II. 96 E. EASEMENTS. I. General Principles. H. Paetioulab Kinds or Easements. I. General Principles. L Easement by prescription. It seems iiiat to oonetitute an easement by prescription, it is not essential that the user should have been ■with the actual knowledge of the owner of the servient tenement. Where the user has been, for the requisite time, open, notorious, visible, uninterrupted, undisputed and under claim of right adverse to such owner, he is charged with notice and his acquiescence is implied ; the ki-w presumes a grant from him, and such pre- sumption is conclusive. — Ot. of App., Oct., 1880. Ward V. Warren, 82 N. Y. 265; affirming 15 Hun 600. 'My 2. What conveyance ■will create an •easement. H., being the owner of certain lands in the city of New York, executed con- veyances and mortgages of various parcels, re- ferring therein to certain streets and avenues which had not then been laid out by legal au- thority, and the parcels conveyed and mort- gaged were described as bounded by said streets and avenues. Hdd, that the conveyances, al- though not amounting to a dedication to the public of the land embraced in the speoifled streets and- avenues, or constituting them public highways, created an easement in the grantees, which, as between them and him, entitled them to have the land left open as streets, for the benefit of their lots. — Cl. of App., Sept., 1880. Matter of Eleventh Ave., 81 N. Y. 436, 447. 3. In subsequent proceedings to open said streets and avenues, the commissioners appointed to award compensation for the land to be taken, in the first place awarded nominal compensa- tion only, they treating the land as having been ■dedicated to public use. The court refused to confirm their report, and sent it back to be cor- rected by awarding just compensation. Held, ithat this was not an adjudication that no ease- ment had been parted with by the owner, but the only right adjudicated upon was that of the city ; and it was not, therefore, a bar to a claim of such an easement by the owner of one of the lots so conveyed. lb. 4. Rights of grantee of easement. A servitude is not an estate in lands within the meaning of section 137 of 1 Eev. Stat. 738, providing that every grant in fee, or of a free- hold estate, not acknowledged or attested, shall not take efibct as against a purchaser or incum- brancer until so acknowledged. — Supreme Cl., (3d Dept.,) Maty, 1881. Nellis v. Munson, 24 Hun 575. 5. Right of one who has exercised an ease- ment to enforce, against a purchaser of the servient tenement, with notice, specific per- formance of a defective grant of the easement, considered. lb. 6. Where lands are taken subject to a cove- nant made between a former owner thereof and the owner of adjacent property, which covenant forbids the use of the premises for "any kind of manufactory, trade^ or business whatsoever," a change in the character of the neighborhood 6. g., such as that produced by the erection of an elevated railway, which impairs the use of the premises in question for the purposes con- templated by the covenant, but does not afifect the remainder of the property bound thereby, does not modify or impair the obligation im- posed by the covenant upon the owner of said premises. — Superior Ot., June, 1880. Trustees of Columbia .College v. Thacher, 46 Superior 303. II. Particular Kinds op Easements. 7. Party-'walls. An old wall from long user, in the absence of evidence, may be deemed a party-wall, presumptively, either from an agreement to that effect, or from its being built upon bhe line of the two lots for that purpose by the respective owners. — Ct. of App., AprU, 1880. Schile v. Brokhaus, 80 N. Y. 614, 618. 8. It seems that where a party-wall has be- come so dilapidated as to be unsafe, the owner of one building has- the right to replace it, and in so doing is not liable in damages. lb. 9. It seems, also, that where a party-wall is interfered with for the benefit of one owner, as by raising it, such owner is absolutely liable as insurer for any loss or damage occasioned to his neighbor thereby. lb. 10. Where one of two adjoining proprietors, in disregard of the rights of his neighbor, tears down a party-wall, or a portion thereof, claiming that it stands entirely upon his own land, and intending to erect a new wall for him- self, without giving his neighbor any benefit from it as a party-wall, it is a trespass, and the trespasser is liable for the damages resulting. lb. 11. A party-wall may be increased in height by either party interested therein, provided it can be done without detriment to the strength of the wall, or to the building of the adjoining owner. — Supreme Cl., (Sp. T.,) Musgrave ji. Sherwood, 23 Hun 674 ». 12. Private "ways. Plaintiff claimed a right of way, by prescription, over defendant's premises in the city of T. The way led from a public street ; it had been paved, kept in order, and used uninterruptedly, for more than twenty years by the owners of the dominant tenement, who also maintained and used a gate for entry thereto from the street. The way was not used by the owners or occupants of the servient tene- ment. The defendants had owned the latter, as tenents in common, sinoe 1846, two of them living in the city all of the time, and the other most of the time. They did not occupy the premises, but had personal charge of them, let- ting them on short leases, keeping them in repair, and collecting the rents. In an action to restrain defendant from closing up and ob- structing the wa.y, after proof of the foregoing facts, the defendants, as witnesses, denied any 96 EASEMENT II.— EJECTMENT. knowledge of the user ; one of them was blind. Held, that the facts aathorized a finding of knowledge.— Ci. of App., Oct., 1880. Ward v. Warren, 82 N. Y. 265. 13. The jadgment gave the plaintiff the possession and right " to use and enjoy the way, the same as he has been accustomed to do." Sdd, proper. lb. EJECTMENT: CONFLICTING CLAIMS TO REAL PROPERTY. 1. WTien ejectment 'wUl be. Under what showinga plaintiff will not be estopped from bringing ejectment, either by reason of long delay in asserting his title, or by the fact that the defendant had, relying upon the validity of his title, expended large sums of money in im- proving the property, see McCullouch v. Well- ington, 21 Hun 5. 2. Parties defendant. In an action to recover real property, those who claim to be the owners thereof are properly joined as defendants with the tenants who are in possession under Giem.— Supreme Ct., {3d Dept.,) Sept., 1880. More V Deyoe, 22 Hun 208. 3. "What title or possession •will sup- port tlie action. In an action of ejectment plaintiff claimed under a void deed from the state comptroller, executed in 1836, purporting to convey, with other lands, the northwest quarter of a certain township containing six thousand three hundred acres. Defendant unlawfully entered into posssession of two thousand acres of the north part of the said quarter. Plaintiff gave evidence to the following effect. He had paid the taxes on the land, claiming title thereto, and caused the same to be surveyed. About 1852 he caused some lots to be surveyed in the northwest corner of said quarter, lot one containing nine hundred and fifty acres. In 1856 one K., under an ar- rangement with plaintiff) cut from this lot a quantity of logs, paying plaintiff there- for. In 1864 plaintiff hearing that de- fendants intended to enter upon the land, arranged with K. to go upon it, cut some logs, and build a shanty, for the purposeof thus gain- ing possession. E. that winter went upun said lot 1, cut logs and built a shanty without a, roof, cutting over less than a quarter of an acre, and remaining thereon about three weeks; in the summer of 1865 B. put a roof on the shanty, and built a bam. In the winter of 1865-1866, after the commencement of the action, E. went upon the said lot under plaintiflj cut roads and cut a large quantity of logs. Seld, that plaintiff did not show such possession as entitled him to recover for anything more, at most, than the small piece of cleared land upon which was the shanty and barn. — Ct. of App., Dec., 1879. Thompson v. Burhans, 79 N. Y. 93; revereinq 15 Hun 580. 4. It is sufficient to maintain an action of ejectment against the lessee claiming under a void lease, that the plaintiff was in actual pos- session at the time of entry under the lease ; and if in such an action the lessor be allowed to interpose an answer, it cannot defend if the rela- tion of landlord and tenant is not shown to exist between it and the defendant. — Superior Ct., Dec, 1880. Carleton v. Darcy, 46 Superior 484. 5. Demand and notice to quit. Wheo' the relation of landlord and tenant does not exist- between the parties, and the only issue between them is as to the title, no demand or notice to- quit need be made or given before commeneing an action of ejectment. — Supreme Ct., {ith Dept.f) April, 188 1. Eysaman v. Eysaman, 24 Hun 430^ 6. 'Wliat may be sho^wn in defence. Where both the plaintiff and defendant in an action of ejectment claim under quit-claim deeds- given by a common grantor, the defendant may show that such grantor had no title, and that nothing passed by either of the deeds executed by him.— Supreme Ct., (ith Dept,) Oct., 1880. Henry v. Keichert, 22 Hun 394. 7. In an action of ejectment the plaintiffmust recover upon the strength of his own title, and the defendant need not show title in himself until some right to disturb his possession has- been shown by the plaintiff. 1 b. 8. Evidence. In an action of ejectment brought against persons claiming title to the land in question, and tenants in possession under them, the plaintiff gave evidence tending to show that the annual use of the premises was worth $500, the taxes to be paid by the lessee. The defendants then put in evidence the lease given to their tenant, by which a rent of $52-5 was reserved; the lessee agreeing to pay the school and road taxes, and the lessors the town^ county, and state taxes. They then offered t» prove that the actual receipts of the rents and profits from the farm, after paying the taxes and expenses, amounted to only $325 a year. Held, that the evidence so offered by the defendants bore upon the question as to the value of the use and occupation of the premises, and that the court erred in rejecting it. More v. Deyoe,. sapra. Q. This action was brought by plaintiff as the devisee of H., deceased, to recover the pos- session of a lot formerly belonging to said H. The defence was, that defendant had, prior to the death of said H., entered into the possession of the lot under an oral agreement with him , which provided that the lot should belong to her, if she should thenceforth support and main- tainone M. H., a sister of defendant and of said H., and that on the faith of the said agreement she did provide for and maintain the said M. H., and made permanent and valuable improvements upon the property. Upon the trial, defendant offered to prove that, after entering into posses- sion of the premises, relying upon the said agreement, she made substantial and permanent improvements thereon. Held, that the evidence was admissible, and that the court erred in ex- cluding i\^— Supreme Ct., IZd Dept.,) Nov., 1880. Dana v. Wright, 23 Hun 29. lO. In this action, broughb to recover a tri- angular strip of land, it appeared that the plaintiff had in 1856 contracted, by a sealed in- strument, to convey about twenty-five acres of land (including the strip in question), part of a larger tract of fifty acres, to one S., who agreed to pay a mortgage covering the whole fifty acres,, as a part of the purchase money. Thereafter, the mortgage was conveyed to S.'s wife, who foreclosed it by advertisement, and bought in a part of the fifty acres for the full amount due ;^ the part so purchased being substantially that covered by the contract, except that it wa& clidmed that the description did not include the strip in question. Upon the trial, evidence was- EJECTMENT— EMINENT DOMAIN. 97 received, against the plaintiff's objection and exception, to show that S. made the contract as the agent for, and in behalf of his wife, who thereafter entered into possession of the pre- mises with him, and that the aroount due upon the contract had been fully paid to the plaintiff. Sdd, that the evidence was properly admitted. — Svjyreme Ct., (3d Dqj«.,) May, 1881. Carley ». Potts, 24 Hun 571. 11. Compensation for improvements. It seems that one who has put improvements upon the lands of another is at the best only allowed to thereby mitigate the damages by off- setting them to the extent of the rents and profits claimed. To do this he must be a bona fide occupant : he cannot he allowed them if he has acted with knowledge of the owner's right. — 01!. ofApp., Jan., 1881. Wood v. Wood, 83 N. Y. 575 ; affirming 18 Hun 350. For rules relative to the TMe to real property, a^id the rights and liabilities of the owner m re- spect to its use, see Beai. Pbopebtt. As to Nea trials in ejectment, see New Teial,!. ELECTION. Of Offieers, see Elections ; MxnnoiPAii Cor- E0BATI0N8, IV., As to the ' election between different Forms or Clauses of action, see AcmOK, 0, lO. As to election between Dower and Testament- ary provision, see Dottee, 3. ELECTIONS. 1. Receiving and rejecting ballots. Where one who attempts to vote has been natu- ralized by a court of competent jurisdiction, his right to citizenship cannot be questioned by election oflBcers. — Supreme Ct., (1st Dept.,) Oct., 1880. People, ex rel. Christern, v. Walsh, 9 Abb. N. Cas. 465. 2. Where a statute prohibits those voting at an election to vote for more than two of three officers to be elected, ballots cast in pursuance of the act are not invalidated by its unconstitu- tionality ; the fact that the electors exercised in part only their privilege or duty of voting, does not affect the votes actually given. — Gt.of App., Feb., 1880. People, ex rel. Watkins, v. Perley, BON. Y. 624. 3. Illegal inducements to vote. The defendant, a candidate for a county office, during the whole canvass, down to the day of election, published and circulated throughout the county a promise addressed to the electors to this effect : "That if elected to the office of county judge, I will pledge myself to take only 11200 a year for my services ; that I will pay out of my own pocket the coal necessary to heat my law office ; that I will pay for all stationery and letter-heads, and will see that persons needing blanks pay for them themselves, and if a member of assembly can be elected who will have the law amended reducing the salary to $1200, I will guarantee to waive all constitutional objections and never question its validity." Held, sufficient to in- validate defendant's right to the office. — Sii- preTTie Ct., {SuUivan Oir.,) Dec., 1880. People, ex rel. Bush, o. Thornton, 60 How. Pr. 457. 4. The promises and pledges of defendant were made to the tax-payers and electors gene- rally, and were of a character, within the fair spirit and meaning of the acts, impliedly pro- hibited by article Xll. of the< state constitution. lb. 5. It is not necessary that there should be evidence from any witness who voted at the election for defendant, that he did so in conse- quence of such pledges and promises. The il- legal promises to induce votes having been affirmatively shown to have been made to every elector, more particularly to every tax-paying elector, the onui' of showing the numbers of votes that were influenced thereby, should devolve upon the defendant, and it should devolve upon him to show the number of votes uninfluenced by such promises he did actually receive. lb. 6. An offer of a bribe is criminal, and this is so whether the offer is accepted or not. It disfranchises the party making the offer as well as the party influenced thereby. lb. EMBEZZLEMENT. For offences analogms to embezzlement, i FAiiSE Pbetencib; Labgeny. EMINENT DOMAIN. [Consult, also. Municipal Cobpobations ; Eaileoad Companies.] 1. Constitutionality of statutes. The act of 1866, (Laws of 1866, ch. 347,) entitled " An act to supply the village of Middletown with water for public and private purposes," and the amendatory act of 1879, (Laws of 1879, ch. 85,) are not unconstitutional as authorizing the taking of private property for private use ; the acts simply contemplate a public use. — Ct. 0/ .4pp., Sept., 1880. Matter of Village of Mid- dletown, 82 N. Y. 196. 2. The provision of the act (section 3 as amended in 1879,) empowering the commission- ers appointed under it to appraise the compen- sation, also to fix and limit the maximum of water to be taken, &c., is not repugnant to the constitution ; there is no constitutional prohibi- tion, express or implied, against conferring ad- ditional powers upon commissioners appointed to appraise the compensation for property taken for public use. lb. 3. The said act is not unconstitutional because of failure to provide for giving notice to land- owners or parties interested, of the application for the appointment of commissioners ; it is suffi- cient that it provides for notice of hearing. lb. 4. Where, in such case, opportunity to appear and be heard is secured, it is within the power of the legislature to determine the form, time and manner of notice. lb- 5. What estate or interest may be taken. It is within the power of the legislature, in authorizing land to be condemned for a pub- lic use which may be permanent, to determine ^98 EMINENT DOMAIN— EQUITY^ I. what estate therein shall be taken, and to au- thorize the taking of a fee or any less estate, in its discretion— a. of App., Bee., 1879. Sweet V. Buflalo, &c., E'y Co., 79 N. Y. 293. 6. A fee may be taken, although the public u-se for which the land is to be taken is special and not of necessitv permanent or perpetual. lb. ' . , I. Where a statute authoriies the taking of a fee it cannot be held invalid, or that an ease- ment only was acquired thereunder, on the ground that an easement only was required to accomplish the purpose in view. Ih. 8. The right to compensation. The constitutional provisions ih regard to taking private property for public use without eompen- sation, do not apply to the taking of public rights and public property. — Supreme Gt., {Alh. ^. T.,) June, 1880. People v. Long Island B. E. Co., 9 Abb. N. Cas. 181. 9. Computing the compensation. When land is taken for a railroad, the damages to be paid by the company are to be determined by the detriment occasioned to the owner, and not by the value of the land to the company. — Supreme Gt., (3d Dept.,) Sept., 1880. Matter of Boston, &c., R'y Co., 22 Hun 176. 10. It is not essential under the act above mentioned (f 1) that the damages of all parties interested should be assessed in one proceeding. Therefore— J2«M, that it was not a valid objection to proceedings under the act, for the appoint- ment of commissioners ; that there were owners whose rights would be allected by a diversion of the water, to whom no notice of the application had been given. Matter of Village of Middle- town, supra. II. The provision of said act (§ 4), providing that on appeal from the award of commissioners, the court may increase or diminish the compen- sation, is violative of the constitutional provision (art. I, § 7,) declaring that the compensation for property taken for public use shall be ascer- tained by a jury or by commissioners. But this unconstitutional provision did not invalidate the remainder of the act ; as, with it stricken out, the remainder wa-s complete in itself and oapar ble of being executed. lb. 12. Under the provision of said act (g 3), making it a condition precedent to an applica- tion for the appointment of commissioners, that the trustees, after effort made by them for that purpose, had failed to agree witli any owner or occupant upon the amount of the damages, all that was requisite was that negotiations should proceed far enough to indicate that an agree- ment was impossible ; an effort to agree was all that was required ; and where an owner put a price upon his property ten times above its valu«, it was equivalent to a refusal to come to an agreement. lb. 13. An effort and failure to agree preceding the passage of the amendatory act of 1879 was sufficient. lb. 14. Conclusiveness of commission- ers' report. Where the report of commis- sioners appointed to appraise the damages re- sulting to the owners of land, by reason of its being taken for railroad purposes, has been set aside by the General Term, on the ground that they erred in only awarding nominal damaget to the owners, and a new set of commissioners hss been appointed who have made their report, by which nominal damages only are awarded to the owners, the court will not, in the absence of fraud, corruption, misconduct or misappre- hension, set aside the last report and appoint a new set of commissioners.— SMprme Lt., (M Dept.,) FA., 1881. Matter of Prospect Park, Ac; E. E. Co., 24 Hun 199. ENTRY. As to Bight of a landlord to re-enter, see Land- lord AND Tenant, I. As to entry of Jvdgmmts and Decrees, see Judgment, II. EQUITABLE CONVERSION. Wn-M, V. EQUITY. I. The Jtjbisdiction, GenebaiXy; and Hovr Exebcised. II. Jtjbisdiction in Pabticitlab Cases. I. The Jtjbisdiction Gbneeali-t; and HOW Exebcised. 1. "What matters are within the jurisdiction, generally. When fraud wUl vitiate assessment proceedings, and when equity will relieve against conveyances under them, see Dederer v. Voorhies, 81 N. Y. 153. 2. "What are not. Equity will not inter- pose to perfect a defective gift or voluntary set- tlement made without consideration, nor can it convert an imperfect gift into a declaration of trust merely on account of that imperfection. —a. of App., April, 1880. Young v. Young, 80 K. Y. 422. 3. — because plaintiff has a remedy at law. Plaintiffs, to discharge an attach- ment, executed an undertaking conditioned to pay the plaintiffi in the attachment suit the amount of any recovery therein. Subsequently, by stipulation of the parties in that action, the summons and proceedings were amended by bringing in another as defendant ; the answer was thereafter withdrawn and judgment taken as by default. An action was brought upon the undertaking. This action was thereupon brought to stay proceedings in said action, to vacate the judgment and attachment and to cancel the undertaking, the complaint alleging fraud and collusion and that the claim in the attachment suit was fictitious. The trial court found tfhe facts in favor of defendants and dismissed the complaint. It was claimed upon appeal that by the amendment bringing in a new party, plain- tiffs' undertaking was discharged. Seld, that if plaintiffs' claim has any merit (as to whidi, qucBre) it was available to plaintifii in the action on the undertaking, and furnished no ground for the interposition of a court of equity. — Ct.of 4m)., AprU, 1880. KeHy v. Christal, 81 N. Y. EQUITY I., II. m 4. When trespass instead of an application ifor equitable relief is the proper remeay, where one has entered upon and dug a channel upon the lands of another, see Avery v. Empire Woolen Co., 82 N. Y. 582. 5. Feigned issues. When an issue of fact in an equitable action should be tried by a jury, Brady v. Cochran, 23 Hun 274. 6. Ne-w trial of feigned issues. Where feign-ed issues in an action are tried by a jury, and the judge presiding at the trial neither en- tertains a motion for a new trial nor directs ■exceptions taken at the trial to be heard at the General Term, a motion for a new trial can only be made under the Code of Civ. Pro., {•? 1003,) at the Special Term, where the motion for final judgment is made, and before such judgment. — Ct. of App., March, 1880. Chapin v. Thompson, 80 N. Y. 275. 7. The provision of said code (^ 1005) pro- viding for a motion for a new trial after judg- ment, has reference to a new trial of the action itself, not to a new trial upon the feigned issues ■which may have been awarded therein. lb. II. JUKISDICTION IN PABTICTJLAR CASES. 8. Gancella-tion of instrunaents, generally. The purchaser of lands on sale under execution, after the expiration of a year from the day of sale without redemption, ac- quires an equitable title, which entitles him to maintain an action for the cancellation of instru- ments which, within the definition of courts of equity, are clouds on title. — Ct. of App., Sept., 1880. Remington Paper Co. v. O'Dougherty, 81 JSr. Y. 474. 9. An action to procure the cancellation of a written instrument cannot be maintained, unless some special circumstance exists establishing the necessity of a resort to equity, to prevent an in- jury which might be irreparable, and which equity alone is competent to avert ; it is not suf- :ficient that a defence exists as against the instru- ment, or that evidence mav be lost. — Ct. of App., Bee, 1879. Globe Mut. Life Ins. Co. v. Eeals, 79 N. Y. 202. 10. The circumstance that a security has be- come or is invalid and cannot be enforced, either at law or equity, does not entitle a party to come into a court of equity to have it decreed to be surrendered or extinguished without paying the amount equitably due thereon. — Ct. of App., ■ June, 1880. Tuthill v. Morris, 81 N". Y. 94. li. -^ of deed. In an action by plaintiff as purchaser of certain real estate on sale under ■execution, against defendant P., to have a deed to defendant A. canceled as forged, and to have -certain other conveyances and mortgages can- celed as fraudulent, it appeared that a portion of the lands was sold on execution on a judg- ment against defendant A. The purchasers, -after the time for redemption had eipired, as- signed the certificate of sale to A., who received i;he sheriff''s deed.' Said judgment was prior to that recovered by plaintiffi against P., out his cause of action accrued and the action was com- menced before the incurring of the obligation upon which the prior judgment was rendered. JSeld, that plaintiff was not precluded from al- leging the invalidity of the title of A. ; that his jighls were paramount to those acquired by her under the sale and sheriff's deed. — Ct. of App., Sept., 1880. Remington Paper Co. v. O'Dougli- erty, 81 N. Y. 474. 12. — of mortgage. In February, 1870, one S. and others filed in the insurance depart- ment, a declaration for the organization of the " Peabody Insurance Company," with the certi- ficate of the attorney-general annexed. S. sub- scribed for seventy shares of the stock, and gave therefor three mortgages upon real estate owned by him, which were subsequently assigned by the company to the superintendent of the insu- rance depsirtmept, accompanied by a certificate signed by S., to the effect that there was due and to become due thereon the principal sum, with interest, and that there was no legal or equita- ble defence thereto. The Peabody company being unable to raise the amount required by law to authorize it to commence business, con- solidated with the Farmers' and Mechanics' company, all the stockholders consenting there- to ; one of the plaintiffs, the administrator of S., signing the consent for the stock held by him. Thereafter the mortgages were assigned by the superintendent of the insurance department to the Farmers' and Mechanics' company, and thereafter, by various mesne conveyances, thev came into the hands of the defendant. In ; action by the plaintiffs, the heirs of S., to hai the mortgages canceled on the ground of tl failure of the consideration upon which th< were given — Held, that they were founded up( a valuable consideration, and that there hi been no failure thereof. — Supreme Ct., ( 2d Dept. Dec, 1880. Schenck v. O'jNeill, 23 Hun 209. 13. — of insurance policy. In an actie to procure the cancellation of a policy of life i: surance, the complaint alleged that the polii was obtained by fraud and conspiracy betwec plaintiff's agent and the insured ; that the pr mium was not paid in cash, as required by tl policy, but by the note of the insured, and w; delivered to the latter when he was sick, ( which sickness the insured died. The complaii also averred that plaintiff feared the holder ( the policy would commence an action thereo and by collusion with said agent obtain an a] pearance on its behalf, and from failure i answer, or to duly defend the action, obtain judgment without plaintiff's knowledge, thi preventing plaintiff from presenting its defenc or that defendants would delay bringing an a tion until the evidence of fraud and conspirac was lost. The referee found that there was r fraud ; the other facts were found substantial! as alleged in the complaint. Held, that the con plaint was properly dismissed. Globe Mu Life Ins. Co. v. Eeals, supra. For further decisions as to the Jurisdiction c and Procedure in, courts of equity, see Accottn^ ing; Cloud on Title; Ceeditoe's Sun Disooteby; FjeAUD-; Fbaudulent Conve'! ANCEs; Injubction; Intekpleadee ; B] CEivEKS; Specific PEBroEMANOE : Trust's EQUITY OF REDEMPTION. MOBTGAGES, VII. 100 EREOR. ERROR. 1. Stay of judgment. While, in capital cases, a stay of judgment, pending error, should be granted, where the exceptions are not clearly frivolous, yet in cases not capital it should not be granted, unless, in the opinion of the judge to whom the application is made, there is reason- able ground to believe that error has been com- mitted.— ^/6. Oyer & T., Feb., 1881. People v. O'Eeilly, 9 Abb. N. Gas. 77. 2. The mere possibility of a reversal on a technical ground should not, in such cases, sus- pend the punishment, when the prisoner's moral guilt is clear. lb. 3. TWhat is brought up for review. The office of the writ of error in a criminal ac- tion is to bring up exceptions taken on the trial ; it does not bring up for review questions pre- sented upon a motion in arrest of judgment, as they form no part of the proceedings on trial. — Ot. of App., Oct., 1880. Pontius v. People, 82 N. Y. 339 ; affirming 21 Hun 382. 4. "What errors are ground for re- versal. During the trial of the plaintiff in er- ror upon an indictment, charging him with a con- spiracy to defraud the city, the j udge called one of the jurors and the counsel for the prosecution and the defence into a room, and after showing to the juror an anonymous letter, which stated that the juror had been in the habit of playing cards with the sons of the plaintiff in error, asked him if he knew who wrote it, to which the juror replied that he did not. The judge then said that it was " very embarrassing and unpleasant, and, toward a juror, monstrously unjust, and a serious imputation." The plain- tiffin error was not present, and the judge said, when the counsel for the plaintiff in error at- tempted to speak, that " he did not expect coun- sel to iaake any observations." There was no proof that the facts stated in the letter were true, nor was the juror asked if they were true. Seld, that the conviction should be reversed, as the tendency of this action, by the judge, was to dominate the juror's free will, and terrify him into a verdict for the people. — Supreme Ct., (2d Dept.,) Sept., 1880. People, ex rel. Flaherty, v. Neilson, 22 Hun 1. 5. What errors will be disregarded. Where an indictment contains several counts, some of which are good, the fact that some of the counts are bad does not make a conviction erroneous where the verdict is general. — Ct. of App., Jan., 1881. Hope v. People, 83 N. Y. 418. 6. Harmless or non-prejudiciat er- rors. Mere irregularities in the drawing of grand and petit jurors do not furnish a ground for reversing a conviction, unless it appears that they operated to the injury or prejudice of the prisoner. — Ot. of App., Apnl, 1880. Cox v. Peo- ple, 80 N. Y. 500, 512. 7. Review of discretionary action. Where a cross-examination relates to matters pertinent to the issue, or which tend to discredif a witness, this court cannot interfere, save where there has been an abuse of discretion. — Ct. of App., Jan., 1881. People, ex rel. Phelps, v. Oyer and Terminer, 83 N. Y. 436. 8. Instances. Where, upon the trial of al- leged accessories, after the record of conviction of the principals had been given in evidence on the part of the prosecution, testimony was re- ceived under objection and exception, tending- to show the commission of the crime by the principals — Held, that the question was simply as to the order of proof, which was in the dis- cretion of the trial court. — Gt. of App., March, 1880. Levy v. People, 80 N. Y. 327. 9. The case against the prisoner was made up- of circumstances, among them the acts of the principals, so proved, the character of which gave ground for inference of the prisoner's knowledge. Held, that in the reception of such- testimony the court did not exceed a wise dis- cretion, lb. 10. A telegram was offered in evidence on the part of the people; the district attorney stated he expected to show that the prisoner was once employed where he would have had knowledge of the meaning of certain marks upon it, and that if he did not, by further testi- mony, connect the prisoner with it, he " would consent that the message be stricken out." The prisoner's counsel objected that he was not then connected with it, and to the taking of it, " on the promise to strike it out." The objection was overruled. Held, no error, that it was a mere question as to the order of proof and with- in the discretion of the court. — Ct. of App., Jan.,. 1881. McCarney ■». People, 83 N. Y. 408. 11. The omission of the court, on its own mo- tion, to strike out this evidence upon failure of the prosecution to connect the prisoner with it was not error ; it was for the prisoner to ask to- have the evidence, if he so desired, stricken out, or to request the court to charge the jury to dis- regard it, and his omission to do so was a waiver of his right. lb. 12. A witness for the prisoner was shown, on- cross-eiamination, a copy of a telegram, and was asked if he received it. This was objected to, as having nothing to do with the trial and as immaterial. The objection was overruled. The telegram was not read or offered in evidence. Held, no error. lb. 13. Ordering new trial by court be- low. As to whether a case is to be considered here as res nova under the provision of the act to enlarge the jurisdiction of the Courts of Ses- sions of the city and county of New York (Laws of 1855, ch. 337, § 3, as amended by Laws of 1858, ch. 330,) which authorizes this court in cases coming from the General Sessions to " or- der a new trial, if it shall be satistied that the- verdict against the prisoner was against the weight of evidence," &c., quasre. Levy v. Peo- ple, sapra. As to Taking exceptions, Framing the bill, the Hearing, &c., see, also, Exceptions. i For Oiheir methods of review in criminal cases, see Certioeabi ; New Teial. ESCAPE. As to the powers and duties of officers in re- spect to Arrests, and Custody of persons arrested, see Arkest ; Execution, IL ; Imprisonment ;. Punishment: SHEBirrs. ESTATES.— ESTOPPEL, I., II., III., IV. 101 ESCHEAT. As to the Disaiilities of Aliens to hold land, see Aliens. ESTATES. Remainders. As to whether a remainder in a chattel may be created and given, by the donor's carving out a life estate for himself, and transferring the remainder without any inter- vention of a trustee, qum-e. — Ol. of App., April, 1880. Young v. Young, 80 N. Y. 422. As to the Separate estate of a married woman, flee HtrsBAiTD and Wife, V. As to OPrust estates ; and the rights of the ces- tui que trust, see Tbttsts, III. ESTOPPEL. I. GEtresAii PErNcrpiEs. II. Estoppel by Recosd. m. Estoppel by Deed. IV. Estoppel in Pais. I. Genebal Pbinciples. 1. Estoppels in respect to eorpora- liions. A party who has assumed to contract with a de facto corporation by its corporate name, cannot afterwards, in an action brought by it upon such contract, deny its legal existence. — Supreme Ct., (ith Dept.,) Oct., 1880. Commer- cial Bank of Keokuk v. Pfeiffer, 22 Hun 327. 2. An interested party who contests the valid- ity of a bequest to a voluntary unincorporated society, is not estopped from denying its incor- poration by the fact that the testator, in his life- time, had dealt with the association, and had conveyed land to it for a valuable consideration. — Monroe Co. Surr. Ct., July, 1880. Lutheran Eeform Church v. Moak, 4 Kedf. 513. II. Estoppel by Eecobd. 3. What ■will raise an estoppel, gene- rally. When a party accepts the tests of the measure of damages insisted upon by the oppo- site party and makes proof in accordance there- with, the latter cannot insist that it is not the true measure. — Ct. of App., Jan , 1881. Taylor v. Mayor, &c., of New York, ti3 N. Y. 625. 4. Estoppel toy recitals in affidavits. B. executed to N., without consideration, a bond and mortgage for $20,000, which defendant P. purchased for $16,000, upon the faith of an affi- davit made by B. to the effect that the consider- ation expressed was the true consideration ; B. afterward sold the mortgaged premises subject to tlie mortgage, which the purchaser assumed, -and defendants sold and assigned the securities for their face. Plaintiffs, as judgment creditors of B., brought this action to reach the excess of the proceeds of sale, over the amount paid by P. -■for the securities, on the tlieory that the excess was held under an implied trust for B., and that J. was bound to account to him therefor. No question of usury was raised. Held, that the action was not maintainable; that B. was es- topped by the statements in his affidavit from denying their truth ; and that the effect of the estoppel was not limited to the mere purpose of protecting P. to the extent of the money ad- vanced by him. — Gt. of App., April, 1880. Griss- ler V. Powers, 81 N. Y. 57. 5. — by stipulations. A stipulation that copies of letters might be produced with affidavit of mailing with the same effect as originals, and that the party would not controvert the contents of letters thus proved, does not preclude the party from showing that the letters were not received. — Ct. of App., Dec., 1880. Lockwood v. Quackenbush, 83 N. Y. 607. III. Estoppel by Deed. 6. When a mortgage ■will operate as an estoppel. When a mortgagor cannot set up the invalidity of a mortgage, as against one whom he has induced to purchase it, see Bamett V. Zacharias, 24 Hun 304; Schenck v. O'Neill, 23 Id. 209. 7. When a mortgagor is estopped from en- forcing an agreement upon which the mortgage was given, as against an assignee thereof ; and when one for whose benefit the mortgage was given is also estopped, see First Nat. Bank of Corry v. Siles, 22 Hun 339. 8. When one who has assumed the payment of a mortgage is estopped from disputing the amount due thereon, see Root v. Wright, 21 Hun 344. 9. When it ■will not so operate. The assignor of a mortgage is not estopped, by a guaranty of payment, from setting up the inva- lidity of the mortgage, where the assignee had knowledge of the facts which are relied upon to render it void. — Buff. Superior Ct., Deo., 1879. Fellows V. Wallace, 8 Abb. N. Cas. 351. 10. Where, after giving a mortgage to secure a usurious loan, the mortgagor subsequently executes to the mortgagee, who still holds the mortgage, a general assignment of all his pro- perty in trust to pay his debts, and in an inven- tory of his property and debts, subsequently made thereunder, recognizes the mortgage as a valid lien, and the debt it was given to secure as a valid debt, he is not thereby estopped from setting up the defence of usury in an action brought to foreclose the mortgage, by the mort- gagee or his assignee, where there is no proof that the latter took the assignment on the faith of such recognition. — Supreme Ct., {3d Dept.,) Nov., 1880. Chapin v. Thompson, 23 Hun 12 IV. Estoppel in Pais. 11. Ho'W created, generally. When a mistake which is not calculated to mislead will not ■(vork an estoppel, although it does affect the conduct of a parly to his injury, see Howe Machine Co. v. Farrington, 82 N. Y. 121. 12. Ho-w far the facts out of -which the estoppel arises must toe relied upon, or acted on. Conduct of one party is an estoppel upon him only when it induces ac- tion in another, which cannot be withdrawn from without loss. — Ct. of App., Sept., 1880. Waring v. Somborn, 82 N. Y. 604. 13. Before a party can be estopped by his statement from asserting the truth, it must ap- 102- ESTOPPEL, IV.— EVIDENCE, I. pear that the one claiming the estoppel has acted or rested upon such statements, and that he will suffer loss -if they are not conclusively held to be true.— Ci!. of App., Oct., 1880. Wine- gar V. Fowler, 82 N. Y. 315. 14. Plaintiff owned certain furniture, which he had let to B., and which was in a house occu- pied by her, and in her use and possession ; she was indebted to defendant F., and to secure him gave him a mortgage on the furniture, repre- senting that it belonged to her. Thereafter B., in the presence of plaintiff, asked F. for per- mission to remove the furniture. After the removal, F. asked plaintiff how the furniture fared in the removal, to which plaintiff replied, " Your furniture is all right," and at other con- versations spoke of the furniture as B.'s, and when the mortgage -was referred to, spoke of F.'s claims as all light, saying nothing of his owner- ship. F., after notice of plaintiff's title, took the furniture by virtue of his mortgage. In an action to recover possession — Sdd, that plaintiff was not estopped from claiming title, as it did not appear that F. parted with any value, ^ave up any right, or in any way altered his position, or acted in reliance upon anything said by plaintiff. lb, 15. Agreements, -written and oral. When a debtor who has agreed that certain arti- cles shall be sold under an execution against him as personal property, is estopped from after- wards claiming that such articles were in fact a part of the realty, see Bennett v. Bagley, 22 Hun 408. 16. In an action of ejectment, plaintiff claim- ed under a sheriff's deed on sale on execution against T., who thenk owned the legal title. Summary proceedings were instituted to remove T. and defendant, which resulted in an adjudi- cation in favoi; of the judgment creditor, and a warrant of removal was issued. T. thereupon took a lease of the premises, and defendant exe- cuted a contract, whereby he agreed not to take any advantage of the possession of T. under the lease, until the proceedings were reversed. The judgment creditor, in consequence, refrained from executing his warrant. Held, that while occu- pying this position the defendant, as well as T., was estopped from denying plaintiff's title. — Ct. of App., Jan., 1880. Territt v. Cowenhoven, 79 N. Y. 400. 17. False representations. As a gen- eral rule, an estoppel, created by a false repre- sentation acted upon, is commensurate with the thing represented, and operates to put the party entitled to the benefit of the estoppel in the same position as if the thing represented was true. — Ot. of App., April., 1880. Grissler v. Powers, 81 N. Y. 57, 61. 18. Silence. To sustain an estoppel be- cause of omission to speak, there must be both the specific opportunity and the apparent duty to speak ; the party maintaining silence must have known that some one was relying thereon, and was either acting or about to act as he would not have done had the truth been told. — Ct. of App., Sept., 1880. Viele v. Judson, 82 N. Y. 32 ; reversing 15 Hun 328. 19. Where one has wrongfully taken the pro- perty of another and sold it, not as agent, but on his own account, mere silence upon the part of the owner does not confirm the sale ; the con- firmation must rest upon some consideration upholding it, or upon an estoppel. The owner, upon discovery of the wrong, is not required to- make immediate efforts to regain his property, and silence, short of the time prescribed by the- statute of limitations, will not bar his claim. — Ct. of App., Oct., 1880. Hamlin v. Sears, 82 N. Y. 327. As to the effect of a Judgment in a prior action as an estoppel, see Judgment, III. EVICTION. Ejectment ; Landlobd and Tenant ; Tenajits in Common; Vendoe and Pub- chaser. EVIDENCE. I. The Necessity and Suiticiency of" Evidence. 1. General principles. 2. Judicial notice. 3. Presumptions. 4. Best and secondary evidence. 5. Hearsay eindence. 6. Mes geslcB. 7. Burden, of proof. II. Parol Evidence to Affect Written Instruments. in. Admissions, Declarations, and Con- fessions. 1. In civil actions. 2. In eriminaX cases. rv Documentary Evidence. 1. In general. 2. Judgments, records, and judicial pro- ceedings. 3. Statutes, public doewments, and official certificates. 4. Other documentary eindence. 1. The Necessity and Sufficiency of Evi- dence. 1. General principles. ^ _ 1. Admissibility, generally. In an ac- tion against attoineys, to recover for the services- of a stenographer, plaintiff offered to show that at the time of an interview between defendant* and the stenographer, after the services were performed, in reference to the bill, defendants' client had escaped from prison and that the newspapers contained the announcement of his escape. The evidence was objected to and ex- cluded. Held, no error.— O!. of App., June, 1880. Bonynge J). Field, 81 N. Y. 159, 163. 2. Plaintiff offered to prove previous dealings- of the stenographer with defendants when ser- vices were performed on like retainers, bills- furnished to defendants, and payments madeby^ them. Held, that the testimony was properly- rejected, lb. EVIDENCE, I. 103 3. As to the admissibility of evidence to prove the value of a chattel, see Armitage v. Mace, 46 Superior 550. 4. Evidence -wliioli appeals to the senses. In an action for injuries to the per- son, caused by negligence of defendant, it is not error to allow the plaintiff to exhibit to the jury the injured limb, e g., an arm which has been crushed by machinery. — Superior Ct., Nov.,lS80. Jordan v. Bowen, 46 Superior 355. 5. Plrotograplis. On the trial of the manager of a charitable institution for cruelty to a child, the prosecution offered in evidence pho- to tographs of the child, one taken before he went to the institution, and others taken about two weeks after he was taken away. It was proved that said photographs were accurate pictures as the child appeared at the times they were taken ; also, that the child improved in condition after he was taken from the prisoner's custody and before the last photographs were taken. These were reoeiv'ed under a general objection. Held, no error. — Ct. of App., Jan., 1881. Cowley v. People, 83 N. Y. 464 ; affirming 21 Hun 415. 6. Photographic pictures, when shown to be correct resemblances of the person or thing represented, are competent as evidence. lb. 2. Judicial notice. y. Of what the courts -will take judi- cial notice. The courts will take judicial notice of the general course of business in a community, including the universal practice of banks. — Ct. of App., Jan., 1881. Merchants' Nat. Bank v. Hall, 83 N. Y. 338. 8. It seems that the court will take judicial notice of the nature of the business and the office of mercantile agencies. — Ct. of App., Nov., 1880. Eaton, Cole, &c., Co. v. Avery, 83 N. Y. 31 ; affirming 18 Hun 44. 9. "What matters will not be judi- cially noticed. The courts of this state will not take judicial notice of any laws of another state not according to the common law. There- fore — Meld, that as it was not illegal at common law to make a bet or wager on the result of a horse-race, an agreement to drive a horse in a contest of speed for a wager or stakes, or for a purse, prize or premium in another state, was not prima facie illegal or against the policy of this state. — Ct. of App., Sept., 1880. Harris v. White, 81 N. Y. 534. 10. The courts will not take judicial notice of the street numbers of dwelling-houses. People, ex reJ. Gilmore v. Callahan, 23 Hun 581. Nor of the values of foreign coins. Sanabria V. People, 24 Hun 270. 3. Premnyptions. 11. In favor of lawfulness of corpo- rate acts. In the absence of evidence to the contrary, a corporation, in increasing its stock, will be presumed to have acted in conformity with its corporate powers and its articles of association. — Superior Ct., (Sp. T.,) June, 1881. Williams v. Western Union Teleg. Co., 9 Abb. N. Cas. 437. 12. As to laws of other states and countries. In the absence of proof it will not be presumed that the law of marriage of another country is different from that of this state. — Ct. of App., Sept., 1880. Hynes v. McDermott, 82 N. Y. 41 ; affirming 7 Daly 513. que w; 13. As to whether the courts of a state, in the absence of proof and allegations to the contrary, are required to presume that the statute laws of another state are like those of their own state, luoere.—Ct. of App., Sept., 1880. Harris v.- hite, 81 N. Y. 632, 54£_ Such a presumption will not be made of a statute imposing a penalty or forfeiture. lb. 14. As to jurisdiction of foreign courts. In an action upon a judgment of a Dis- trict Court of California, it appeared by the j udg- ment-record that the defendant brought an action in that court and recovered a judgment, which was reversed by the Supreme Court and remitted to the District Court, with directions to allow a counter-claim ; in pursuance of which direction, the judgment in question was rendered. It was objected that the record contained no notice of appeal, and so showed no jurisdiction in the Su- preme Court. Seld, untenable; that the Su- preme Court having, under the constitution of California, general appellate jurisdiction of judg- ments of the District Courts, and having enter- tained and acted upon the appeal, jurisdiction by proper notice was to be presumed ; also that the attorneys for the plaintiff in that action ap- peared in the appellate court.— Ci. of App., March, 1880 Pacific Pneumatic Gfas Co. v. Wheelock, 80 N. Y. 278. 15. As to national character of ves- sel. One of the requests declined was that the presumption is, as the vessel sailed from an English port, she was an English vessel. Held, that the court properly refused so to charge. Hynes v. McDermott, supra. 16. Witli respect to intent A person furnishing information to a mercantile agency as to his means and pecuniary responsibility, is to be presumed to have done so to enable the agency to communicate the information to per- sons interested, for their guidance in giving credit to him. — Ct. of App., Nov., 1880. Eaton, Cole, &c., Co. V. Avery, 83 N. Y. 31. 17. Relative to death. As to the pre- sumption of death arising from absence, unheard of, for seven years, see Keller v. Stuck, 4 Eedf. 294. 18. As to delivery of forged instru- ment. In respect to a forged instrument there is no presumption of delivery at its date or at any particiilar time. — Ct. of App., Sept., 1880. Remington Paper Co. v. O'Dougherty, 81 N. Y. 424. 4. Best and secondary emdence. 19. Sufaciency of notice to produce best evidence. When the pleadings give no- tice to a party to be prepared to produce a writ- ing, if necessary to contradict the evidence of the opposite party, secondary evidence of the contents of the writing may be given by the lat- ter without further notice. — Ct. of App., April, 1880. Lawson v. Bachman, 81 N. Y. 616. 20. Effect of refusal or failure to produce. The fact that a party declines to comply with a notice to produce, does not make the subsequent admission of a paper offered by such party, substantially diffeiing in its terms from the one called for, although bearing on the same subject matter, error calling for a reversal. —Superior Ct., Feb., 1880. Scott v. Sanford, 46 Superior 544. 104 EVIDENCE, I., II. 21. The plaintiff notified the defendants to produce a letter written to them. Upon the trial the defendants offered to prove that they had delivered it to their assignee in bankruptcy, ' but did not show who he was, or where he resided, nor that they had made any effort to produce it, or even that they had notified the plaintiff that they had parted with it. Seld, that it was proper to allow the plaintiff to give parol evidence of the contents of the letter. — Supreme Ct., (Isi JDqit.,) Nov., 1880. Naugatuck Cutlery Co. v. Babcock 22 Hun 481. 5. Searsay evidence. 22. "WTiat evidence is hearsay, and inadmissible. A letter from a person other than the accused, stating that the writer had committed the crime in question, is inadmissible as being hearsay. And verbal declarations of another person to the same effect are also inad- missible, where they amount to a mere narrative of past events, and are therefore not admissible as res gestoe, — Supreme Ct., (ilh Dept.,) Jan., 1881. Greenfield v. People, 23 Hun 454. 23. Upon the trial of an action on a life pol- icy, a brother of the deceased was called by the plaintiff, and testified that he himself was sub- ject to attacks of disease, during which he re- mained unconscious for half an hour, or there- abouts. He was then asked whether he knew from the statements of others what he did while thus unconscious. Held, that the evidence was inadmissible, as being merely hearsay. — Supreme Ct., (3d Dept.,) Sept., 1880. Hagadorn „. Con- necticut Mut. Life Ins. Co., 22 Hun 249. 6. Bes gestcB. 24. In civil cases. As to what statements made by an agent of the party sought to be charged are admissible as a part of the res gestce, see McGraw v. Tatham, 84 N. Y. 677. 25. What statements of a party are admissi- ble as part of the res gestce, see Sickles v. Eich- ardson, 23 Hun 559. 26. In criminal oases. As to what decla- rations are inadmissible as a part of the res gestae, on a trial for murder, see People v. Greenfield, 23 Hun 454. 467. 7. Burden of proof. 27. In action against carrier. In an action against a common carrier for loss of goods, alleged to have occurred by the negligence of the carrier, the burden of proof as to the deliv- ery of the goods is on the plaintiff. — Superior Ct., June, 1880. Canfield v. Baltimore, Ac, E. E. Co., 46 Superior 238. 28. — on insurance policy. In an action on an insurance policy, the answer admitted the issuing, but alleged, as a breach of the con- ditions of the policy, that the insured died in consequence of a violation of the laws of the state. Held, that the burden of proof was upon the defendant.— Ct. of App., April, 1881. Mur- ray V. New York Life Ins. Co., 9 Abb. N. Cas. 309. 29. — bet-ween master and servant. An employer is bound to exercise due care and diligence in furnisliing for the use of his em- ployees fit and safe implements and machinery, but is not a guarantor of their safety ; and in an action by an employee for alleged neglect to per- form this duty, the onus is upon the plaintiff to show negligence.— a. of App., Nov., 1880. Pain- ton V. Northern Central E'y Co., 83 N. Y. 7. 30. — principal and agent. "Where an agent or trustee has mingled his principal's property with his own, the burden of proof is on him, his creditors, and their representatives, to distinguish his own from the trust property. — Ct. of App,, 1880. Hooley v. Gieve, 9 Abb. N. Cas. 8. II. Parol Evidence to affect Weitten Instruments. 31. Limits and exceptions to the rule excluding it. Parol proof of the relationship existing between the grantor and the grantee may be properly admitted to show that the requisite consideratidn existed to support the deed.— (Supreme Ct., (ith Dept.,) April, 1881. Eysaman v. Eysaman, 24 Hun 430. 32. In an action by plainliffl, as assignees of common carriers of the freight on a cargo of staves, shipped by defendants from T. to N. Y., plaintiffi, for the expressed purpose of proving ownership of the cause of action, offered in evi- dence the bill of lading, executed about six years before the trial, indorsed by the carrier to a bank as security for plaintiffs' accceptance and payment of an accompanying draft ; also, with an indorsement thereon, signed by the bank and directed to plaintiffs, as follows : " Upon yoiu- acceptance of the draft, the bill of lading is placed in your custody to collect and apply the first proceeds in payment of the draft." This evidence was rejected. Plaintiffi also offered to prove by parol an acceptance which was re- jected. Held, error ; that the presumption from the possession of the draft was that plaintiffs had complied with the condition precedent, i. e., the acceptance of the draft ; that, although plain- tiffs could not be charged as acceptors without showing a written acceptance, yet, as defendants were not parties to the draft, or privies, and the fact of acceptance was collateral to the issues herein, it might be proved by parol. — Ct. of App., Nov., 1880. Sprague v. Hosmer, 82 N. Y. 466. 33. Sho"wing surrounding circum- stances as proof of intent. Where a particular fund to accrue in fuluro is designated in the instrument, and the language thereof is ambiguous, evidence of the surrounding circum- stances may be resorted to for the purpose of determining whether the intention was that the payment should only be made out of the designated fund, or whether the direction to pay was intended to be absolute, and the fund was mentioned only as a means of reim- bursement.— 0«. of App., Sept., 1880. Brill v. Tuttle, 81 N. Y. 454. 34. Sho-wlng an independent or col- lateral agreement. The rule prohibiting the reception of parol evidence, varying or modifying a written agreement, does not apply to a collateral undertaking. Such fact is always open to inquiry, and may be proved by parol. — Herkimer Co. Ct., April, 1881. Lanphire v. Slaughter, 61 How. Pr. 36. See, also. Bates v. First Nat. Bank of Brockport, 23 Hun 420;. Duparquel v. Knubel, 24 Id. 653. 35. Defendant D. executed to plaintiff an as- signment under seal of a bond and mortgage, which contained a guaranty of payment of the EVIDENCE, IL, III. 105 •nmount secured, in case of the failure of the raortgagors to pay. In an action to foreclose ithe mortgage, D. was sought to be charged with any deficiency. He alleged and oiFered to prove Ihat at the time of the execution of the assign- ment, plaintiff, in oonsideralion of being per- mitted to retain $300 out of the purchase money, and of the assignment to him of a policy of insurance upon a building oi^ the premises, agreed by parol to keep the building insured until the mortgage became due, that she did not e!pt.,) March, 1881. Byle v. Falk, 24 Hun 255 ; S. C, 60 How. Pr. 516. in. Payment. Satisfaction. Disohaege. IV. Eelibf against Executions. 23. Motion to vacate. June 15th, 1860, the plaintiff's attorney issued an execution upon a judgment recovered on that day against the defendant, which was on August 5th, 1860, returned unsatisfied. On April 16th, 1877, the same attorney, without any application to the court, issued a second execution upon the judg- ment, indorsed by him as the plaintiff's attor- ney, under which certain premises belonging to the defendant were, on June 8th, 1877, sold, and thereafter, and in September, 1878, conveyed to the purchasers. The plaintiff died in February, 1870, and letters of administration were duly issued upon his estate. Prior to his death he had assigned the judgment to his attorney as security for certain costs owing to him. Upon an application, made by persons who had pur- chased the premises from the defendant shortly before the issuing of the second execution, to EXECUTIOlSr, IV., V. Ill •vacate and set it aside, together with all the proceedings had thereunder — Held, 1. That the execution was irregularly- issued, and that the application should he granted. 2. That the question as to whether or not the conveyance to the applicants was made with the i ntent to defraud the creditors of the judgment debtor could not be determined upon tifiis appli- cation. — Smremi Ct., {1st Dept.,) March, 1881. Duryee v. Botsford, 24 Hun 317. V. PkOCEBDINGS SUPPIiEMENTARY TO EXB- CDTION. 24. Jurisdiction. The Supreme Court is not deprived of jurisdiction in cases of supple- mentary proceedings by Code of Civ. Pro., § 2434.— %wme Ct., (Ist Dept.,) Jidy, 1881. Baldwin v. Perry, 61 How. Pr. 289. 25. In an order to examine a non-resident of the county upon supplementary proceedings, in an action in the Marine Court of the city of New York, it must appear that the defendant has, within the city, an office for the regular transaction of business in person, as contradis- tinguished from cases where he transacts the same through agents. — Marine Ct., (1%. T.,) Sept, 1880. Brown v. Gump, 59 How. Pr. 507. 26. Upon what judgment proceed- ings may be taken. Under Code of Pro., I 292, supplementary proceedings cannot be in- stituted where a transcript of a justice's judg- ment for less than $25, exclusive of costs, has been filed, and an execution issued thereon has been returned unsatisfied.* — Supreme Ct., (2d Dept.,) Sept., 1880. Wolf v. Jordan, 22 Hun 108. 27. Code of Civ. Pro., § 2458, providing that proceedings supplementary to execution cannot be instituted upon a judgment recovered for costs only, does not apply to a case where such a judgment was recovered, and an execution issued thereon was returned unsatisfied prior to September 1st, 1880. — Supreme Ct., {1st Dept.,) April, 1881. Bean v. Tonnelle, 24 Hun 353; S. C, 1 Civ. Pro. 33. 28. Necessity of exbaueting rem- edy by execution. "Where, upon the exam- ination of a judgment debtor in supplementary proceedings, it appears that he has an estate in land, as a tenant by the curtesy, and it is not shown that an execution has been issued and re- turned upon the judgment since he acquired the said estate, a receiver to sell the same should not be appointed, but the creditor should issue an execution upon his judgment and sell the debtor's estate thereunder. — Supreme Ct., {2d Dept.,) May, 1880. Bunu v. Daly, 24 Hun 526. 29. Second examination. Upon an application to vacate an order made herein, on February 13th, 1880, directing the defendant to appear and be examined in proceedings supple- mentary to execution, it was shown that the defendant had already been eiamined herein, in pursuance of an order made on June 17th, 1872, and that such examination had been completed, and a receiver appointed. The affi- davit upon which the second order was granted made no reference to the previous application. Held, that the order was properly set aside for *Trnder Code of Oiv. Pro., g 2458, the judgment must, in all cases, be for a sum not leas than 825, ex- clusive of costs. that reason. — Supreme Ct., {1st Dept.,) May, 1880. Grocers' Bank v. Bayaud, 21 Hun 203. Qucere, as to whether a second application to examine a judgment debtor may be made ex parte, or whether notice thereof must be given. lb. 30. The failure of the applicant to show, as required by General Rule No. 25, that no pre- vious application for the order has been made is an irregularity which authorizes but does not compel the court to refuse to grant the order or to vacate it after it has been granted. Bean v. Tonelle, supra. 31. Appointment of receiver — notice. A defendant who has appeared before a referee and been examined, in pursuance of an order made in proceedings supplementary to execution, is entitled to a written notice of an application for the appointment of a receiver ; a verbal notice that such an application will be made, given at the close of the examination, is not sufficient. — Supreme Ct., {3d Dept.,) Sept., 1880. Ashley v. Turner, 22 Hun 226. 32. In a proceeding for the examination of a third party, a receiver cannot be appointed without notice to the judgment debtor.— Com. Pleas, Dec., 1880. Morgan v. Von Kohnstamm, 60 How. Pr. 161. 33. There was no authority under the former code for the appointment of a receiver in a pro- ceeding for the examination of a third party, alleged to have property of, or to be indebted to the judgment debtor. A receiver could be ap- pointed only in a proceeding instituted for the examination of a judgment debtor. lb. 34. By the provisions of Code of Civ. Pro., § 2464, a receiver cannot be appointed before an order or warrant to be examined, is served upon the judgment debtor, without ten days' notice to the judgment debtor, unless he cannot, after due diligence, be found in the state. lb, 35. Rights and powers of receiv- er. A receiver in supplementary proceedings may employ on his behalf the attorney of the party for whose benefit the proceedings are in- stituted.— disbursed large sums on account of the expenses of sale ; that plaintiff advanced to him, for the purpose of defraying expenses, the sums mentioned in the •complaint ; and, as matter of law, said referee found that said advances were for the benefit and at the request of all the defendants, and that they were liable. Held, that the conclu- sions of law were not authorized by the findings of fact ; that from the facts that F. conducted the business, and that plaintiff advanced moneys to defray expenses, it did not follow as a neces- sary or logical result that defendants reaped any benefit therefrom, or requested plaintiff to make the advances, lb. 51. Liability for acts of co-execu- tor. The rule that each of several co-execu- tors is only liable for his own acts, and cannot be made responsible for the negligence or waste of another, unless he in some manner aided or concurred therein, applies as well where the ex- ecutors are also trustees. Ormiston v, Olcott, mpra. 52. Two executors, having, in pursuance of a power of sale contained in a will, executed a •contract for the sale of certain real estate, the purchaser made a payment thereon, by laying the money upon a table in the presence of both of the executors, one of whom picked np the money and put it in his pocket, and the other of whom signed a receipt, in his name alone, which was indorsed upon the back of the contract. The executor who took up the money was insolvent and known to his co-executor to be so. Held, that the executor so signing the receipt was liable for the amount so received by his co-ex- ecutor. — Supreme Ct., (3d Dept.,) Nov., 1880. Croft V. Williams, 23 Hun 102, 53. Although, when all of the executors join in the execution of a power of sale conferred by a will, each is, as a general rule, only liable for the application of so much of the money received therefrom as actually comes into his possession or under his control, yet where one executor, knowing that his co-executor is in embarrassed circumstances and insolvent, allows the avails of such a sale to go into his hands, he is guilty of such negligence and want of care as to render him liable for the amount so received. lb. 54. What evidence that money came into the possession of an executor is sufficient to charge him therewith, considered. lb. 55. Executors who were ordered by the sur- rogate to have certain securities of the estate registered in their joint names, repeatedly re- quested their co-executor to have them so reg- istered, but on his failure to do so, neglected to enforce, by legal proceedings, observance of the order, or to bring the matter to the notice of the surrogate. Held, that they were liable for their co-executor's misappropriation of the se- curities. — Kings Co. Surr. Ct., Oct., 1880. Mat- ter of McDonald, 4 Eedf 321. 56. Devastavit. As to what amounts to a devastavit, and the liabilities of an executor therefor, see Whitney v. Phoenix, 4 Kedf. 180 ; Eorke v. M'Conville, Id. 291 ; Matter of Mac- donald, Id. 321. 2. Payment of debts, legacies, &c. Distribution. 57. General Principles'. An executor who pays legacies and debts in full, before as- certaining the whole amount of the claims of creditors, does so at his peril, — Westchester Co. Swrr. Ct., Jan., 1881. Glaoius v. Fogel, 4 Eedf. 516. 58. An administrator with the will annexed, is not authorized to pay the expenses of lunacy proceedings instituted against the widow and sole legatee of the decedent. — N. Y. Surr. Ct., Jan., 1881 . Underhill v. Newburger, 4 Eedf. 499. 59. Marshalling assets. The failure of the holder of a note, who has fixed the in- dorser by a regular demand and notice, to pur- sue the maker with diligence, will not discharge the estate of the indorser from liability on 'the note. If, in such a case, the indorser's estate is insolvent, the ordinary rule as to marshalling assets, respecting creditors who have two or more funds to resort to, does not apply. — N. Y. Swrr. C(., Oct., 1879. White v. Gardner, 4 Eedf 71. 60. Where there is a gift of the income of a fund, the taxes imposed thereon and expenses of the trust must be paid out of the income; but in the case of an annuity, no deduction can 116 EXECUTORS AND ADMINISTRATORS, III. he made, but all taxes and expenses must be paid out of the estate.— iV. Y. Sv/rr. Cl., Dec., 1879. Stubbs v. Stubbs, 4 Eedf. 170. 61. "What claims should be allo-wed. "Where it appears that a daughter, residing with her mother, has, during her life-time, promised to pay board, and that other mernbers of the family were charged for and paid board, a claim against the estate of the daughter for unpaid board should be allowed.— iff. Y. Surr. Ct., May, 1880. Valentine v. Valentine, 4 Bedf. 265. 62. Preferred claims. A judgment for deficiency against the representatives is not a preferred claim under 3 Key. Stat. 95, (6th ed.) I 37. That section applies only to judgments against the deceased, personally. — JV". Y. Surr. a., March, 1880. James v. Beesly, 4 Eedf 236. 63. Bights of representative -who is himself a creditor of the estate. An administrator's claim against the estate, if objected to, must be proved to be allowed by the surrogate, under 3 Kev. Stat., 96, (6th ed.) g 43. The administrator's afiBdavit, verifying his claim, does not amount to "proof" of the same. The existence of the debt must be es- tablished by legal evidence. — 2f. Y. Surr. Ct., Jan., 1881. Underhill v. Newburger, 4 Kedf. 499. 64. The surrogate has power under 3 Eev. Stat. 96 (6th ed.,) ^ 44, to pass upon the claim of a personal representative against the estate, either in proceedings taken to establish the claim, or upon final accounting of the repre- sentative, although such claim is contested by the next-of-kin. Such a claim, being disputed on the final accounting, it is not analagous to a claim disputed under the statute, by the repre- sentatives of the estate. — N. Y. Surr. Ct., April, 1880. Ban-as v. Barras, 4 Redf. 263. 65. As to the allowance of a claim by an ad- ministratrix against the estate, for nursing the deceased, (her brother,) see Kellet v. Stuck, 4 Eedf. 294. Compare Wood v. Eusco, Id. 380. 66. Publication of notice to credi- tors. The provisions of the Eevised Statutes (2 Eev. Stat. 88, §? 34, et sea.,) in reference to publication by executors and administrators of notice to those having claims against the de- ceased, to exhibit them, and the provision (? 38) limiting the time for commencing suits upon claims disputed or rejected, include claims which are contingent, as well as those where the liability is certain and fixed. — Ct. of App., Dec., 1879.^ Comes v. Wilkin, 79 N. Y. 129; affirming 14 Hun 428. 67. Plaintiff and B., defendant's testator, were co-sureties upon an undertaking given on appeal ; the j udgment appealed from was affirmed July 5th, 1873 ; an action was commenced against plaintiff August 28th, 1873 ; judgment was perfected therein against him September 17th, 1873, which he paid Nov. 11th, 1873. De- fendant obtained an order for the publication of notice to creditors September 13th, 1873, and such notice was on that day published. Plaintiff served upon defendant a claim for con- tribution, April 15th, 1874, which was immedi- ately rejected. This action upon such claim was commenced November 27th, 1876. Held, 1. That the six months' limitation, pre- scribed in said statute, applied to the claim • that the fact that the first publication of notice was prior to the establishment of plaintiff's lia- bility was immaterial ; and that the action was- barred. . 2. That an omission of a middle letter in th& name of the testator, in the notice published, was immaterial ; and that this was so, although there was a person living of the same name as that published, as the law recognizes but one Christian name, and as it did not mislead. lb. 68. Reference of disputed claims. Disqualifloation of referee. While the appointment of a referee as a judge of the_ court pending the reference of a claim to him as referee disqualifies him, yet the case may be re- ferred back to him after his term of office as judge has expired. — Supreme Ct., (ith Dept.,) April, 1880. Countryman J). Norton, 21 Hun 17. 69. Appeal from judgment on ref- eree's report. A party who appears and unsuccessfully opposes a motion for the con- firmation of the report of a referee, appointed, in pursuance of the statute to pass upon a claim against the estate of a deceased person, may appeal from the judgment entered thereon without first moving at a Special Term for a new trial upon a case and exceptions. — Supreme Ct.,. {4th Dept.,) Jan., 1881. Kellogg v. Clark, 23 Hun 393. 70. New trial of referred claims. Where a judgment has been entered upon an order confirming the report of a referee, to- whom disputed claims against an estate have been referred in pursuance of sections 36 and 37 of 2 Eev. Stat. 88, the court may, upon a motion- made upon a case prepared and settled as re- quired by the Code of Civil Procedure, set aside- the judgment and grant a new trial. — Suprerm a., (2d Dept.,) Dec., 1880. Young v. Cuddy, 23 Hun 249. 71. Remedy of creditor -w-here estate is insol-vent. The proper proceeding by a creditor to obtain payment of a proportional part of his debt, where the estate is insolvent, is to compel a judicial settlement of the account of the executor or administrator, as the case may be ; all the parties interested will then be before the court, and will be bound by the pro^ ceedings taken to ascertain the proportional share of the surplus, which will be directed by the decree to be paid to each. — Kings Co. Surr.. a., Oct., 1880. McKeown v. Fagan, 4 Eedf. 320. 72. Payment of legacies — distribu- tion. Pending a contest over the probate of a will, the surrogate cannot, under 3 Eev. Stat. (6th ed.,) g 98, upon petition of a legatee or dis- tributee, order payment of a portion of such legacy or share necessary for petitioner's sup- port. UntU the validity of the will is estab- lished, the petitioner is not entitled to any legacy or distributive share. — N. Y. Surr. Ct.,. Oct., 1880. Eiegelman v. Eiegelman, 4 Bedf 492. 73. Payment of legacies or other claims will not be ordered while the judicial settlement of an account is pending, without some very goodi reason therefor. — Kings Co. Surr. Ct., Jime, 1881. In re Harris, 1 Civ. Pro. 162. 3. Sale of lands for payment of debts. 74. Time -within -w-hicb to apply for- the order. Upon an application by a creditor of one deceased, for an order directing land de- vised to be sold to pay the decedent's debts,- judgment creditors of the devisee may set up- EXECUTOES AND ADMINISTRATORS, III. 117 Ihe statute of limitations as a defence, though the devisee himself does not appear or oppose the application. — Suprme Ot., (2d^Dept.,) bee., 3 880. Eaynor v. Gordon, 23 Hun 264. 75. Such proceedings cannot be maintained ■when an action on the original debt would not then lie. The fact that a judgment was recov- ered against the executor, who was also the de- visee, before an action on the debt was barred by the statute, will not enable the creditor of ■the decedent to maintain the proceedings. 76. 76. November 30th, 1872, one C. died, intes- tate, leaving him surviving a daughter, his only child and heir-at-law, to whom certain real es- tate of which he was seized, descended, and of which she took possession. Thereafter, and on April 29th, 1876, she mortgaged a part of the real estate to one B., who thereafter assigned the mortgage to the defendant Chapman, who, on -January 20th, 1880, commenced a statutory fore- closure thereof. On December 30th, 1879, letters of administration upon the estate of C. were, for "the first time, issued to the plaintiff, as a credi- tor ; the intestate having been indebted to him upon certain notes, the interest upon which had Tap to that time been paid by the daughter. On -April 6th, 1880, the plaintiff instituted proceed- ings to have the land mortgaged, leased or sold, ■for the payment of the intestate's debts, and on -April 21st, brought this action to have the de- fendant restrained from proceeding with the foreclosure of his mortgage. Held, that the -action could not be maintained. — Supreme Ot., iSd Dept.,) Nov., 1880. Fonda v. Chapman, 23 Hun 119. 77. Laws of 1869, ch. 845, as amended by Laws of 1873, ch. 211, providing that no real -estate, the title to which shall have passed out of any heir or devisee, by conveyance or other- wise, to a purchaser in good faith and for value, ■should be sold unless letters have been applied for within four years from the death, nor unless ■an application for a sale has been made within three years after the granting of letters, applies to and protects one taking a mortgage upon the jeal estate, within the times therein specified, provided the said time has elapsed before pro- ceedings to sell the land for debts have been commenced. lb. 78. As to what lapse of time will bar a cred- itor's application to sell lands of a decedent to pay his debts, see Mead v. Jenkins, 4 Redf. 369. 79. The petition. As to the requisites and sufSciency of a creditor's petition for the •sale of the lands of a decedent to pay his debts, see Mead v. Sherwood, 4 Eedf. 352. 80. Order to sho^w cause. Where, in proceedings by administrators for the sale of real estate to pay debts, the order of the surro- gate directing persons interested in the estate to show cause, etc., is made returnable in less time thau is required by statute (2 Eev. Stat. 101, J 5,) i. e., six weeks from the time of making the order, it shows a want of jurisdiction fatal to its validity, and all proceedings founded thereon are void. The rights of infant defendants in -such proceedings cannot be waived by failure to make the objection. — Ol. of App., June, 1880. Stilwell V. Swarthout, 81 N. Y. 109. 81. Appointment of guardian for :infant heirs. Where, in such proceedings, an (vrder was made appointing a guardian for infants, but it did not appear that he consented to or did act, or that he had notice of his appoint- ment ; but on the contrary it appeared that he acted as counsel for the claimant in the pro- ceedings — Held, that even if his appearance for the infants would have constituted a waiver, his consent at least was essential. lb. 114. 82. Report of sale. An omission on the part of the administrators to make a report of sal.e to the surrogate, and to obtain an order confirming the report prior to a conveyance to the purchaser at the sale, is also a fatal defect. lb. 83. These defects are not cured by the pro- visions of the act " for the protection of pur- chasers of real estate upon sales made by order of surrogate." (Laws of 1857, ch. 82, J 3, as amended by Laws of 1869, ch. 260.) lb. 84. Disposition of proceeds of sale. Where such proceedings are legal, and the sale under them valid, the fund realized is under the control and within the exclusive jurisdic- tion of the surrogate ; to reach it, proceedings may be instituted before that officer to compel a report of the administrators, the distribution of the fund and the payment of any lawful demand. lb. 85. An action, therefore, cannot be main- tained to reach the fund in the hands of the administrators. lb, 86. After a sale had been made by order of the surrogate in such proceedings, which were void because of the defects above specified, the administrators procured certain mortgages to be foreclosed, and title was then obtained in favor of the purchaser under the surrogate's order. The fund remaining after payment of the mort- gages was paid over to the administrators. In an action brought to reach such fund and to compel its application to alleged demands against the estate, to which the administrators and the heirs-at-law were made parties — Held, 1. That the administrator could not be held liable, as the fund represented real estate and belonged to the heirs-at-law, subject to the widow's right of dower, and was held by the administrators, not in that capacity, but as trus- tees for said owners ; that the action could not be sustained as one against the heirs, to compel them to pay plaintiff's debt from the surplus, as they can only be made liable in the manner prescribed by the statute (2 Eev. Stat. 109, ^ 53,) and not unless it be made to appear that the deceased left no personal assets out of which the debt can be collected, or that the personal assets have been disposed of and appropriated toward its payment. 2. That plaintiffs were not entitled to specific relief on the ground that the action is m rem for equitable relief, as the remedy of the plain- tiff's had not been exhausted at law. lb. 4. Accownting. 87. "Who may require an account- ing. As to the accounting by an executrix of an executor, the requisites of the petition therefor, and her power (in her capacity as legatee of the exeoutor's»testator) to cite herself to account, see Popham v. Spencer, 4 Eedf. 399. 88. Who may be called to account. A removed administrator, as long as he is liable for assets that have come into his hands,_ is amenable to process from the surrogate calling 118 EXECUTORS AND ADMINISTRATORS, III. him to an account. — Cl. of At.,) Jan., 1880. Savage v. Gould, 60 How. Pr. 217. 92. That some service was rendered by the attorney will not alter this rule when the amount is manifestly excessive as compensation, and the burden is upon the executor to establish such value. lb. 93. Although under section 14 of 3 Eev. Stat. (6th ed.) 91, an executor must include a debt due from him to his testator in the invent- ory, and is, upon the final accounting, prima facie to be held liable therefor as for so much money in his hands at the time the debt became due, yet the presumption of solvency created by the statute may be rebutted, and the execu- tor may show an honest inability to pay the debt continuing during the whole period of his executorship. — Swpreme Gt., (3d Dept.,) Jan., 1881. Baucus v. Stover, 24 Hun 109. 94. A decree refusing to charge the executor with the amount of his debt as for so much money in his hands, does not prevent his being required to render a further account should he thereafter become able to pay the debt, nor does it prevent a proceeding being instituted in equity against him to enforce the payment of the claim and the due application of the avails thereof when collected. As the executor holds the position of a trustee as regards the debt, he could not avail himself of the statute of limi- tations as a defence. lb. 95. "What credits should be al- lowed him, generally. Money lent by one executor to a co-executor, in reliance upon a statement of the latter that he. intends to apply it to pay debts, of the estate, is not a charge against the estate, and cannot be allowed to the executor so advancing the same on the passage of his accounts, unless it be shown by him tliat it was in fact, actually, so applied. — .Supreme Gt., (3d Dept.,) Nov., 1880. Croft v. Williams, 23 Hun 102. 96. An executor who fails to pay taxes when- due, being in funds, cannot claim the interest - or penalty imposed because of his failure to pay such taxes when due.— JV. T. Surr. Gt., Dec.^ 1879. Stubbs v. Stubbs, 4 Eedf. 170. 97. An administrator cannot be allowed a charge for preparing his accounts, in the ab- sence of proof that it was necessary for him to employ an accountant. — N. Y. Surr. Ct., Jan., 1881. Underbill v. Newberger, 4 Kedf. 499. 98. As to the powers and duties on an execu- tor in respect to the payment of assessments, and what payments will be allowed to him on his accounting, see Hone v. Lockman, 4 Redf 61. 99. — for funeral expenses, head- stones, &c. An executor, under a discretion- ary direction in the will, contracted for a monu- ment to be placed over the testator's grave to cost $1455. The value of the personal estate was $11,096. Held, the cost of the monument was exiessive, and only $700 should be allowed to the executor therefor, upon his accounting. — N. T. Surr. Q., April, 1879. Estate of Luckey, 4 Eedf 95. Compare as to purchase of burial lot, "Valentine v. Valentine, Id. 265. 100. As to the allowance, upon his account- ing, to an administrator, of moneys paid by him for funeral expenses, and for costs and disburse- ments of legal proceedings instituted by him for the collection of claims due to the estate, see- Matter of Miller, 4 Kedf. 302; Estate of Valen- tine, 9 Abb. N. Cas. 313. 101. — for costs, counsel-fees, &0.. As to the effect of the going into effect of ihe- Code of Civil Procedure, on granting costs in an action to compel a final accounting begun before- September 1st, 1880, but not settled by decree until after that date, see Matter of Mace, 4 Eedf.. 325. 102. As to allowances to courteel on an ac- counting by an executor, see Osborne v. Mc- Alpin, 4 Eedf. 1. 103. "When he •will be charged -with interest. An executor who deposits the funds of the estate to his individual bank account, mingles them with his own, and employs them in his own business, is chargeable with compound interest, notwithstanding there is proof that he had good reasons to keep the funds of the estate uninvested.— iV. T. Surr. Gt., Nov., 1878. Ber- wick V. Halsey, 4 Eedf 18. 104. A collector who deposits trust funds in his individual name is liable to be charged with the highest rate of lawful interest for the time- such deposit continues. — JV. Y. Surr. Ct., Nov.,. 1879. Matter of Mairs, 4 Eedf. 160. 105. In what cases a personal representative- is chargable with compound interest on his ac- counting, see Freeman v. Freeman, 4 Eedf. 211 ; Lacey v. Davis, Id. 402. 106. Eevie-w ■ of accounting by ap- peal. The proper remedy for erroneous allow- ance of counsel fees by surrogate on final ac- counting of executors is by appeal, not by motion- to open decree and vacate allowance. — Gt. of App., April, 1880. Marsh o. Avery, 81 N.. Y.29. 5. Gompensation. 107. Commissions, and ho"w com- puted. Where, under a power in the will, authorizing a sale for the purpose of a division, of the proceeds, an executor sells real estate sub- EXECUTORS ANB ADMINISTRATORS, III., IV. 119 ject to mortgages existing thereon at the time of the testator's death, or sells the real estate free from the incumbrance, paying off such incum- brance from the proceeds of sale, he is only entitled to commissions upon the amounts ac- tually received for the equity of redemption, and cannot; charge them also upon the amount of the mortgages on the property sold, — Supreme Ct., (3d Dept.,) Jan., 1881. Baucus v. Stover, 24 Hun 109. 108. The right to commissions on final ac- counting, the amount chargeable, when double commissions are allowable, and effect of neglect of duty on the right to commissions, see Ward v. Ford, 4 Eedf. 34 j Matter of Leggatt, Id. 148; Whitney v. Phoenix, Id. 180 ; Freeman v. Free- man, Id. 211. IV. Suits. 1. Actions by executors or administrators. 109. The right to sue in the repre- sentative capacity. Under Laws of 1858, ch. 314, an administrator may bring an action to set aside, as fraudulent as against creditors, a conveyance made by his intestate, when it ap- pears that there are creditors Vhose debts were in existence at the time of the making of the conveyance, and that there is no personal pro- perty wherewith to satisfy their claims. — Su- preme Ct., (iih Derpt.,) April, 1881. Barton v. Hosner, 24 Hun 467. 110. Where, in such an action, it appears that the property has passed from the hands of the fraudulent grantee or transferee to a bona fide purchaser, it seems that a recovery may be had against such fraudulent grantee or transferee for the damages sustained by the estate. lb. 111. Letters of administration granted by a surrogate in this state, where the intestate died leaving assets in his county, are conclusive as to his authority to bring an action for causing the intestate's death. — Ct. of App., Feb., 1881. Leon- ard V. Columbia Steam Nav. Co., 84 N. Y. 48. 112. Action was brought by plaintiff, as ad- ministrator, to recover certain moneys deposited in a savings bank in the name of defendant as trustee for plaintiffs intestate. — Held, 1. That an order of the surrogate, under Laws of 1870, ch. 394, deciding that said adminis- trator, by virtue of his oflSce as such, was enti- tled to the custody of the bank-book, was not an adjudication of his title to the funds repre- sented thereby. 2. That the surrogate had no jurisdiction to try such a claim, and that the defect was not waived by the appearance of the parties. — Spi- perior Ct., June, 1880. Westervelt u. Wester- velt, 46 Superior, 298. 113. As to the right of an executor to sue his co-executor in equity for an accounting, see Price V. Brown, 60 How. Pr. 511 ; Neilly v. ISTeilly, 23 Hun 651. 114. — or individually. Where a promis- sory note indorsed in blank by a testator, and de- posited in a bank for collection, comes, after his death, into the possession of his executor, the executor may maintain an action thereon in his own name, or may rely upon it as a defence by way of set-off to an action brought against him in his individual capacity to enforce a claim for which he is individually liable. — Supreme Ct., {1st Dept.,) March, 1881. Barlow v. Myers, 24 Hun 286. 2. Actions against executors or administrators. 115. Liability to be sued as such. A creditor may sue an administrator to recover the amount of bonds of the intestate, the payment of which is secured by mortgages upon real estate ; and the fact that the plaintiff is the owner and holder of mortgages upon lands situated in New Jersey, given as collateral security to the bonds, is no defence to the suit. The provisions of 1 Eev. Stat. 749, 2 4, is no bar to such action. — Supreme Ct., {1st Dept. Oire.,) Nov., 1880. Thomp- son V. Sullivan, 60 How. Pr. 71. 116. — as individuals. An action against an executor in his representative capacity does not bar one against him individually. — Supreme a., {ith Dept.,) Oct., 1880. Hall v. Eichard- son, 22 Hun 444. 117. Statutory limitation of suits. The extension of one year given by the last clause of Code of Civ. Pro., § 403, is not applic- able to a case where the letters were not xssued until after the claim was barred. — Supreme Ct., {3d Dept.,) Jan., 1881. Chapman v. FOnda, 24 Hun 130. 118. The complaint. Where an action is brought upon an instrument executed by a per- son as executor and trustee under a last will and testament, an allegation that such person, as executor of such last will and testament, exe- cuted the instrument, is sufficient, though where one sues as executor the rule is different, in which case he must aver his appointment and title as such, in particular. Or where the ac- tion is brought to recover a debt due to or from a testator, an allegation is necessary showing the appointment of the executor, or administrator, as such, with all necessary details to make that act apparent. — Supreme Ct., {1st Dept.,) July, 1881. Kingsland v. Stokes, 61 How Pr. 494 ; affirming 51 Id. 1. 119. Enforcement of judgment — con- tempt. An executor againsi whom a judgment has been obtained, ordering him to pay over moneys of the estate to a legatee,'Cannot be ar- rested for contempt in refusing to pay over the moneys, when the performance of the judgment can be enforced by execution. — Supreme Ct., {4th Dept.,) tan., 1881. Baker v. Baker, 23 Hun 356. 120. Costs. The court, upon adjudging that a fund in the hands of an administrator- defendant, which he claims belongs to his dece- dent, in fact belongs to the plaintiff, and that neither the administrator nor his decedent has any interest therein, cannot direct the payment of the defendant's costs out of such fund. — Swpe- rior Ct., Feb., 1880. Sheehan v. Huerstel, 46 Superior 64. 121. Costs awarded to the plaintiff in an ac- tion against an executor will be presumed, in the absence of a contrary showing, to be paya- ble out of the estate, and not by the defendant personally.— JV. T. Surr. Ct., Nov., 1878. Ber- wick V. Halsey, 4 Eedf. 18. 3. Proceedings to enforce administration bonds. 122. Sufficiency of the bond. Letters of administration having been issued to defend- ant B., by the surrogate of Steuben county, he gave a bond, with the other defendants as sure- ties, conditioned that he would faithfully exe- cute the duties of the bond, and " obey all the orders of the surrogate of the county of Ontario 120 EXECUTORS AND ADMINISTRATORS, IV., V. * * * or of any other officer or court having jnrisdiction in the premises." In an action upon the bond— BeW, that the mistake in nam- ing the surrogate of Ontario did not vitiate the instrument ; that, leaving out that clause, enough remained to meet the requirements of the statute (2 Eev. Stat. 77, ? 42,) and to hold the obligors.— Ci!. ofApp , Sept., 1880. Gerould V. "Wilson, 81 N. Y. 573. 123. Liability of the sureties. The sureties upon the bond of an administrator are privies to proceedings against their principal, and where he is, without fraud or collusion, concluded, they are concluded also. lb. 124. The letters were, upon application of a surety, revoked in 1864. No other adminis- trator was appointed. In 1876, B. was required to account. B. appeared and rendered his ac- count, and he was ordered to pay to plaintiff, as next of kin, a certain sum, as her distribu- tive share of the estate. It appeared that the moneys he was thus ordered to pay over had come into his hands officially, before the revo- cation of the letters. Held, that the surrogate had jurisdiction and power to decree distribu- tion,' and that his detree was conclusive as to the sureties. lb. S. P., Kelly «. West, 80 N. Y. 139. 125. Subrogation of surety. A surety for an administrator, who has so administered the estate as probably to render the surety lia- ble on his bond, has no such equitable lien or right as to enable him to prevent the payment of a legacy to the executrix of his principal. Such a surety has no claim against his princi- pal's property, until he has paid pursuant to his bond, and has recovered judgment against his principal. — N. T. Surr. Q., July, 1879. Brown V. Kerrigan, 4 Eedf. 146. 126. Matters of defence in action on bond. Where an administrator is removed by order of a surrogate having jurisdiction of the estate, and of the administrator, the order of re- moval cannot be assailed in an action brought by administrators, appointed in place of the one removed, upon his official bond, because of ir- regularity in the proceedings for removal, assented to by him ; the order is valid as to him, and if so is valid as to all others, including his sureties. — Ct. oj App., Feb., 1880. Kelly v. West, 80 N. Y. 139. 127. In such an action where an objection to the order of removal, of want of jurisdiction, is taken, where the brder was granted by the surrogate of the county of New York, the pro- vision of the act of 1870 in relation to said surro- gate, (Laws of 1870, ch. 359, § 1,) which pro- vides that the objection of want of jurisdiction shall not be taken to his orders, except by ap- peal, or in a proceeding before the surrogate, to vacate or modify it, may be invoked to sustain the order. lb. V. FOKEIGN KePEESENTATIVES. 128. Right of action of foreign ex- ecutor. The rule that assets pass to the ad- ministrator appointed in the state where they are situated, and that a foreign executor cannot sue to recover them, applied to the facts of the particular case. — Supreme Ct., (2d Dept.,) Sept., 1880. Holvoke v. Union Mutual Life Ins. Uo., 22 Hun 75." As to the rights of Heirs and Distributees, see Descent; Distribution. Of Devisees and Legatees, see Devise ; Lega- cies. EXEMPTION. Attachment; Execution; Taxes. EXHIBITS. Evidence, IV. EXONERATION. Of Bail, see Bail, 5-9 ; of Guarantor, see Guaranty, IV. ; of Surety, see PRnsrciPAii and Surety, III. EXPERTS. Witnesses, V- EX POST FACTO LAWS, Statutes, I. EXTRADITION. 1. Bet'ween the states — ■what of- fences embraced. The provision of the federal constitution, (art. IV., ? 2,) requiring the surrender, on demand of the executive authority of a state, of fugitives from justice, " charged with treason, felony or other crimes," who are found in another state, and the provision of the U. S. statutes giving practical effect thereto, (U S. Eev. Stat. 5278,) embrace every criminal of- fence and every act forbidden and made punish- able by the law of the state where the act was committed. — Ol. of App., March, 1881. People, ex rel. Jourdan, v. Donohue, 84 N. Y. 438. 2. The governor's -warrant. Where the papers upon which a warrant of extradition is issued are withheld by the executive, the warrant itself can only be looked to for the evi- dence that the essential conditions of its issue have been complied with, and it is sufficient if it recites what he law requires. Jb. 3. Both at common law and un(|erthe statutes of Connecticut, " theft " is recognized as a crime and as synonymous with " larceny." W here, therefore, to a writ of habeas corpus, a warrant of extradition issued by the governor of this state was alone returned, which recited a repre- sentation by the governor of Connecticut, that the prisoner stood " charged with the crime of theft " committed in said state, that said gover- nor has demanded his arrest and extradition, that the demand was accompanied by affidavits, etc., whereby the prisoner " is charged with said. EXTRADITION— FALSE PRETENCES. 121 «rime, and with having fled from the said state," and that such papers were certified by said gover- aior to be duly authenticated — Held, that the war- rant fully complied with the statute and suffi- ciently established the conditions necessary to its issue; that it was not necessary to state therein the facts constituting the alleged crime. Tbt FACTOR. Pbincipal and Agent, IV. FALSE IMPRISONMENT. 1. 'When the action will lie. The ■plaintiff, who had entered one of the defendant's ■cars at Forty-second street, New York city, was, while attempting to pass out of the station at Sector street, stopped by the gateman, who de- manded his ticket. Upon being told by the plaintiff that he had purchased a ticket but had lost it, the gateman detained him and finally sent for a policeman, who arrested him on the -charge of disorderly conduct and refusing to pay his fare, and took him to the station-house, where he was detained over night. On the next morning he was examined before a police justice and discharged. The defendant had instructed its gatemen to compel passengers to produce their tickets on leaving its stations. In an ac- tion brought by the plaintiff to recover damages for the false imprisonment — Hdd, 1. That the detention of the plaintiff at the station, and his subseq^uent arrest on the <;omplaint of the gateman, were illegal. 2. That the defendant was liable for the acts -of the gateman. 3. That the plaintiff was entitled to recover. — JSup-eme Ct., (2d Bept.,) May, 1881. Lynch i;. Metropolitan Elevated B'y Co., 24 Hun 506. 2. "Wlien it -will not. The rule that the •complaint should be dismissed, when the process under which the plaintiff was arrested was regu- lar, and the arrest under it lawful, applied. jSTebenzahl v. Townsend, 61 How. Pr. 353. 3. Tirae to sue. As to when the cause of Tction for false imprisonment is complete, and what delay to sue is fatal under the two-year statute of limitations, see Dusenbury v. Keiley, 61 How. Pr. 408. As to MaMeums prosecution, see that title. FALSE PRETENCES. 1. What constitutes the offence. It is not necessary that words should be spoken or written to create a false representation ; a mute or silent act may convey the falsehood, and if it does, it constitutes the offence. — Ct. of App., Jem., 1881. People, ex rel. Phelps, v. Oyer and Terminer, 83 N. Y. 436. . 2. Sufficiency of the indictment. In an indictment under the statute for obtaining a accused with obtaining the signature of the signature to a written instrument under false pretences, it is not essential to set forth all the details of the fraud ; it is sufficient to specify particularly the pretences, to aver their falsity and the fraudulent intent, and to show how they were effectual in accomplishing the fraud. lb. 3. If the false pretence averred and proved is capable of defrauding, it is sufficient, and this must be determined by the circumstances of each particular case. lb. 4. Such an indictment may be based upon a false claim of indebtedness against a municipal corporation ; and if it appear that the claim was presented under such circumstances and in such manner as was calculated to deceive the munici- pal officer whose duty it was to act thereon, and that his signature was thus procured, a convic- tion will be sustained, lb. 5. The question in such case whether the false pretence was calculated to deceive and was capable of defrauding, is one for the jury. lb. 6. In an indictment, therefore, charging the mayor of the city of New York to a warrant drawn on its chamberlain by false pretences, to wit, by means of a false and fraudulent bill, set forth in the indictment, represented by the ac- cused to be a just and true account, and that the city was justly indebted to the person in whose name the account was presented against the city — Hdd, that it was not necessary to set forth how the fraudulent account operated to de- ceive through the action of the intermediate agents of the corporation ; that the manner In which the false representation reached the mayor was matter of detail belonging properly to the evidence on trial, lb. 7. Evidence for the people. Upon the trial the mayor testified that he had no distinct recollection of what occurred at the time he signed the warrant, and knew that he signed it simply because his name was affixed to it ; it appeared that the bill in question was delivered to him ; he was then allowed to testify to the routine of business in his office. Held, no error. lb. - 8. It appeared from this evidence that while the mayor did not read or examine each voucher which accompanied the warrants presented to him to sign, he required their presence and was induced to sign by the presence of the bill and by the approval thereof by the proper officers. Held, that this authorized the submission of the question to the jury as to whether the presence of the bill was one of the inducements to the signature; that its bare presence, although neither examined nor read by the mayor, was a false pretence, lb. 9. Where, upon the trial of an indictment for obtaining goods on credit, by means of false representations on the part of the prisoner as to his responsibility, the representations charged their falsity, and the knowledge of the accused 122 FALSE PRETENCES— FERRIES. tHat they were false, is established, the allega- tion that they were made with intent to defraud may be supported by proof of dealings of the prisoner with parties other than the complain- ant, such as purchases made upon the faith of similar representations, which tend to show a fraudulent scheme to obtain propertyby de- vices similar to those practiced upon him, pro- vided the dealings are sufficiently connectedin point of time and character to authorize an in- ference that the purchase from the complainant was made in pursuance of the same general purpose.— Ci. of App., March, 1880. Mayer ii. People, 80 N. Y. 364. ^ 10. So, also, similar representations made by the prisoner to creditors, from whom goods had been previously purchased by him, although no goods were obtained by means of the represen- tations, may be proved, when evidence has been given tending to show that he was at the time making fraudulent disposition of the goods pur- chased, lb. 11. Such testimony is relevant, not as bearing upon the question whether the prisoner made the representations charged, but as tending to show a motive in pursuance of the general fraudulent scheme, to quiet the creditors and retain control of the goods, so as to continue the fraudulent disposition of them. lb. 12. Tlie pretence must have influ- enced tlie person defrauded. _ To justify a conviction upon the trial of an indictment for obtaining property or the signature to a written instrument by false pretences, it must appear by the evidence that the parting with the property or the signing of the instrument was by reason of some of the pretences laid in the indictment, or' that they materially influenced the action of the prosecutor. — Ct. of App. Therasson v. People, 82 N. Y. 238. 13. It is not necessary, however, that this should be established by direct proof; it maybe inferred from other facts tending legitimately to show it. lb. 14. Upon the trial of an indictment for ob- taining the signature of Z. to the discharge of a mortgage by false pretences, Z. was examined as a witness for the prosecution, but was not asked the direct question as to whether she was influenced or induced to sign by the representa- tions proved. The prisoner's counsel asked the court to charge in substance that although the jury might find the false pretences to have been made, and the^ necessary fraudulent intent, yet the jury had no right to consider these ques- tions or the evidence as to them, in determining the question whether the pretences exerted a material influence over the mind of Z. ; the court refused so to charge. Seld, error; that while the falsity of the alleged pretence and the fraudulent intent of the prisoner were both necessary elements of the crime, the ques- tion whether the prosecutrix was influenced by the representations was a distinct one, having no necessary connection with the others, and proof of these others reflected no light upon it. lb. ^ Nor was the exception to the refusal to charge abandoned by a claim on the part of the said counsel that in the absence of testimony by Z., that she was influenced by the representations, the fact could not be found from the other evi- dence, lb. Compare People, ex rel. Phelps, v. Oyer and Terminer, supra. FALSE REPRESENTATIONS. Feattd, 2-4; Insttbance, II., Ill, IV.; Vendoe akd Purchaser, I. FALSE RETURN. Shebifi's, II. FEES. Attorney aud CirENT, 14-24 ; Atjction^ 2, 3; Costs, 56-58; Shbbitfs, I.; Wit- nesses, I. FEIGNED ISSUES. EfttniY, 5-7. FERRIES. 1. Right to maintain ferry — public and, private ferry. Any person owning land on both sides of a river may, without legislative authority, and even in defiance of legislative prohibition, maintain a ferry or bridge for his own use, providing he does not interfere with the public easement. Such owner, however, cannot, without legislative authority,, maintain a bridge or ferry for public use. — Gt. of App., Dec, 1880. Chenango Bridge Co. a. Paige, 83 N. Y. 178. . 2. Liability of ferry company for injuries to passengers. While a ferry company is bound to use the strictest diligence in providing suitable and safe accommodation for landing passengers from its boats, it is not bound to so provide against any possibility of danger that they can meet with no casualty. — Ot. of App., March, 1881. Loftus v. Union Ferry Co., 84 N. Y. 455 ; affirming 22 Hun 33. 3. Defendant landed passengers from its^ ferry boats by means of a float or bridge, be- tween each side of which and the adjoining pier- was a space of from eight to twelve inches, left for the movement of the bridge under the ac- tion of the tide and the impact of the boats on entering the slip. On each side was a guard,, with a sUl along the outer line of the passage- way rising six or eight inches from the floor of the bridge, which was spanned by an arched rail, at the centre about three feet above the sill,, supported by stanchions in the sill about six feet apart. Between the sill and this rail was an- other rail twenty or twenty-two inches above- and parallel with the sill. PIaintiff''s intestate^ a child six years old, while leaving one of defendant's boats, in passing over this bridge,, fell through one of the openings in the guard into the water and was drowned. In an action to recover damages it appeared that the bridge had been constructed five or six years before the accident and was similar to bridges- at other ferries of the defenda,nt, over which, millions of people passed annually and no simi- FERRIES— FIXTUEES. 123 lar accident had previously happened. Seld, that defendant was not chargeable with any ac- tionable negligence; and that a verdict for plaintiff was properly set aside. lb. FIERI FACIAS. Execution, I. FILING. Geatieii MoBiaAOEs, 4, 5 ; Jussment, II. FINDINGS. By Referee, see Bepebence; by Judge, on trial without a jury, see Tbiaii, VII. FIRE. InmraTice against, see Instjbance, II. ; lia- bility for Negligence, in respect to spread of, see Eaileoad Companies, IV. FISHERIES. Bights of owner of oyster bed. Al- though the right of fishing in the navigable waters of the state is common to all of its citi- zens, yet where one has staked out a bed. where no oysters are then growing, planted oysters therein, and taken measures to save and protect the young oysters, or "spat," such oysters and their ofispring belong to him, and he may maintain an action against one who takes them away and converts them to his own use. — Svr preme Ct., (2d JJepi.,) 5ep«., 1880. McCarty d. Holman, 22 Hun 53. FIXTURES. 1. "What are, as between vendor and purobaser. Soil removed from the land of one person and placed on the land of another, with his consent, and without an in- tention on the part of the former to reclaim it, or any agreement authorizing him to remove it, becomes a part of the land of the latter. — Ct. of Ap., Nov., 1880. Lacustrine Fertilizer Co. V. Lake Guano, &c., Co., 82 N. Y. 476 ; affirm- ing 19 Hun 47. 2. The owner of land cannot, as a general rule, by agreement between himself and an- other, make that which is a part of the realty, personal property, as against a subsequent pur- chaser of the land for value without notice, there having been no actual severance when the subsequent grant was made. lb. 3. The doctrine of constructive severance cannot be applied to defeat the rights of such sub- sequent purchasers, under the recording acts. 26. 4. Instances. In excavating a channel through the farm of T., to turn the waters of a river for canal purposes, a deposit of marl was struck, which was excavated and deposited on the banks of the cut, where it remained for over twelve years, when T. sold and conveyed his farm to B. The deed contained an exception of the said beds or deposits of marl, and an agreeiiient that the marl might remain on the land for ten years and that the grantor might, at any time within that period, " remove a part or the whole of said marl." Held, that when the conveyance was made, the marl was a part of the soil of the farm of T., and this without regard to the question whether or not the state, before cutting the channel, had acquired title to the land through which it was excavated j that the exception in the deed was of an inter- est in the land, terminable on the expiration of the ten years, and if the right of removal was not exercised within that period, the grantee held, relieved of the burden of the ex- ception, and as absolute owner. lb. 5. T., by instrument under seal, conveyed the beds of marl to B. with covenant of warranty and without limitation as to time of removal. Thereafter, T. re-acquired title to the farm. The conveyance to B. was not recorded. Held, 1. That the marl did not become per- sonalty by force of the conveyance ; that it was void as against a subsequent grantee of the farm, who purchased after the expiration of the ten years, in good faith, for a valuable con- sideration without knowledge ; that the excep- tion in the deed was not constructive notice, as the right reserved to T. had expired, and even if the ten years had not elapsed when T. re-pur- chased, the right, save for the grant to B., waa merged in the fee then acquired. 2. That a purchaser from said grantee stood in the place of the latter and was entitled to the protection of the recording act, although he purchased with notice of the interest of B. lb. Q. "WTiat are. not. Gas fixtures, which are simply screwed on to the gas pipes of a building, and can be detached by unscrewing them, and mirrors which are not set into the walls, but are put up after the completion of the building, being supported by hooks or other supports driven in or attached to the walls, and which can readily be detached from these supports without interfering with or in- juring the walls, form no part of the realty ; they are simply chattels, not appertaining to the building 5 and so, do not pass by deed or under a mortgage of the premises. — Ct. of App., April, 1880. McKeage v. Hanover Fire Insur. Co., SIN. Y. 38. 7. In respect to such articles, the mere dec- laration of the owner that he intends them to go with the house does not make them realty. lb. 8. Where, however, such chattels are spe- cially bargained for and purchased by a pur- chaser of the premises, they pass by delivery, although not mentioned in the deed, and no bill of sale of them is given. lb. 9. Instances. M., who had purchased and had been put into possession of certain premises, with the gas fixtures and mirrors, executed a mortgage on the premises to defend- ant. No mention of said chattels was made in the mortgage. When he applied for the loan, to secure which the mortgage was given, he 124 stated that the house included gas fixtures, mir- rors, etc., and that they were to go with it. The premises were afterward sold and conveyed to S., who sold and conveyed to W., the deeds stating the conveyance to be subject to the mortgage; no mention was made of said chattels. The grantees went into posses- sion ; while so in possession W. executed a bill •of sale of said chattels to McK., to whom he had also contracted to sell the house. McK "went into possession, and subsequently paid most of the purchase price. In an action for the alleged conversion of said chattels, by "plaintiff, who claimed as assignee of McK. against defendant, who had taken possession under foreclosure sale — Held, 1. That the possession of W., at the time he executed the bill of sale, was prima facie evidence of his title; that the repre- sentations and statements made by N. when negotiating the loan did not change the char- acter of the property, and could not affect sub- ' sequent purchasers for value having no notice ■of them, although as between defendant and N., the former might have an equitable lien. 2. That the fact that McK. was present at the foreclosure sale and failed to give notice of his claim, did not estop him from asserting it ; that the property offered for sale being simply the house and lot, and no announcement having been made that the chattels in question were included, there was no occasion for protest. lb. 10. The assignment from McK. to plaintiff ■was after the cause of action for the conversion had accrued. The assignment transferred the title of McK. tb the property as well as the ■cause of action. BM, that plaintiff could maintain the action ; also, that the considera- tion of the assignment was not material so long as it was valid as between the parties to it. lb. FORBEARANCE. •OtJABANTY, 11 ; PaiNCrPAI, AND STmETT, III. FIXTURES— FRAUD, I. FOREIGN CORPORATIONS. COBPOBATIONS, VIII. ; InSXJEANOE, VI. FORCIBLE ENTRY AND DETAINER. 1. "What questions, are before tlie •court. In proceedings for forcible entry and •detainer, under Code of Civ. Pro., ch. 17, title 2, the main question for determination is whether •the party charged entered by force, upon one having previously a peaceable possession, under -claim of right, and whether the person whose possession was invaded has been held out by force.— JfaWme Cl., (Sp. T.,) March, 1881. Kelly V. Sheehy, 60 How. Pr. 439. 2. These provisions do not cast upon the magistrate the burden of examining and deter- mining conflicting titles to real estate. lb. FORECLOSURE. Mechanics' Lien, II. ; Moekjaqes, VI. FOREIGN EXECUTORS. EXECUTOKS AND AdMINISTBATORS, 120. FORGERY. Sufflciency of indictment. The plain- tiff in error was convicted of forgery in the third degree in attempting to forge an instru- ment purporting to be a pecuniary obligation of the empire of Brazil. The instrument, which was set forth in the indictment in the Portuguese language, with an English transla- tion, states that "the national treasury will pay to bearer this quantity of twenty mil-reis, value received." I Held, 1. That as the mil-reis was not money of this country, and as the court could not take judicial notice that it was a coin at all, it did not appear that the instrument involved any pecuniary demand or obligation upon the part of the empire of Brazil, and that the indict- ment was insufiScient. 2. That the objection might be taken after verdict and judgment thereon. — Supreme Ct., {Xst Dept.,) March, 1881. Sanabria v. People, 24 Hun 270. FORMER ADJUDICATION. JtTDGMBNT, IIL FRANCHISE. CoEPOBATiONS, I. ; and the titles of the vari- ous corporate bodies. FRAUD. Comprises only general principles as to what acta or representations are, or are not firaudulent, and tlie 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 : Assign- ments; Bills OF Exchange ; Chattel Mortgaoes; Contkactb; Deeds; Moetgages; Pkomissoey Notes ; Sales ; Vendor and Pdeohasee ; Wills. The circumstances which will render a conveyance fraudulent as against the grantor's creditors, are treated under Fraudulent Conveyances. I. What Amounts to Featjd oe Deceit. 11. Eemedies foe Feattd. FRAUD, I., II. 125 I. What AMOiraTS to Featid ob Deceit. 1. Constructive fraud. The fact that there is difference in the special information of the parties on the subject, will not constitute an element tending to establish constructive fraud, unless there are relations of confidence between the parties or their agents. — Superior Ot., June, 1880. Stevens v Mayor, &o., of New York, 46 Superior 274. 2. False representations. When a statement is made by a party who assumes or intends to convey the impression that he has actual knowledge of its truth, though conscious that he has no such knowledge, and when he knows that the inquirer relies and is about to act upon his statement, a jury may be justified in finding, on proof of the falsity of the state- ment, and of the injury sustained by the party relying thereon, that the party making the same intended to deceive and defraud the in- quirer. — Supreme Ct., {1st Dept.,) Jan., 1881. Meyer v. Amidon, 23 Hun 553. Compare Feun V. Curtis, Id. 384 ; Bradner v. Strang, Id. 445. 3. Where the party making such statement testifies that he siinply undertook to repeat what had been told him, while the party to whom, it was made testifies that the statement was posi- tive and made as being within the personal knowledge of the party making il — Beld, that the question should be submitted to the jury. Meyer v. Amidon, supra. 4. False statements believed to be true. The plaintiff purchased of the defend- ant a mortgage, relying upon a statement made by the latter, that it was a first mortgage, and that the property covered by it was worth $15,000. In fact, it was a second mortgage, and worthless. The defendant made the statement in good faith, believing it to be true. He did not intend, and refused to guarantee the payment of the mortgage. In an action brought by the plaintiff to recover the amount paid by her on the purchase of the mortgage — Held, that she was not entitled to recover. — Supreme Ct., {2d Dept.,) Dec., 1880. Van Vliet v. McLean, 23 Hun 206. 5. Concealment, or suppression of facts. D., S. & Co., a banking and commission firm, accepted drafts drawn upon the firm by B., a clerk in their employ, which were purchased by defendants, who were note-brokers. B. had no funds on deposit, and said firm was not in- debted to him. Defendants knew that the drafts were not drawn against funds, but were issued by D., S. & Co., as a means of borrowing money. Plaintiff had no such knowledge. Defendants had been accustomed for several years to pur- chase similar acceptances and to sell them in the market. Plaintiff had purchased large amounts of them from defendants and other brokers. In pursuance of their custom, defendants immedi- ately afler said purchase sent a written notice to plaintiff that they had for sale acceptances of D., S. & Co., stating the price paid, and for what they would sell. Plaintiff purchased a portion of the paper. Defendant made no express rep- resentation of any kind as to the paper, and no inquiry was made by plaintiff as to ite origin, character or consideration. D., S. & Co. failed a few days after; up to the day of such failure that firm had enjoyed the highest financial credit and standing, and it did not appear that defendants had any knowledge or information that it was in embarrassed circumstances. Seld, that an action to recover back the moneys paid for the acceptances on the ground of fraud on the part of defendants, in concealing their knowledge of the origin and consideration of the paper, was not maintainable. — Ct. of App., June, 1880. People's Bank v. Bogart, 81 N. Y. lOU 6. Plaintiffs, on the 6th of November, 1868, wrote to S., of the firm of S. & Co., of which firm defendant was a member, stating that they un- derstood S. & Co. had " a lien," etc., on the mills of the U. S. W. Co. ; that said company was offering to buy of them on credit, and inquiring as to its "ability to pay." Defendant answered under date of November 7th, 1868, stating that said company consigned all its goods to them, for which they had a ready sale, sometimes on orders largely ahead of the production ; that so far as they could judge, it had made money ; that they could only form an opinion as to its management from the period they had been in connection with it ; that it had nothing to con- ceal, and would no doubt fairly answer all plain- tifia' inquiries. In an action to recover damages for alleged fraudulent representations and con- cealments, it appeared that 8. & Co., at the time the answer was written, had a chattel mortgage for $300,000 on the personal property of said company, which was on record ; also, a mortgage on its real estate. Nothing was said of this, and defendant testified that the omission was because the mortgage was on record, and, therefore, waa intentional. He did not admit, however, that it was with any wrong intent. JSeld, that the evi- dence did not warrant a finding of a fraudulent suppression ; that from the terms of the letter of inquiry, defendant might reasonably assume that the object was not. to elicit information as to the- "lien," etc., of the existence of which plaintiffs were aware. — Ot. of App., Sept., 1880. Babcoek V. Libbey, 82 N. Y. 144; affirming 17 Hun 131.- II. Eemedies fob Feaud. 7. "WTio may sue for deceit. Where a. member of a firm makes to a mercantile agency statements known by him to be false, as to the capital invested in the firm business, with the intent that the statements shall be communi- cated to persons interested in ascertaining the pecuniary responsibility of the firm, designing thus to procure credits and to defraud such per- sons ; and such statements are communicated to- one who in reliance thereon sells goods to the firm upon credit, an action for deceit is main- tainable at the suit of the vendor, against the- partner making such false representations. — Ot.. of App., Nov., 1880. Eaton, Cole, &c., Co. v. Avery, 83 N. Y. 31 ; affirming 18 Hun 44. 8. No recovery ex contractu, on fail- ure to prove fraud. Where an action is brought to recover back moneys alleged to have been fraudulently obtained under color of a con- tract with the state, by means of fraudulent pre- tences and vouchers, and by collusion with state officers, on failure to prove fraud a recovery ex contractu cannot be had. — Ot. of Apv., April, 1880. People v. Denison, 80 N. Y. 656. 9. Power of equity to grant relief. A common law action, for deceit, based on actual fraud, in which the allegations of fraud go to the very foundation of the action, and are not simply attached as incident to the cause of action, cannot be sustained as an equitable action. 126 FKAUD. II.— FRAUDULENT CONVEYANCES. brought to charge defendant as trustee for plain- tiff, on the ground of constructive fraud.— /Sm- perior Ct., June, 1880. Stevens v. Mayor, &c., of New York, 46 Superior 274. As to fraud in Sales of chattels, see Saies ; in Sdes of land, see Vendor and Ptxrchaseb. FRAUDULENT CONVEYANCES. 1. Effect of possession remaining in grantor. Although the continued possession of the demised premises by an assignee of a leaoc, after he has assigned the same, may be evidence of fraud, and tend to show that the assignment was merely colorable or fictitious, yet that fact standing alone is not suflSicient to establish the invalidity of the assignment, or render such assignee liable for rent thereafter accruing. — Supreme Ct., {2d Dept.,) Dec., 1880. Tate V. McCormick, 23 Hun 218. 2. Effect of reservations or trusts in grantor's favor. The statute (2 Eev. Stat. 135, § 1,) has no application to real and actual alienation, upon valuable consideration and posi- tive and real purposes, although incidental benefits are reserved to the grantor. Its object is to render simply ineffectual, clearly nominal transfers of personal estate, when the entire use and control are, by declaration of trust, in or out of this instrument, left in him who makes the transfer. The statute only avoids conveyances which are wholly to the use of the grantor. — Supreme Ct., (ith Dept.,) April, 1881. Shoemaker V. Hastings, 61 How. Pr. 79. 3. Conveyances bet-ween parent and child. M., being insolvent, conveyed to his son F., who was then a man of no means, his farm, which was worth from $10,000 to $11,000. F. was then twenty-six or twenty-seven years old ; after he became of age he continued work- ing on the farm under no express agreement, except for a year previous to the conveyance, when he worked it on shares. The farm was conveyed subject to a mortgage of SB4000. F., to secure a portion of the purchase money, gave back a mor%age of $3500, and $1500 was agreed upon and allowed for the services of F., after he became of age, and for his share of the proceeds of the farm for the last year, which M. had re- ceived. F. also gave to M. a note for $500, and executed a written agreement, by which, for an expressed consideration of love and affection, and of $100, he agreed to support M., and to pay him $500 on demand, m case he should think it the duty of F. so to do. By another writing, executed about six weeks thereafter, M. con- veyed to F. all his farming utensils and farm property in consideration of $1200, for which F. gave his notes. In an action by judgment credits ors of M. to set aside the deed as fraudulent— BeH, vthat the facts authorized a finding that in and by the transaction the parties intended to hinder, delay and defraud the creditors of M. ; and so, that the deed was YoiA.—Ct. qf App., Dec., 187S. Steams v. Gage, 79 N. Y. 102. 4. — to •wrife on purcliase by hus- band. A husband is authorized to make a suitable provision for his wife, and if made without any fraudulent intent or purpose, it will be sustained. Where, therefore, a husband, who is entirely solvent, openly purchases prop- erty and causes the same to be conveyed to his wife, retaining sufficient property in his own hands for the purposes of his business and abund- ant means to pay all his existingdebts, and the circumstances show that neither insolvency nor inability to meet his obligations could reasonably have been within his contemplation, and that no new or more hazardous business was in contem- plation, the transaction cannot be held fraudu- lent and void as against subsequent creditors. —Ct. of App., Sept., 1880. Carr v. Breese, 81 N. Y. 584. 5. Where a husband having property worth from $21,000 to $22,000, and owing debts to the amount of $2800, and doing a prosperous busi- ness, purchased and caused to be conveyed to his wife premises costing $16,300, of which sum $10,600 was paid by him by mortgage on his real estate, and the balance secured by a mort- gage on the premises — Hdd, 1. That the settlement was not unsuit- able or disproportionate to the husband's means. 2. That the fact that one who had given the husband credit previous to such settlement, knowing that he owned the real estate so mort- gaged to pay part of the purchafie money, was not informed when subsequent credit was given, of the purchase for the wife, was not evidence of firaudulent intent. lb. For the effect of fraudulent acts or represen- tations As between the parties to the conveyance, see Vendor and Ptirchaser, I. As to the remedy by Creditor's suit, see that title. FREIGHT. Cabbiebs; Insurance, IV. ; Shipping, 11. FUGITIVES FROM JUSTICE. KXTBADITION. FUNERAL EXPENSES. ExECtrroKS and Administbatoes, 92, 93. GAS LIGHT COMPANIES— GUARANTY I. 127 G. GAS-LIGHT COMPANIES. 1. The liability of a stockholder of a •corporatiou organized under the act authorizing the incorporation of gas-light companies (Laws ■of 1848, ch. 37,) to the creditors of the company imposed by said act (§ 10), until the whole capi- tal stock has been paid in and certificate thereof £led, is not limited to the original incorporators, but applies as well to those becoming stock- holders after the incorporation. — Gt, of App., Jan., 1881. Briggs v. Waldron, 83 N. Y. 582. 2. It seems that the complaint in an action brolcght by a creditor against a stockholder, under that act, is defective when it omits to state that the capital stock had not been paid in and certificate filed at the time the debt was incurred. 16. 3. It seems, also, that the certificate of the clerk •of the proper county as to the non-filing of the certificate is defective where it omits to state that diligent search for it has been made in his office, as required by section 921 of the Code of €ivU Procedure. lb. For decisions relative to Manufactii/ring cor- porations, generally, see Mantjpacttjbing Com- PANIES. GENERAL AVERAGE. Insttbance, IV. GENERAL ISSUE. PiiEABiNa; and the titles of the various ■causes of action. GENERAL TERM. As to what is appealable to, and the Jurisdiction and Procedure of the General Term, see Ap- peal, II. GIFT 1. Neoeseity of delivery. To establish a valid gift, a delivery of the subject of the gift to the donee, or to some person for him, so as to divest the possession and title of the donor, must be shown. — Ot. of App., April, 1880. Young V. Young, 80 N. Y. 422, 430. 2. To make a valid gift in proesenti of an in- strument securing the payment of money, re- ;serving to the donor the accruing interest dar- ing life, without a written transfer or declara- tion of trust, there must be an absolute delivery of the security to the donee, vesting the entire legal title and possession in him, on his under- taking to account to the donor for the interest. lb. _ 3. If the donor retains the instrument under Ms own control, though merely for the purpose of collocting the interest, there is an absence of the complete delivery essential to the validity of a gift. J6. 431. 4. So, also, such a gift cannot be made by creating a joint possession of donor and donee, even if it be with the intention that each shall have an interest. lb. 5. Evidence ; and when question for jury. As to what facts must be proved to es- tablish a valid gift, and when the question should be left to the jury, see Armitage v. Mace, 46 Superior 550. As to gifts in Fraud of creditors, see Fbatjdu- LENT Conveyances. As to gifts by Will, see Devise ; Legacies ; Wells. By way of Advamcement, see Advance- ment. GRAND JURY. Indictment, I. GRAND LARCENY. Laeceny. GUARANTY. I. GrBNEBAL PbINCIPLES. II. Requieements op the Statute op Fbauds. iii. constbtrction and opebation. IV. Actions on Guaranties. I. Geneeal Peinciplis. 1. WTiat amovmts to a guaranty. To induce plaintiff, a ship-builder, tg build a schooner for defendant and others, and to re- ceive a one-sixteenth interest therein in pay- ment for his services, defendant covenanted and agreed with plaintiff that the said one-sixteenth part of the schooner should pay to him " a divi- dend to the amount of not less than twenty-five per cent, per annum, and as much more as said schooner shall pay over twenty-five per cent, on her cost, clear of her bills," unless some serious accident should occur. Held, that the agree- rasit amounted to a guaranty on the part of de- fendant that the earnings of the schooner in each year should amount to twenty-five per cent, of her cost, and that the covenant to pay the same to plaintiff was subject to the implied warranty that he should continue to own his share in the schooner, and that defendant's liability there- under ceased upon plaintiff's parting therewith. —Supreme Ot., {2d I)ept.,) May, 1880. Bishop v. Alcott, 21 Hun 255. 128 GUARANTY, II., III., lY. ii. eeqtjirbmbnta of the statute of Frauds. 2. "What promises are not within the statute. Where the holder of a promis- sory note, ostensibly acting for himself, sells the same for a valuable consideration, and, upon the sale, promises orally that the note is good and will be paid at maturity, the promise is not within the statute of frauds, and the promisor is liable thereon in case of non-payment. — Ot. of App., Feb., 1880. Milks v. Eich, 80 N. Y. 269. 3. The promise may be regarded, not as one to answer for the default of the maker, but as one to pay the purchaser for the money had, in case the maker does not. lb. III. CONSTEUCTION AND OPEEATION. ' 4. Guaranty of payraent. One who guarantees the payment of a bond and mort- gage, guarantees the payment not only of the principal, but also of the interest that may accrue on the mortgage debt. — Wesic. Surr. Ct., Feb., 1881. Hurd v. Callahan, 9 Abb. N. Cas. 374. 5. The firm of B. Bros., distillers, at Evans- ■ville, Indiana, were accustomed, to the defend- ants' knowledge, to consign their products to one F. in New York and draw upon him as oc- casion required. December 29th, 1874, defend- ants wrote from New York to B. Bros, a letter saying " any drafts you may draw on F., of our city, we guarantee to be paid at maturity." Thereafter B. Bros, drew a draft on F. and pre- sented the same, together with the defendants' letter, to plaintiff, which discounted the draft, and forwarded it to New York, where it was dishonored. In an action brought against the defendants — Held, 1. That the letter operated as a special promise to B. Bros, to pay the amount of any drafts drawn by them upon F., which he refused to pay. 2. That the discounting of the draft by the plaintiff, upon the delivery to it of the letter, rendered the plaintiff an equitable assignee of the promise contained in the letter, and that, having an interest in the subject matter, the plaintiff could maintain the action to the same extent as its assignors could have done. — Stir preme Ct., {1st Dept.,) May, 1881. Evansville Nat. Bank v. Kauffmann, 24 Hun 612. 6. When a letter is to be considered as a gen- eral agreement to guarantee all drafts to be drawn against a certain person, enforceable by the holders thereof, discussed and the author- ities collated. lb. ^ 7. Guaranty of collection. This action was brought to foreclose a mortgage given by one D. to the'defendant, S., and by him assigned to plaintiff. The complaint alleged that the defendant, 8., by his assignment, " guaranteed the payment of the principal sum of said bond and mortgage, together with the interest there- on, from May 5th, 1874," and prayed for a judg- ment against him for any deficiency that might arise on the sale. The clause in the assignment was as follows : " I hereby guarantee the pay- ment of said bond and mortgage for five thou- sand dollars, and interest from May 5th, 1874j by due course of foreclosure and sale." Held, 1. That the guaranty was one of collec- tion and not of payment. 2. That no cause of action arose thereon against S. until the mortgaged premises ha<£ been sold and the amount of the deficiency arising on such sale determined. 3. That the complaint should be dismissed as to S — Supreme Ct., (\stDept.,) June, 1880. Van- derbilt v. Schreyer, 21 Hun 537. 8. Continuing guaranty. January 10th, 1877, the defendants executed an instru- ment whereby they agreed with the plaintiff's assignors that one P., who had purchased or was about to purchase coal of said assignors, should and would pay them such prices therefor at such time or times as might be agreed upon ■ between them and P., for all coal that might be delivered to him up to the 1st day of January, 1878 ; and in default of his so doing the de- fendants agreed to pay for the same, provided the amount so in default should not at any time- exceed the sum of $1000. Held, 1. That the guaranty was a continuing one. 2. That the proviso that the amount in de- fault should not at any time exceed $1000 was a limitation upon the defendants' liability, and. not upon the amount of coal to be furnished, and that the fact that the indebtedness due from P.. for coal exceeded at times that sum, did not re- lieve the defendants from liability upon the con- tract. — Supreme Ct., {4th Dept.,) April,. 1881. Pratt V. Matthews, 24 Hun 386. IV. Actions on Guabanties. 9. What may be shown in defence, generally. In October, 1874, one W., who-' was engaged in business in Buffalo as a pork- packer, presented to plaintiff, in the presence of defendant, a paper signed by the latter, which, after reciting that W. desired to increase his facilities for obtaining money from plaintiff, and proposed to pledge property in his posses- sion to secure such loans and advances, pro- vided as follows : " I do hereby promise and guarantee to said bank all such pledges of prop- erty, warehouse receipts, and other vouchers that may from time to time be given by said W. as collateral security to said bank for advances, discounts and loans of money, and promise on my part, that the property so transferred and set over to said bank shall not be misapplied or di- verted to any other purpose while such loans or advances remain unpaid to said bank, and if any default or misappropriation of the property so pledged shall be made, I do promise and agree to make good to said bank any deficiency, and fully satisfy the stipulations contained in. any such receiptt- or other vouchers therefor, without requiring any notice to me of the seve- ral loans and discounts that may be made by said bank to said W." Held, 1. That the defendant was, by the terms of the said instrument, not only bound to make good to the plaintiff any loss or deficiency caused by the misapplication or diversion by W. of property pledged to the plaintiff, but that he also undertook that W. actually had in his possession the property which he professed to pledge, and that he could not defend an action brought against him upon the said agreement by showing that the property, for the value oi which he was sought to be held, was not in ex- GUARANTY— GUARDIAN AD LITEM. 129 istence at the time the receipts therefor were given to the plaintiff, or that the property de- scribed therein was worth much less than the re- ceipts called for. 2. That the fact that the notes, to secure the payment of which the receipts had been given, had been renewed by plaintiff, and that the re- ceipts had been taken from tlie old notes and attached to the new ones, did not affect the de- fendant's liability upon liis guaranty. — Sujjreme Ct., (ith Dept.,) Oct., 1880. Farmers', Ac, Nat. Bank v. Lang, 22 Hun 372. 10. The concealment which will avoid a guaranty must be a fraudulent one ; if not fraud- ulent in fact or in law, the defence is not made out. — OS. of App., Sept., 1880. Howe Machine Co. D. Farrington, 82 N. Y..121; affirming 16 Hun 591. 11. Neglect to proceed against prin- cipal. The mere neglect of the owner of a mortgage to proceed against the mortgagor will not discharge the guarantor of its payment, even though the value of the land has so depreciated as to be inadequate to pay the amount due. — Westc. Go. Swrr. at., Feb., 1881. Hurd v. Callahan, 9 Abb. N. Cas. 374. 12. Amount recoverable. While in proceedings to sell the real estate of a deceased guarantor of a mortgage, the costs of foreclosure cannot be treated as a part of the debt, yet as they are incidental to the endeavor to collect the debt out of the mortgaged premises, the amount to be credited on the debt is the proceeds realized on the foreclosure after deducting the costs. lb. For the effect of the statute of frauds upon guaranties In common with other contracts, see CoNTBACTS, m.; also, Sales, I.; Vendob AND PXTEOHASBB, I. As to the nature and enforcement of the Lia- bility of a surety, generally, see Bonds, II. ; Ex- ECTTTOBS AND AdMINISTEATOES, 114-119 ; Peincipal and Stjebty, II. GUARDIAN AD LITEM. 1. Necessity of service of sunmions on infant before appointment. A guar- dian ad litem can only be regularly appointed for an infant defendant in foreclosure after ser- vice of summons personally or by the substi- tuted mode of service prescribed. An appear- ance, therefore, by one appointed guardian ad litem for an infant defendant who has not been served with summons is not a voluntary ap- pearance of the defendant within the meaning of the provision of the code, (§ 424,) which pro- vides that such an appearance shall be equiva- lent to personal service of the summons. — Ot. of App., March, 1881. IngersoU v. Mangam, 84 N. Y. 622 ; S. C, 61 How Pr. 149 ; canning 24 Hun 202. 2. In an action to foreclose a mortgage, one of the defendants, who owned an interest in the mortgaged premises, was an infant under the age of fourteen ; he resided with his mother in New Jersey. The summons was not served upon him, either personally or by publication, but was personally served upon his mother, in this state, who, after such service, upon her own application,, was- by order appointed a guardian ad litem, with authority to appear and defend in behalf of the infant, and she appeared and put in a general answer. Upon application to com- pel a purchaser at the sale under the judgment to complete his purchase — Held, that the court had no jurisdiction over the infant defendant to ap- point a guardian ad litem, as said defendant had not been brought in, and the action had notbeen commenced as against him (Code, J 416) ; that an appearance by the guardian was not an ap- pearance by the infant ; that the judgment, therefore, was not binding upon him, the sale under it did not convey a good title, and the motion was properly denied. lb. 3. When it need not be. Under the provisions of the Code of Procedure in refer- ence to the appointment of guardians ad litem. for infant parties to civil actions, the plaintiff in an action for partition could apply for and was entitled to an order appointing a guardian for a non-resident infant defendant, without a previous service of the summons upon or pre- vious notice to said defendant. (J 116, subd. 2.) —Gt. of App., Dee., 1880. Gotendorf v. Gold- sohmidt, 83 ». Y. 110. 4. Upon the petition of the plaintiffin a par- tition suit an order was made, as prescribed by said provision, appointing J), as guardian (id litem for certain non-resident infant defendants, unless they, or some one in their behalf, should, within a time specified, after service upon them of a copy of the order, procure a guardian to be appointed, and directing service upon the in- fants and their father. Service was made as directed, and at the expiration of the time lim- ited, no steps having been taken by or on be- half of the infants, D. was appointed such guar- dian, and duly qualified. The summons was served upon him, and the infants appeared by him and answered. JSeld, that this was suffi- cient, both under said provision of the code and under the provisions of the Revised Stat- utes in reference to proceedings in partition (2 Rev. Stat. 817, § 3,) which are made applicable to actions for partition under the code (J 448) ; and, it appearing that the court had jurisdic- tion of the subject matter, that a sale in pursu- ance of a judgment in the action gave a valid title as against said infant defendants. lb. 5. Bights of the guardian. A guar- dian ad litem, appointed for an infant judgment creditor, who was made a defendant in fore- closure, had no notice of his appointment until after final judgment. Held, that he should then, on promptly applying, be allowed to answer, especially where the priority of the lien of his judgment was in dispute. — Supreme Ct., {Sp. T.,) Jan., 1878. Farmers' Loan, &c., Co. v. Erie R'y Co., 9 Abb. N. Cas. 264. O. That an offer to amend the judgment, so as not to prejudice his right to collect the in- fant's judgment out of property not held under plaintiff's mortgage, should not be allowed to defeat the application, see lb. 7. The application will be denied, however, if plaintiff consents to strike out the infant's name as a party to the proceedings. lb. As to the appointment, powers, and duties of Special guardiams to sell lands of infants, see Infants, 6-13. 130 GUARDIAN AMD WARD, I., II., III. GUARDIAN AND WARD. I. Appointment; and Nature op the Tbust. II. Powers and Duties of the Guae- DIAN. m. Accounting ; and LiabUjITY op Sube- TIES. I. Appointment; and Natube op the Tbust. 1. Appointment by Supreme Court. The Supreme Court has no juriBdietion to ap- point a guardian for an infant where the infant is not within the jurisdiction, or domiciled there, and has no property therein. — Gl. ofApp.,' Sept., 1880. Matter of Hubbard, 82 N. Y. 90. 2. It seems that if an infant is a resident within the jurisdiction, although not domiciled and having no property there, the court has power to appoint a guardian ; so, alsp^ property gives jurisdiction to appoint a guardian thereof, although the infant is out of the jurisdiction and a resident abroad. The hringing of an infant, however, into this state by stratagem, for the purpose of giving jurisdiction, will not avail. lb. 3. — by surrogate. As to the powers and discretion of the surrogate, with respect to the appointment of guardians, and to notify rela- tives of the infant of an application for letters of guardianship, see Matter of Feely, 4 Redf. 306. 4. Testamentary appointment. Laws of 1862, ch. 172, g 6, declaring that no man should create any testamentary guardian for his child unless the mother, if living, should in writing signify her assent thereto, was repealed by chapter 32 of 1871, authorizing every father to dispose, by deed or will duly executed, of the custody and tuition of any living child, or one likely to be born, during its minority or for any less time, to any person or persons in possession or remainder. — Supreme Ot., (1st Dept.,) April, 1881. Fitzgerald v. Fitzgerald, 24 Hun 370 ; S. C, 61 How. Pr. 59. 5. Who should be appointed. One Marcellin died, leaving him surviving a daugh- ter, about nine years old, a second wife, and a paternal uncle and aunt. A day or two before his death, he handed to his wife a paper, upon which he had written " Keep the children. Be a good Catholic, live a gooa Catholic, and die a good Catholic, and pray, pray for me when I am dead." Neither the father, the daughter, nor the stepmother had any property. The aunt had some property, and desired to be appointed guardian of the child. Held, that the surrogate rightly appointed the stepmother its guardian. — Supreme Ot., {26, Dept.,) Feb., 1881. Matter of De Marcellin, 24 Hun 207 ; S. C. 4 Eedf. 299. 6. The bond — -when not required. Where a foreign trust company is appointed guardian of inputs, it seems that no bond will be required, if the statutes of the state in which such trust company is incorporated dispense with a bond in similar cases, making the prop- erty and capital of the company liable in case of default.— iV. Y. Surr. Ct., Aug., 1879. Matter of Cordova, 4 Kedf. 66. n. Powers and Duties op the Guabdian. 7. Of guardians in socage. A wife whose husband had died, leaving children of whom she is guardian in socage, may purchase, on foreclosure, lands held and mortgaged by her deceased husband. Lucky v. Odell, 46 Superior 547. III. Accounting, and Liabilitt op Sueb- TIES. 8. AUo'wances to guardian. For matters of practice upon the accounting of a guardian, who is also the parent of the ward, and when, in such case, allowances for the ward's support > and maintenance may be made, see Yoessing v. Voessing, 4 Eedf. 860. 9. Release by "ward. Where the guardian had a settlement with the ward after he attain- ed his majority, and assigned a mortgage to him for the amount found due, and the ward .gave a receipt acknowledging the assignment of the mortgage " as equivalent " to the amount found due — Hdd, that upon the accounting of ,the guardian, the surrogate had no jurisdiction ito try the question of the validity of the settle- ment, and that the receipt was conclusive upon the question of the acceptance of the mortgage by the ward in satisfaction of the amount due him, and could not be contradicted by parol evi- dence. — Kings Co. Surr. Ct., April, 1880. Down- ing V. Smith, 4 Kedf. 310. 10. Bight to proceed upon the bond. An accounting by a guardian is not a prerequi- site to an action against the sureties upon hia bond, in those cases in which the extent of his liability has been otherwise as definitely deter- mined as it could be by an accounting. — iSu- preme Ot., (4ep<.,) Jan., 1881. Enoch Morgan's Sons' Co."». Trox- ell, 23 Hun 632. 20. In determining whether buyers are likely to be deceived by the defendants, the character of the article sold, the use to which it is to be applied, the kind of people by whom and the manner in which it is bought, are all to be con- sidered, lb. 21. The plaintiff had for many years sold a polishing soap, put up in cakes, wrapped in paper, coated with tin-foil, and having around the edge of each cake a blue paper band, with gilt letters printed thereon. On each cake was stamped the words, " Enoch Morgan's Sons' Sa- polio." Thereafter the defendants prepared and sold a soap which they put up in cakes, wrapped in tin-foU, and having a blue paper band around them, similar to those used by the plaintiff, upon which were stamped the words, " Troxell's Pride of the Kitchen Soap." It ap- peared that the defendants sold and delivered the soap so put up, to grocers, with the intent that it should be, and the same was, in many cases, sold as "Sapolio." Seld, that the de- fendants should be enjoined from so preparing and selling the said soap. lb. 22. Trespasses. It seems that it is not essential under the code in case of a disputed title to land, that the title be determined by legal action before the court will interfere by injunction to restrain alleged trespasses by one of the parties. — Ol. of App., Nov., 1880. La- custrine Fertilizer Co. v. Lake Gruano, &c., Co., 82 N. Y. 476; affirming 19 Hun 47. III. GrBANTHfG AJSD DlSSOLVINa. , 23. Jurisdiction and powers of the court. An action was brought by a domestic corporation against two defendants — one a do- mestic corporation and one a foreign corpora- tion, having an office and agency and doing business iu this state — for an accounting by the foreign corporation, under a contract alleged to exist between it and the plaintiff; to restrain it from an alleged unlawful interference with cer- tain rights claimed by the plaintiff under the alleged contract, which interference consisted in Sart of threatened acts, which could only be one in another state, and in part of a combina- tion with the other defendant, undertaken to be consummated in this state, with the view of ousting the plaintiff from its claimed rights and vesting them in such other corporation, and of acts done here, directing, or which would result in, the doing of the threatened acts in the other state. Held, 1. That the courts of this state had no jurisdiction to restrain the doing of the acts threatened to be done in the other state ; nor, if they have been done, to compel the undoing of them and restoration of things to their for- mer condition. 2. That the courts of this state have jurisdic- tion over the action so far as to compel an ac- counting, and to restrain the doing of the acts threatened to be done in this state. — Superior Cl., Dec., 1 880. AUantic, &c., Teleg. Co. *. Bal- timore, &c., E. E. Co., 46 Superior 377. 24. Tlie bond or undertaking. The insolvency of one of the sureties to an under- taking given by the plaintiff upon procuring an injunction, furnishes no ground for the granting of an order staying generally all proceedings on the part of the plaintiff in the action ; the order should direct that the injunction be dissolved, unless the plaintiff file a new undertaking, within a specified period. — Supreme Ot., (Isi Dept.,) Nm>., 1880. EandaU v. Carpenter, 22 Hun 571. _ 25. Grounds for dissolving. This ac- tion was brought by plaintiff to restrain the de- fendant, the commissioner of public works of the city of New York, from taking down and removing, as a public nuisance, a building erected by plaintinj partly upon land belonging INJUNCTION, III., IV. 143 to her and partly upon a portion of the street in front thereof. Upon a trial, had before the court, without a jury, the complaint was dis- missed, with costs. Thereafter, upon plaintiff's .application, an order was made restraining de- fendant from interfering with plaintiff's build- ing, pending an appeal taken by her from the judgment rendered against her. SeM, that it was error to grant the order, and that the same should be reversed. — Swpreme Ct., (\st Dept.,) Nov., 1880. Emmons v. Campbell, 22 Hun 582. 26. Effect of entry of judgment to dissolve injunction. The entry of a final judgment in an action does not, unless it be so expressly declared therein, dissolve a temporary injunction theretofore granted in the action, where the defendant has appealed from the j udgment and given an undertaking to stay all proceedings during the pendency of such appeal. — Supreme Ct., {1st Dept.,) May, 1881. Gardner V. Gardner, 24 Hun 627. 27. The motion to vacate. Under Code of Civ. Pro., J 626, the application to the Supreme Court to vacate an injunction should be ex parte, and wholly based upon the papers upon which the order was granted. The code does not contemplate a hearing of both parties on an application under that section. — Supreme Ct., (1st Dept.^ May, 1880. Coffin v. Prospect Park, &c., R. B. Co., 61 How. Pr. 105. 28. The complaint and the affidavit upon which the injunction order was made were verified by the Belgian consul in New York, and all of the allegations thereof were upon in- formation and belief. Upon the hearing of a racition to vacate the injunction, which was made upon the original papers only, the plaintiff was allowed to read depositions taken in Belgium, they being the sources from which the consul had derived his information and formed his be- lief as to the facts set forth in the complaint and affidavit. Held, no error. — Simreme Ct., (2d Dept.,) Dec., 1880. Zellenkoff ». Collins, 23 Hun 156. 29. — to continue. Where the injunc- tion order was merely preliminary to an order to show cause why the injunction should not be continued, which order is still pending before the Special Term, the order of the General Term should not interfere to prevent its hearing. On such hearing the parties may present additional facts affecting the right to the injunction ani^ its continuance. — Coffin v. Prospect Park, &c., E. E. Co., svpra. 30. Punisliment for violating the order. That the injunction is too broad, and restrains the doing of acts which the court has no jurisdiction to restrain, as well as acts over which the court has jurisdiction, is no excuse for the violation of the injunction by the doing of the acts over which there is jurisdiction. — Su/perior Ct., Dec., 1880. Atlantic, &c., Teleg. Co. v. Baltimore, &c., E. E. Co., 46 Superior 377. IV. Damages on Dissoltttioit. Eemedt on Bond oa Undebtakiug. 31. The right to damages. cannot be assessed upon undertakings given on granting an injunction until a final decision that plaintiff was not entitled thereto, as until then there is no breach of the condition. — Ct. of App., Oct., 1880. Johnson v. Elwood, 82 N. Y. 362. 32. When reference to ascertain damages is proper. Such a reference can only be had when there has been a final deter- mination that plaintiff was not entitled to the injunction, or something equivalent to such a determination. — Swpreme Ct., (Ath Dept. Sp. T.,) May, 1881. Neugent v. Swan, 61 How. Pr. 40. 33. The fact that the injunction was dissolved on motion, pending the action, is not enough, aa that may have been done for various reasons in no way affecting the merits, and yet the court might, at the final hearing, decide that the de- • fendant ought to be enjoined. 26. 34. In an action to restrain defendant from entering upon certain lands and cutting timber, etc., a temporary injunction was granted ; this was dissolved by stipulation on the termination of another suit determining the title to the land. After this, defendant died ; on motion of his ad- ministratrix an order was granted requiring plaintiff to elect whether or not he would con- tinue the action against her, and subsequently, upon her motion, the action was discontinued and judgment entered accordingly. Held, 1. That an order of reference to ascer- tain damages by reason of the injunction was improperly granted ; that as the action abated upon the death of the defendant, and the cause of action did not survive, the court had no au- thority to direct a discontinuance. 2. That there was no breach of the condition of the undertaking, which provided for the pay- ment of damages in case the court should finally decide that plaintiff was not entitled to the in- junction, as there had been no such decision. — Ct. of App., Oct., 1880. Johnson v. Elwood, 82 N. I. 364 ; reversing 15 Hun 14. 35. Amount recoverable — costs, ex- penses, &C. On the hearing of an unsuccess- ful application to dissolve a temporary injunc- tion granted in this action, the defendants' counsel confined his objections to alleged defects in the plaintiff's papers, and did not use affi- davits relating to the merits of the action, which he had previously prepared. Upon the trial of the action the complaint was dismissed. Upon a reference ordered to ascertain the damages sustained by reason of the injunction — Held, that the sureties to the undertaking were not liable for the costs and expenses of the unsuc- cessftd application to dissolve the injunction. — Supreme Ci.^lat Dept.,) Nov., 1880. Langdon V. Gray, 22 Hun 511. 36. In this action, brought to restrain the defendant from interfering with a boom across a certain river, the plaintiffs procured an order temporarily restraining him from so doing, and requiring him to show cause why the injunction should not be continued until the entry of final judgment in the action. Upon the return day an order was made, after a partial hearing upon the merits, providing that if the plaintiffs should, if required by the defendant, give an undertaking for a larger sum, the injunction should be continued until the final determina- tion of the action. The order also authorized the defendant to give notice of a further hear- ing upon the order to show cause before another judge. Increased security was given, but no further hearing was had, and upon the trial a judgment was rendered in favor of the defend- ant. Held, that the trial was necessary to enable the defendant to get rid of the injunction, and that he was entitled to recover the fees of his 144 INJUNCTION, IV.— INSOLVENCY. counsel thereon as a part of the damages secured by the undertaking.— Stjprem* Gt., (3d Dept.,) Jan., 1881. Newton v. Eussell, 24 Hun 40. As to injunctions in , see Execution, V. , . ^ ^ As to the jurisdiction and procedure m Courts of equity, generatty, see EcitJiTir. INJURY. To the Person, see Assattlt; MTlinoiPAi, CoRPoEATioNS, III. ; Negligence ; Kailboab COMPANIES, IV., V; To Property, see Tkespass ; Tbover. To Beputation, see LrBEL; Slandee. To Vessels, by collinion, see Shipping. As to the right of action for Injuries causing ' h, see Homicide, II. INSANE PERSONS. I. Disabilities op Insane Persons. n. The iNQinsiTiON. Appointment op Com- mittee, &c. I. DisABnjTiES or Insane Persons. 1. Liability on oontra(5,ts. Where a party seeks to sustain a contract made with a lunatic, on the ground that it was made in good faith, for the benefit of the lunatic and without knowledge of his incapacity, and that it has been so far performed tliat said party cannot be placed 171 statu quo, these facts must be alleged and proved.— W. of App., March, 1881. Eiggs V. American Tract Soc, 84 N. Y. 330 ; reversing 19 Hun 481. 2. — for money loaned. It seems, that an obligation entered into by an insane person to repay money loaned, of which he had the benefit, is valid where the lender acted in good faith, without fraud or unfairness, and without knowledge of the insanity or notice or inforina- tion calling for inquiry ; and an action is main- tainable thereon.— C(. of App., Jan., 1880. Mu- tual Life Ins. Co. v. Hunt, 79 N. Y. 541 ; affirming 14 Hun 169. The fact that the borrower was subsequently, . upon inquisition taken, declared to be insane, does not affect the right to recover. Ih. II. The Inquisition. Appointment op Com- mittee, &c. 3. Application for the commission. The failure to notify one of the heirs of the lunatic of the application is, at most, only an irregularity, as he has no absolute right to notice, and the irregularity will be deemed waived by him, unless he takes advantage of it immediately upon learning of the proceeding. He cannot wait until after the inquisition has been found before raising his objection of want of notice, without clearly showing some injury there&om. — Supreme Ol., {^Saraioga Sp. T.,) March, 1881. Matter of Kogers, 9 Abb. N. Caa. 141. 4. Eule 25, of the Supreme Court, requiring an ex parte application for an order, lo state whether any prior application has been made, does not apply to an order by which a special proceeding is instituted. lb. 5. The omission to comply with the rule is aiv irregularity which must be taken advantage of on the first opportunity ; if a party has delayed raising the objection until much labor and ex- pense have been incurred, and taken the chances of a result favorable to his wishes, he cannot avail himself of such objection. lb. 6. The finding'. It is unnecessary to use the word "lunatic" in a finding under an inqui- sition of lunacy; a finding that the alleged lunatic "at the time of taking the inquisition is of unsound mind, and mentally incapable of governing himself or his affairs, and that he haa been in the same state since " a given date, is sufficient. lb. T. A person of unsound mind who is mentally incapable of governing himself and his affairs, comes within the definition of lunacy, as laid down in the code, (? 3343). 76. 8. Application to set aside inquisi- tion. An application to set aside an inquisi- tion is addressed very much to the discretion of the court, and brings the case before it on the merits. lb. 9. An inquisition will not be set aside for a mere irregularity, when there is no doubt as to the lunacy of the party concerned. lb. 10. Action against committee — de- fences. Where, in an action brought against the committee of a lunatic to recover for neces- saries furnished to one claiming to be his wife, it appears that a marriage was duly solemnized between the lunatic and the woman, which was followed by cohabitation continuing down to the time of the appointment of the committee, when the woman was obliged to leave and live apart irom him, the committee cannot set np as a de- fence that the marriage was void because the husband was at the time of its solemnization and ever since had been a lunatic, without lucid in- tervals. — Supreme Cl., [Ath Bept.,) AprU, 1880. Stuckey v. Mathes, 24 Hun 461. INSOLVENCY. 1. Notice to creditors, service, Attorney-General «/. Nor. Amer. Life Ins. Co-, 82 N. Y. 172. 115. The said act of 1866, and the provis- ions of the act of 1869, and of the act of 1867, Laws of 1867, ch, 708,) making similar pro- vision for a special fund for the security of reg- istered policy-holders, are not violative of the constitutional provision (art. VII., § 9,) prohibit- ing the giving or loaning the credit of the state, "in aid of any individual, association or cor- poration," as the credit of the state is not given or loaned by said acts ; it incurs no responsibility except as a depository. lb. 116. The provisions of the said act of 1869, providing for arresting the business of a com- pany, when its further prosecution will be in- jurious to the public interests, and for the ap- pointment of a receiver, etc., are not repugnant to the provisions of the state and federal con- stitutions, prohibiting the depriving of a person of property without due process of law. lb. ILY. Nor do the said provisions in reference to registration, impair the obligation of con- tracts then existing between a company and its policy-holders. 76. 118. Assignments of mortgages to the superintendent. Where the super- intendent of the insurance department has ac- cepted from an insurance company an assign- ment of a mortgage as a part of the deposit to be made with him, under the requirements of i the insurance law, on the faith of a representa- j tion on the part of the mortgagor that there is j no legal or equitable defence to the same, he [ can avail himself of the doctrine of estoppel j prohibiting a debtor, upon the faith of whose | statements an assignment of his obligation haa 158 INSURANCE, VII.— INTEREST, I. "been accepted, from disputing such statements. — Cl. of App., March, 1881. Smj-tb v. Munroe, 84 N. Y. 354. 119. Defendant A. executed to an insurance •company his bond for $40,000, secured by mort- gage executed by him and by defendant J., his wife, upon lands owned by the latter. At the same time the mortgagors signed a written in- strument in which they cons«nted to the assign- ment of the mortgage to the superintendent of the insurance department, and stated that no portion of the mortgage debt had been paid and that there was "no offset to or legal or •equitable defence to the same." The insurance company became insolvent and a receiver of its ' effects was appointed. In an action by the su- perintendent to foreclose the mortgage, wherein the defence of usury was interposed, it appeared that it was the custom of the insurance depart- Tuent to require such statements as a condition precedent to the acceptance of assignments of mortgages, and that the instrument was takea •and deposited with the other papers in the office of the superintendent. Held, 1. That it was to be presumed that the superintendent acted in accepting the assign- ment, and as an essential part of the transac- tion, upon the faith of the representations in said instrument; that, therefore, a finding to that effect was justified ; and that defendants were estopped from availing themselves of said defence. 2. That in the absence of proof of fraud, or want of knowledge, it was a legal presumption that the parties executing said instrument did so with knowledge of its* contents; and that this presumption was not affected by the fact that one of them was a married woman ; also, 4hat as against a person who had acted upon the faith of her representation she could not be exonerated therefrom by reason of her igno- rance. 3. That knowledge on the part of the insur- ance company of the usury could not be at- tributed to and did not affect the superintend- ent. 4. That evidence was competent showing the custom of the department in such transactions. lb. Compare Smyth v. Knickerbocker Life Ins. Co., 84 N. Y. 589. 120. Charges for examination of companies,, and ho-w audited. Laws of 1873, ch. 593, I 2, provides that " all charges for making examinations of any insurance company, and all charges against any company by any attorney or appraiser of this depart- ment, shall be presented in the form of an itemized bill, which shall first be approved by the said superintendent, and then audited by the comptroller, and shall be paid on his warrant, drawn in the usual manner, upon the state treasurer." Hdd, that under the said section the approval of a bill by the superintendent was not conclusive upon the comptroller, but that the latter had power to examine and pass upon and readjust a bill approved by the su- perintendent and presented to him for audit and payment, as prescribed in the said section. —Supreme Ot., (3d Dept.,) May, 1881. Matter of Murphy, 24 Hun 592. For decisions regulating the organization and management of insurance companies. In common ■with other corporations, see Coepoeations. INTENDMENTS. Appeai,, 23 ; Evidence, 11-18. INTENT. Evidence of, and when presumed, see Eyr- DENCE, 16. Assaults with Special intent, see AssAUjiT. When a Question for the jury, see Qitestionb or Law and Fact. Effect given to Intent of testator, in construing ■will, see Wills, V. L n. INTEREST. The Eight to Intebest. The Bate ; and Computation. I. The Eight to Inteeest. 1. On contracts, generally. Defend- ant contracted to pay to plaintiff $5000 " out of any moneys or property " received by him from the sale or license of certain patented in- ventions. Defendant assigned the patents, the assignment to take effect when the purchase price agreed upon ($25,000) was paid. The assignee did not pay, and defendant revoked the assignment. Defendant, with the owners of certain other patents, thereupon assigned their patents to H. in trust, he agreeing to grant licenses and sell royalties, and to divide the proceeds as soon as received, in certain spe- cified proportions, between the assignors and himself, the amount due plaintiff, however, to be paid out of the first proceeds. In an action upon the contract with plaintiff — Seld, that he was not entitled to interest from the time of the first or the second assignments, but only from the time moneys were received on sales or licenses. — Ot. of App., Oct., 1880. Howard v. Johnston, 82 N. Y. 271. 2. Legacies. Where a legacy to an in- fant, as to whom the testator is in &>co parentis, is made payable when the infant becomes of age, and such legatee has no other provision in the meantime, or any maintenance allotted by the will, the legacy carries interest from the time of the death of the testator. — &. of App., Dec., 1879. Brown v. Knapp, 79 N. Y. 136. ' 3. It is not needed for the application of this rule that the testator should have been under a legal obligation at the time of his death to sup- port the legatee; it is sufficient that he has voluntarily assumed such a relation, similar in some respects to that of parent, as that it may be presumed he did not intend to leave the legatee without support. lb. 4. Plaintiff's father, who was the son of B., the testator, entered the military service of the United States i-n 1863. Before he entered the service B. said to him, that if he never re- turned his wife and son would always be cared for. After his departure B. took plaintiff and his mother to his (B.'s) house to live. Plaintiff's father died in the service; plaintiff and his INTEREST, I., II.— INTERPLEAD F-R. 159 mother continued to live with B., being sup- ported by him until his death; plaintiff was at that time about seven years old. By his will B. gave to plaintiff |3000, which he directed his executor to pay when plaintiff attained the age of twenty-one years. The residue of his " real and personal estate " B. gave to his son W., whom he appointed executor. W. qualified and took possession of the estate. Plaintiff had no property except that given him by the will. Sdd, that the evidence authorized a finding that the testator assumed the paternal care of plaintiff; that he was entitled to inter- est upon the legacy at the rate of six per cent, per annum from the death of the testator, dur- ing his minority ; and tljat W. was personally liable therefor, lb. 5. The will gave to a daughter of the testa- tor $4000, to be invested by the executor " for her use, support and maintenance during her natural life," with directions that if the interest should prove insufficient, the executor should apply so much of the principal as should be necessary for her support. JSetd, that the pre- sumption in favor of plaintiff, as to interest, was not overthrown by the language used in this bequest. lb. 6. Orders for money. The plaintiff, having received an assignment of a non-interest bearing order, drawn upon the defendant's treas- urer, presented it on September 3d, 1872, to the treasurer for payment, which was refused for want of funds. On August 26th, 1874, the order was again presented to the treasurer and paid by him, he then telling the plaintiff that he could not pay any interest thereon ; that it was cus- tomary to have bills for over-due interest made out and presented to the common council, who issued orders therefor which he could pay. The order was then surrendered, the plaintiff stating that he would take the money, if he would not thereby release his claim for interest, but would not if he did thereby release his claim. The common council having refused to allow the claim for interest, this action was brought to recover the amount due. Hdd, that the plaintiff was not entitled to recover. — Supreme Gt., (3d Dept.,) Nov., 1880. Middaugh e. City of Elmira, 23 Hun 79. 11. The Bate ; and Computation. 7. "Wlien computable £rom oom.- xuencem.ent of action. In an action for labor done and materials furnished, it appeared that no time was fixed under the agreement with plaintiff when the job was to be completed, and that it was completed and accepted by de- fendant Septeniber 9th, 1874. Held, that the bringing of suit was a sufficient demand, and plaintiffs were entitled to interest from that time at least. — Supreme Ct., (4 36. Defendant set up the pendency of the- former action as a bar. Held, untenable, as at the time of bringing the former action the title was in C, and the subsequently-acquired title of plaintiff from C. could not avail him in that action, it was, therefore, necessary to bring a: new action to recover upon that title ; that al- though if the plaintiff had evidence which would sustain the first action, the same evidence might entitle him to recover in the second, the evidence upon which he relied in the second would not sustain the first. lb. 37. Privies, as -well as parties, estopped. An estoppel by a former action, effectual as between the parties, arises also in favor of or against those in privity with them. — Ct. of App., Jan., 1880. Smith v. Smith, 79- N. Y. 634. 38. Doctrine of former adjudication as applied in criminal cases. Where,, on the trial of an indictment containing differ- ent counts, there is a specific verdict of guilty on one count and the verdict is silent as to the other counts, it is equivalent to an acquittal on those counts, and a judgment on the verdict is, as to them, a bar to further prosecution. — Ct. of App., March, 1881. People v. Dowling, 84 N. Y. 478. 39. Upon a reversal of the conviction the trial and conviction are not a bar to a new trial upon the count on which the verdict of guilty was rendered ; but the reversal does not dis- turb the verdict of acquittal upon the other counts. lb. 40. An indictment contained two counts, one charging burglary and larceny, the other the receiving of stolen goods with know- ledge; there was no separate count for bur- glary or larceny. The prisoner's counsel, on trial, moved to strike out the count " for bur- glary" because of failure of proof; this was granted ; he then moved to quash the count " for larceny," which was denied. The question of lar- ceny was submitted to the jury without objec- tion and the prisoner was convicted thereof. The conviction was reversed on writ of error and a venire de novo ordered. Held, tliat the effect of the decision upon the motion to strike out the count for burglary was simply to hold that the prisoner could not be convicted, on the evidence, of burglary, and to strike out so much, of the count as charged that offence ; that the JUDGMENT: DECREE, 111., IV., V., VI., VII. 165 new trial must be had upon the same indict- ment ; but that upon the new trial the prisoner «ould only be tried for larceny. lb. 3, Collateral impeachment, 41. Right to impeach judgment for "want of jurisdiction. The j urisdiction of quasi judicial officers to make a decision in any case is always open to inquiry, and the decision may be attacked collaterally for want 6f juris- -diction. — Ct.of App., March, 1881. Cagwin v. Town of Hancock, 84 N. Y. 532 ; reversing 22 Hun 201. 42. — for fraud. A judgment recovered 'by the vendor of a chattel on the contract of sale is not an affirmance of such sale, or a bar to his recovery of the chattel where fraud is subse- •quently discovered. There is no election of remedies until the vendor has knowledge of the fraud.— CSots. Pleas, {Oen. T.,) March, 1881. Sacia v. Decker, 1 Civ. Pro. 47. IV. Lien. Pkiokity. 43. Lien of judgment against dis- "tributee of undistributed fUnd. As to begotten," the principal of the same to revert to certain persons named in the will. Held, 1. That the bequest was a general one to John for life, (and to his widow so long as- she should remain his widow,) with remainder over as specified in the will. 2. That as no trustee for the fund was created by the will, the executrix should either retain and invest the same, or that security should be required of John in case it were delivered to- him. 3. That even if John, who was a non-resident of the state, was to be deemed a testamentary trustee of the fund, the surrogate was author- 172 LEGAqiES, I., II., III., IV. ized, by section 1 of chapter 482 of 1871, to re- •quire him to give security for its ultimate dis- position in accordance with the direction of the ■will.— /Supreme Ot., {3d Depl.,) Jan., 1 881. Mont- fort V. Montfort, 24 Hun 120. 6. Annuities. A bequest of the interest •of a particular sum will not be construed as giv- ing an annuity, though the interest is payable annually, but simply as a gift of the income or interest of the particular amount. — N. Y. Surr. €t., Dec, 1879. Stubbs v. Stubbs, 4 Kedf. 170. • Y. While a trust estate created by will, pro- Tiding for accumulations for the benefit of adults as well as minors, is void, yet an annuity *o the widow, provided for under such trust es- tate, also charged upon the real estate, survives 4he failure of the trust. But such annuity is subject to a proportional deduction in favor of an after-born child, who will take as if the father died intestate. — Supreme Ct., {i^. T.,) Nm., 1880. McCormack v. McCormack, 60 JHow. Pr. 196. 8. Interpretation on question of "validity. A testator by his will gave and be- •queathed "to each and every grandchild (if any) that may be hereafter born within twenty years after my death, and before the final settle- ment of my estate, the sum of $1000, * * MASTER AND SERVANT. 181 the validity of his claim against the company. Wheeler v. Miller, supra. > 32. Matters of defence. In such an action the defendant cannot dispute the validity of the judgment recovered against the com- pany, or of the execution issued against it thereon, for mere irregularities. lb. IV. Dissolution, Becbivee, &c. 33. Right of stockholders to sue for dissolution. A portion of the stockholders of a manufacturing corporation cannot maintain an action to dissolve it ; nor have they, in the absence of proof of fraud, mismanagement or wrong-doing on the part of its directors, an ab- solute right to have a receiver of its property appointed ; and this, although the corporation be utterly insolvent ; it is at least discretionary with the court. — 01!. of Ami., April, 1880. Denike v. New York, &c, Lime and Cement Co., 80 N. Y. 599, 606. 34. It seems that a manufacturing corpora- tion may temporarily lease its property to some person who will continue and carry on its busi- ness. If, however, such a lease is unlawful, it does not give a portion of the stockholders a standing in a court of equity to ask for a disso- lution of the corporation. lb. 35. O-rounds for dissolution. Under the provisions of the statute, (1 Bev. Stat. 604, ? 4 ; 2 Id. 463, I 38,) providing that a corpora- tion shall be deemed or adjudged to be dis- solved, when it shall have remained insolvent, •or neglected or refused to pay its notes or evi- dences of debt, or suspended its business for one year, a corporation cannot be said to have com- mitted an act of insolvency, or to have neglected or refused to pay its obligations, because its de- mand notes remain outstanding until payment has been demanded. lb. ifor rules applicable to manufacturing com- panies In common with other corporations, see CoBPOBATiONS; and the titles of the various corporate bodies. ■' MAPS. Admissibility and effect of, As evidence, see Evidence, 77. MARINE COURT OF CITY OF NEW YORK. Appeal, 140-142. MARINE INSURANCE. Insurance, IV, MARITIME LIENS. SnippiNa, 7. MARRIAGE. Husband and Wipe, I. MASTER AND SERVANT. 1. The contract of hiring. In case of a contract of hiring for an undescribed period, although the contract may take effect immedi- ately on its being made, yet, if the nature of the service to be performed under it is such that the performance of it regularly commences at a cer- tain period of the year and ends at a certain period, no service being performed between the last-named period and the recurring first-named period in the next year (which circumstances are well known to both parties), the date of the commencement of the year for the running of the contract as one from year to year under the general rule will be the first-named period ; the time intervening between the makmg of the contract and such first-named period forms no part of such year. — Superior Ct, June, 1880. Tyng V. Theological Seminary, &c., of Ohio, 46 Superior 250. 2. Discharge. A household servant, em- ployed by the month, may be discharged at the expiration of any month. — City Ct. of JBrookh/n, {Gen. 1:,) Jan., 1880. Condon v. Callahan, 9 Abb. N. Cas. 407. 3., Liability of master to third per- sons for servant's acts. Whether the wrongful act of the servant of a railroad com- pany, not inconsistent with the nature of his employment, was done in pursuance of his em- ployment and in the interest of his employers, or wickedly and maliciously out of his own spite, i? always a question for the jury. When the jury find such act to have been done in pur- suance of the servant's employment and to serve the interest of the employer, the employer is liable. — Superior Ct., Dec, 1880. Hoffman v. New York Central, &c., K. E. Co., 46 Superior 526. 4. The above principles applied to a state of facts, showing the plaintiff, a lad eight years of age, being a trespasser on one of the defendant's trains, then moving at the rate of ten miles an hour, was kicked therefrom by one of the de- fendant's servants, thereby suffering severe in- juries : the court holding that there was no distinction in the authorities between the com- mission of such an act by the conductor and by other servants of the company. lb. 5. It was shown upon the trial that plaintiff was thrown from defendant's car by the con- ductor in charge thereof while it was in motion. The court charged that if the conductor "acted neither maliciously nor with the view to effect some purpose of his own, but within the general scope of his employment, while engaged in de- fendant's business, and with a view to the fur- therance of that business and the defendant's interest, believing, upon the appearances before him, and upon which he had to exercise his judgment, that his duty to defendant required him to act, then the defendant is responsible for the manner in which he acted, in excess of his authority." Held, correct. — Superior Ct., Jime, 1880. Schultz V. Third Ave. R. E. Co., 46 Superior 211. 182 MASTER AND SERVANT. 6. Liability of master to servant, generally. Upon the trial of this action, brought to recover damages for the death of the ' plaintiff's intestate, which was alleged to have been occasioned by the defendant's negligence, it appeared that the deceased, an employee of the defendant, while engaged in coupling cafs, caught his foot in an open ditch or trench, and being unable to extricate it was run over and killed. The counsel for the defendant requested the court to charge that if this ditch had re- mained, while the deceased was there, in the condition in which it was at the time of the accident, and in plain sight and he knew of its existence, hfe took the risks incident to its ex- istence, and that the plaintiff could not recover. Held, that the court should have charged as requested, and erred in qualifying it by charg- ing that that was so if he understood fully all the dangers that might under any circumstances result to him from the existence of the ditch. — /Supreme Gl , (4th Dept.,) Jan., 1881. De Forest V. Jewett, 23 Hun 490. "7. — for defective macliinery. A master is not absolutely bound to furnish his servant with safe machinery, nor does he guar- antee that the machinery furnished is perfect. He is only required to use due care and dili- gence in the selection and use thereof. The degree of care required of him is to be meas- ured by the circumstances of each case, and de- pends upon the kinds of machinery used, the risks incident to its use, and the hazards of the business in which it is used. — Svpreme Gt., (3d Bept.,) Sept., 1880. Jones o. New York Cen- tral, &c., E. E. Co., 22 Hun 284. 8. Where a master furnishes defective ma- chinery for use in the prosecution of his busi- ness, he is not excused by the negligence of a servant in using the machinery from liability to a co-servant for an injury which could not have happened had the machinery been suita- ble for the use to which it was applied. — Gt. of ■App., June, 1880. Cone v. Delaware, &e., E. R. Co., 81 N. Y. 206. 9. — for negligence of fello'w-ser- vant. The liability of a master for an injury to an employee, occasioned by the negligence of another employee, does not depend on the grade or rank of the latter, but upon the character of the act in the performance of which the injury arises. — Gt. of App., Sept., 1880. Crispin v. Babbitt, 81 N. Y. 516. 10. If the act is one pertaining to the duty the master owes to his servants, he is responsi- ble to them for the manner of its performance ; but if the act is one pertaining only to the duty of an operative, the employee performing it, whatever his rank or title, is a mere servant, and themaster is not liable to a fellow-servant for its improper performance. lb. 11. Instances. McC, plaintiff's intestate, was employed in the yard of defendant, to assist the yardmaster, L. ; he was hired by L. and was under his control and supervision. While McC. was engaged, by the direction of L., in attaching a damaged car standing on );he track to another, L. negligently signaled to an engineer, whose train stood upon the track, to back the train, which he did, without signal or warning, and in consequence McC. was crushed between the cars, receiving injuries causing his death. In an action to recover damages — Held that the yardmaster was to be deemed a fellow- servant with the deceased as to all acts done in the range of the common employment, except those done in the performance of some duty which defendant owed to its servants ; that the act in question was not one of that character j and that, therefore, defendant was not liable. — Gt. of App., Feb., 1881. McCosker v. Long Island E. E. Co., 84 N. Y. 77. 12. The defendant, a railroad company, was accustomed, to the knowledge of its employees, to run upon its single track, extending from Syracuse to Kochester via Auburn, extra or wildcat trains, the movements of which and of the regular trains were regulated by telegraphic dispatches. By the printed rules with which employees were furnished, its telegraph ope- rators and engineers were directed to comply strictly with the orders received by telegraph. The defendant's superintendent having decided, on August 22d, to seni an extra freight train to Cayuga, telegraphed to its operator at that sta- tion to have train No. 50, of which the plaintiff's intestate was the engineer, held on its arrival at that station until further orders. The operator having received the message, and replied to defendant's superintendent, found the intestate, and, by mistake, told him to hold his- train until the arrival of a regular train, known as No. 61, instead of telling him to hold it for orders. The intestate having left the station with his train after the arrival of No. 61, ran into the extra about a mile and a half from the depot, and was killed. In an action to recover the damages occasioned by his death, the court charged the jury that the telegraph operator and the deceased were not co-employees. Held, that this was error. — Supreme Gt., (ith Dept.,) Jan., 1881. Dana v. New York Central, &o., E. E. Co., 23 Hun 473. 13. ■When the co-servant ■will be deemed, the master's alter ego. An act or duty which a master is bound to perform for the safety and protection of his servant cannot be delegated so as to exonerate him from liability for an injury to the servant caused by an omission to perform it, or by its negligent performance; and this, whether the misfeas- ance or non-feasance is that of a superior or inferior officer, agent or servant, to whom the doing of the act or the performance of the duty has been committed. "The act or omission is that of the master also, irrespective of the question whether it was or was not practicable for the master to act personally, or whether he did or did not do all that he personally could do to secure the safety of the servant. — Gt. of App., Feb., 1880. Fuller v. Jewett, 80 N, Y. 46, 52, 14. One H., who acted as the superintendent of the defendant, a gas company, caused a trench to be dug in a street to expose a gas- pipe therein, in order that it might be exam- ined and repaired. The trench having, by mistake, been dug about two and a half feet south of the pipe, H., in order to avoid open- ing a new trench, ordered the men to under- mine the earth north from the trench to the pipe, and to throw the dirt removed upon the top of the earth which covered the excavation over the pipe. The overhanging bank having fallen in and injured the plaintiff, an emjiloyee of the defendant, while he was engaged in ex- amining the pipe, he brought this action to re- cover the damages occasioned thereby. Held, MASTER AND SERVANT— MECHANICS' LIEN, I. 183 that the questions whether or not H. was, as to the act in question, to be regarded as the alter ego of the company, and whether or not the ev- idence showed him to be an unskillful and im- proper person to be employed as a superintend- ent, should have been left to the jury, and that it was error to direct a non-suit. — Supreme Ct., (2d Dept.,) Sept., 1880. Devine v. Tarrytown, &c., Gas Light Co., 22 Hun 26. 15. "When he -will not be. In an ac- tion to recover damages alleged to have been occasioned by defendant's negligence, it ap- peared that plaintiff was a laborer employed in defendant's iron works, which, as plaintiff's evidence tended to show, were under the man- agement and control of one B., defendant him- self not living in the place where the works were located, and only occasionally visiting them. At the time of the accident, plaintiff was at work near an engine, when B. carelessly let on steam and plaintiff was injured. The court charged that although B., as agent or su- perintendent, represented and stood in the place of defendant, he did so only in respect to those duties which defendant had confided to him as such. Defendant's counsel then re- quested the further charge, that as to any other acts or duties performed by B., in and about defendant's works or business, he was not to be regarded as defendant's representative, but as a fellow-servant with plaintiff. This the court refused to charge, but left it as a question of fact to the jury. Held, error; that it was a question of law, and the court should have charged as Requested. — Ct. of App,, Sept., 1880. Crispin v. Babbitt, 81 N. Y. 516. 16. The court was also requested, and re- fused, to charge that in letting on the steam B. was not acting in defendant's place. Held, error, lb. For rules regulating the law of Agency, gen- erally, see Pbencipal and Agent. For liability of BaUroad companies, for injuries to servants in their employ, see Railroad Companies, 45-53. MATERIAL-MEN. Mechanics' Lien ; Shipping, 7. MAYOR. Removal of Officers by, see New York City, 55, 56. MEASURE OF DAMAGES. Damages, II. MECHANICS' LIEN. I. The Lien ; and Eights of the Parties, GENERALLY. II. Proceedings to Foreclose. I. The Lien ; and Eights of the Parties, generally. 1. Interpreting the statutes. The act of 1875 (Laws of 1875, ch. 379,) gives to a sub-contractor a lien, and the words "liable to pay at the time," in the provision thereof, providing that the aggregate amount of liens " must not exceed the amount which the owner would be otherwise liable io pay at the time of the filing of the claim," etc., do not necessarily mean a liability which can then be enforced, but mean liability to pay by virtue of, and ac- cording to the terms of the contract, either pres- ently or m futwo. The clause was intended to limit the owner's liability in the aggregate to the amount which he has contracted to pay, deducting payments made before the filing of the lien. — Ot. of App., June, 1880. Heckmann V. Pinkney, 81 N. Y. 211, 216 ; affirming 8 Daly 466. 2. Repeal. The mechanics' lieu law for the city of New York, of 1863, (Laws of 1863, ch. 500,) was repealed by the law of 1875, (Laws of 1875, ch. 379.) lb. 3. Who may file a lien. The defend- ants leased certain lands and quarries to a cement company for the term of seven years, with privileges of renewal, the company agree- ing to erect certain improvements thereon, which were to become the property of the les- sors upon the termination of the lease. The plaintiff, in pursuance of a contract made with the company, erected the improvements upon the lands, the defendants assisting in locating the same and directing him as to the founda- tions thereof. The cement company having failed, the! plaintiff filed a notice of lien under Laws of 1873, ch. 489. Held, that he thereby acquired a valid lien upon the land as against the defendants, the owners thereof. — Supreme a., (3d Dept,) May, 1881. Otis ». Dodd, 24 Hun 538. 4. Necessity of contract with owner. By a lease from the owners of certain premises in the county of Queens it was agreed in sub- stance that, " as part of the consideration of the letting," the improvements built or to be built upon the premises by the lessee should re- vert to the lessors at the expiration of the term, and that the lessee would leave them upon the premises ; also, that the lessee would insure for half the cost of the build- ings built or to be built upon the prem- ises, and in case of fire would devote the pro- ceeds to the re-erection or restoration of the improvements destroyed; in case of default in any of the covenants, on the part of the lessee, the lessor had the right to re-enter. Plaintiff, under a contract with the lessee, erected a build- ing upon the premises. The lessors lived near the premises, saw the building from time to time while plaintiff was engaged in its erection, and made no objection. In an action to fore- close a mechanics' lien — Held, that the lessee was permitted by the owners to erect the build- ing within the meaning of the mechanics' lieu law for said county (Laws of 1862, ch. 478, 2 1) ; and that the said hen was valid and enforce- able against the land. — Ct. of App., Dee., 1879. Burkitt V. Harper, 79 N. Y. 273. 5. The notice of lien filed did not allege that the owners permitted the lessee to build, but that they permitted the plaintiff to furnish 184 MECHANICS' LIEN, I., II. the work and material ; it specified the amount of the claim, the person against whom it was made, and the name of the owner and the situ- ation of the building, particularly describing the land ; it also stal&l that the work and ma- terial were furnished pursuant to a contract with the lessee. Held, that the notice was suf- ficient ; that it was not necessary to state therein the permission of the owner ; this was simply a fact to be alleged in the complaint. lb. 6. Effect of payments by owner. Under the provisions of the mechanics' lien law of 1862, for Kings and Queens counties, (Laws of 1862, eh. 478, ? 1,) which directs the disallowing as against the lienors of any pay- ment made by the owner " by collusion, for the purpose of avoiding the provisions of this act, or in advance of the terms of any contract," payments made in advance, although without fraud or collusion, cannot be allowed. — Ct. of App., Jan., 1881. Post v. Campbell, 83 IST. Y. 279. 7. The statute, however, was intended to protect the lienor against payments made to the contractor or other persons to the prejudice of the lienor, and where payments in advance were made to him on account of the work or materials for which he claims a lien, he will not be permitted to dispute the right of the owner to have them credited because they were made too soon. lb. 8. Notice of lien. The plaintifi' having furnished materials to one 8., who had con- tracted to erect a building upon land in the city of Bufialo belonging to defendant, filed a notice of lien against the premises under Laws of 1844, ch. 305, 1 1, as amended by Laws of 1871, ch. 872. The notice served by him, as required by § 6 of the act of 1844, in instituting proceedings to foreclose the lien, did not allege that there was anything due, or to become due, to S. on his contract with defendant, or that de- fendant was in any way indebted, or was to be- come indebted, to him thereon. Held, 1. That the notice required by the act took the place of a complaint, and was subject to the rules governing pleadings in other actions. 2. That as it did not show that defendant was or would become indebted to 8. under the con- tract, it did not state facts sutficient to consti- tute a cause of action and should have been dismissed. — Supreme Ct., (iih Depl.,) Jan., 1881. Dart V. Fitch, iZ Hun 361. 9. Filing the notice : place of filing. The mechanics' lien law of 1844, (Laws of 1844, ch. 305,) for cities and certain villages named, was not repealed or aflTected by the act of 1858, (Laws of 1858, ch. 204,) extending to all the counties of the state except New York and Erie, the provisions of the lien law of 1854, (Laws of 1854, ch. 402.)— C«. of App., April, 1880. Whipple v. Christian, 80 N. Y. 523; affirming 15 Hun 321. 10. Where, therefore, a material-man sought to acc|uire a lien in 1866, upon premises in Can- andaigua, one of the villages specified in the act of 1844, but not in a county specified in the act of 1854, by filing his claim in the office of the town clerk of Canandaigua, as required in the act of 1854, instead of in the office of the clerk of the county of Ontario, in which said village is situated, as prescribed by the act of 1844 — Held, that -the notice was ineffectual ; and that plaintifi' acquired no lien. lb. 11. — time of filing. It seems that undw the Kings and Queens county act of 1862, a lienor is only entitled to the value of materials and work performed within three months next preceding the filing of the notice of lien. Post V. Campbell, supra. 12. In an action by a sub-contractor to en- force a lien under said act, plaintifis claimed and were allowed, by the referee, $4350, and in- terest. The referee found that the value of the work performed by plaintiffs within three months preceding the filing of notice was $1077.17. The last installment on plaintiffi' contract was $3350, payable ten days after the completion of the work. Held, that, conceding the lien could be established as to the last in- stallment by filing a notice within three months after the completion of the work, on the ground that it was not earned until such completion, this did not justify the including in the judg- ment work done previous to the three months and not embraced in that installment. lb. 13. Duration and continuance, of the lien. • The notice was filed in the clerk's office on October 25th, 1877. On October 21st, 1878, the report of the referee in favor of the plain- tiffi was filed, and on October 25th judgment in their favor was entered therein. On November 23d an order was made setting aside the judg- ment as prematurely entered, and directing that a judgment be entered nuiw pro tunc as of Octo- ber 26th, 1878. Held, 1. That under Laws of 1871, ch. 872, 3 6, the lien expired, unless judgment was entered within one year from the time of the filing of the notice. 2. That though the court had power to order its judgments to be entered nunc pro tunc, it could not thereby extend the time limited by the statute within which the lien must be prose- cuted to judgment. Dart v. Fitch, supra. 14. Deposit of money to remove lien. The deposit of money with the county clerk to remove a mechanics' lien upon certain lands does not confer an absolute right upon the lienor to receive the money without first estab- lishing his lien. — Supreme Ct., (ls< Dept.,) May, 1881. People, ex rel. Flynn, ». Butler, 61 How. Pr. 274. 15. Where a sub-contractor files a lien, after his contractor has made an assignment for the benefit of creditors, he is entitled, in an action to foreclose the lien, to the money deposited by the assignee to discharge the lien, and is not obliged to share in the fund in the assignee's hands as an ordinary creditor. — Com. Pleat, (Sp. T.,) July, 1880. Murry v. Hutchinson, 8 Abb. N. Gas. 423. II. Pbocebdingis to Foreclose. 16. "When a personal judgment is proper. Where, in a proceeding under the general lien law, (Laws of 1854, ch. 402, as amended by Laws of 1869, ch. 558, and Laws of 1873, ch. 489,) to foreclose an alleged me- chanics' lien, it appears that no lien ever ex- isted, a personal judgment cannot be rendered against the owner of the premises, upon an inde- pendent contract between him and the claimant. —Ct of App., Jan., 1880. Weyer v. Beach, 79 N. Y. 409. 17. The proceeding, being statutory, can only MECHANICS' LIEN, II.— MISTAKE. 185 be resorted to in a case falling within the statute, i. e., where a mechanics' lien exists. The power to render a personal judgment is merely incidental to the main purpose, and where it appears that no lien ever existed, the whole pro- ceeding falls. lb. For decisions relative to the Acquisition and enforcement of liens, generally, see Lien ; and the titles there referred to. MILITIA. As to the exemption of members of the national guard from Taxation, see Taxes, 18, 10. MILLS. 1. Right of mill-o'WTier to restrain diversion of -water. Plaintiflf was the owner of a mill operated by water-power fur- nished by a creek. Defendant, who was a ri- parian owner above, under a claim of right, diverted the waters of the creek, conveying them by pipes to reservoirs whence its locomo- tives were supplied with water. The jury found, on sufficient evidence, that the water so diverted from the creek was suflScient " to perceptibly re- duce the volume of water therein," and to " ma- terially reduce or diminish the grinding power of plaintiff's mill," and that in consequence he had sustained damage to a substantial amount. Held, that plaintiff was entitled to maintain an action to recover the damages sustained, and re- strain such diversion. — Ct. of App., Jan., 1881. Garwood v. New York Central, &c., E. E. C!o., 83 N. Y. 400 ; affirming 17 Hun 356. 2. Sales and conveyances of mill property. H. being the owner of premises upon which was a mill known as "The Old Mill," and a dam and reservoir, the water from which was conducted to the mill by a flume, conveyed "The Old Mill" to B., the deed granting the right to use the water of the reser- voir for the bqjefit of the mill ; with the condi- tion, however, that in case the mill should not be kept in use the water-privileges and right of flowage should cease and revert to H. H. subsequently contracted to sell and convey to B. a portion of the lands lying between " The Old Mill " and the reservoir, upon which B. erected a new mill, taking the water from the reservoir for its use. B. subsequently assigned his con- tract back to H., and released the title ac- quired under it. H. thereupon, without refer- ence to the contract, conveyed to S. the premises embraced therein, with appurtenances as to which nothing was said in the contract. The Old Mill was afterward destroyed by tire, and was not rebuilt. H. conveyed the lands upon which was the reservoir to defendant, C, who proceeded to fill up the reservoir and remove the flume. In an action to restrain the doing of this — Held, that as by the assignment of the contract to H. he became le-in vested with the entire title, freed from the equities of the con- tract, the date of the deed to S. became the date of the sale, and the water-power then in use for the mill, and visibly incident and appurtenants thereto, passed by the deed ; and that therefore the action was maintainable. — Gt. of App., Sept., 1880. Simmons v. Cloonan, 81 N. Y. 557. 3. The assignment from B. to H. in terms authorized the latter to convey to S., and the conveyance was in pursuance of an arrange- ment between B. and S. ; the consideration of the deed was about the contract price, with in- terest, unaflected by the improvements put on the land by B. Held, that all the facts justified a finding that the intent of the parties was, not simply to carry out the old contract, but that the sale should bear the date of the deed, and that the water-power should pass as appurtenant. lb. 4. B. fitted the mill so erected by him with steam-power, to be used when the water supply was insufficient. Held, that this did not pre- vent the passing, under the deed to 8., as ap- purtenant, of the right to use the water, as the water-power was necessary to the full enjoyment of the property. lb. For decisions on the law of Biyomm rights and Water-courses, disconnected with the nse of the water for mill purposes, see Eipabian Eights; Watbr-coubses. MINORS. Infants. MISCARRIAGE. As to the carrier's liability for Miscarriage of goods, see Carriers ; Eailroad Companies, IV. As to the offence of Producing an abortion, see Cbiminai. Law, 4. MISJOINDER. Action, 5, 6 ; Pleading, I., II. MISREPRESENTATIONS. Fraud, 2-6; Sales, III., IV.; Vendor AND Purchaser, 9-11. MISTAKE. The right to relief. To entitle a party to relief, on the ground of mistake, it must be a mistake as to some existing fact, not as to something to occur in the future; and it must be a mistake as to some fact bearing directly, not remotely, upon the act against which relief is sought.— a. of App., March, 1881. Southwick V. First Nat. Bank ot Memphis, 84 N. Y. 420 ; '_j:eii£rsing 20 Hun 349. 186 MISTAKE— MONEY RECEIVED As to Befomuititm of contracts, and relief for mistake, in equity, generally, see EquitT, II. As to recovery back of Money paid by mistake, see Monet Keceited, 5-7. MONEY RECEIVED, (Action for.) 1. "When the action lies, generally. An action for moneys had and received is main- tainable against a town to recover moneys of another wrongfully taken by it and applied to its own use.— Ci!. of App., Dec, 1880. Horn v. Town of New Lots, 83 N. Y. 100. 2. Money received in good faith and in the course of business. One G., who was a member of the board of education, de- fendant herein, as attorney for it, received $3600.84 of its money, which he wrongfully ap-^ propriated to his own use ; he subsequently pro- cured from plaintiff, on a forged mortgage, $4129.34, which he deposited in a bank to his credit, and on the same day drew his check on said bank to defendant's order for the amount so appropriated, and delivered the same to de- fendant, who received it, without notice or knowledge of the fraud perpetrated upon plain- tiff, and gave G. credit therefor ; the check was paid and the money received thereon used by defendant. In an action to recover the amount so received by defendant from G. — Held; that defendant having received the money in good faith, and in the ordinary course of business, for a valuable consideration, was not liable. — Ct. of App., Dec., 1879. Stephens v. Board of Edu- cation of Brooklyn, 79 N. Y. 183. 3. The possession of money vests the title in the holder, as to third persons dealing with him and receiving it in due course of business and in good faith, upon a consideration good as be- tween the parties. lb. 4. The doctrine that an antecedent debt is not such a consideration as will cut off the equities of third parties, in respect to negotiable securities obtained by fraud, has no application to money so obtained. lb. 5. Payments made under mistake. The obligation of a party to refund money, vol- untarily paid to him by mistake, can arise only after notification of the mistake, and demand of payment. — Ol. of App., March, 1881. South- wick V. First Nat. Bank of Memphis, 84 N. Y. 420 ; revering 20 Hun 349. 6. Where a demand is necessary it is not excused by showing that defendant would not probably have complied if one had been made ; and it matters not that defendant, on the trial, contests plaintiff's right to recover. I b. 7. Where a bill of exchange is paid to one who holds it in good faith and for value, he cannot be called upon to account for the money paid, upon proof that in transactions between the drawer and drawee, of which he had no knowledge or means of knowledge, there has been some fraud or mistake to the injury of the drawee; and this, although the holder, not having parted with value at the time when he took the draft, could not have enforced it against the drawee, even after acceptance. This rule is based upon principles of public policy. lb. 8. Payments induced by fraud. Plaintiff's complaint alleged in substance that defendant, at the request of S. , loaded a vessel with petroleum, and by representations that it had put on board one hundred and ten barrels more than it had in fact, induced the master of the^ vessel to give to S. a bill of lading for that amount in excess of the actual amount loaded, and S. paid defendant therefor ; that S. assigned the bill of lading, and the assignees on arrival compelled the master to pay for the deficiency. Plaintiff claimed as assignee of the master to- recover the amount so paid. Held, that a de- murrer to the complaint was properly over- ruled; that as the payment was compulsory, caused by the act of defendant, the law implied a promise on his part to repay it. — Ct. of App., June, 1880. Van Santen v. Standard Oil Co., 81 N. Y. 171. 9. As to whether, by the application of equitable' principles, the master could be con- sidered as having by his payment acquired the right to be subrogated in the place of S., and so entitled to enforce the cause of action which the latter had, qucei-e. lb. 10. Payments made to compound a crime. The law will not aid a party to recover back money paid for compounding a crime. — Ol. of App., Feb., 1880. Collins ii. Lane, 80 N. Y. 627. 11. Where a person has voluntarily, i. e., without the coercion of force or threats, given his promissory note to conjpound a crime, and has been compelled to pay the same, it having been transferred to a bona fide holder for value before maturity, he cannot maintain an action against the one to whom the note was so given to recover back the moneys paid. As to whether one who aids in doing a criminal act can, under any circumstances, have an action to recover anything paid by him in furtherance thereof, guuere. — Gl. of App., Dec., 1880. Haynes v. Kudd, 83 N. Y. 251. 12. Payments of municipal assess- ments. An action is not maintainable to re- cover back an assessment voluntarily paid, which was irregular but has not been vacated, although an assessment on other lots in the same proceeding has been vacated. — Ct. of A\ Dec, 1879. Wilkt York, 79 N. Y. 621 Dec, 1879. Wilkes v. Mayor, &c. It.ofApp., , of New 13. Where an assessment is lyt only uncon- stitutional and void, but has been so judicially declared and the invalidity is such that it must appear upon the proof necessary to be made to sustain proceedings under it, it is not essential to the maintenance of an action to recover back moneys collected under the assessment that it should first be judicially vacated. — Ct. of . ' Dec, 1880. Horn v. Town of New Lots, 83" Y. 100. 14. Payments of taxes— voluntary payments. The plaintiff having refused to pay a tax levied upon the amount of personal property for which he was assessed, on the ground that he did not reside in the town in which the assessment was made, proceedings were instituted before the county judge, in pur- suance of ch. 361 of 1867, in which the judge made the usual order of reference in supple- mentary proceedings, and enjoined the plaintiff "from selling, assigning, incumbering, or in any manner interfering with his property until the further order of the court." Upon the coming in of the report an order was made di- recting the plaintiff to pay to the supervisor, MONEY r!eCEIVED— MOETGAGES, I., II. 187 who had instituted the 'proceedings, the amount of the tax, with the costs of the proceedings. The plaintiff, having paid the amount as di- rected by the order, brought this actjon to re- cover the same from the assessoiB, on the ground that they had acted without jurisdiction in making the assessment. Sdd, that the pay- ment was a voluntary one, and that the action could not be maintained. — Supreme Ol., {iih Bt^t.,) April, 1881. Drake v. Shurtliff, 24 Hun 422. MORTGAGES. I. What Constitutes a Mortgage. II. Validity, Intebpretation and Ef- fect. in. Eights and Liabilities of the Parties. 1. As between themselves. 2. As towards grantee of mortgagor, who assumes the mortgage. IV. Decisions Under the Recording AciTs. Priority. V. Assignments. VI. Foreclosure. 1. By advertisement ; strict foreclosure, &e. ^ 2. Sy suit. VII. Redemption. Vin. Discharge of the Lien by Payment. I. What Constitutes a Mortgage. 1. Absolute deed, -when a mort- gage. The fact that the deed vests the legal title to the land in the grantee is not decisive on the question as to whether the conveyance is an equitable mortgage. In equity it may be a mortgage, althou^ the defeasance be to some other than the grantor. — Ct. of App,, _ . ~" N. Y. reversing 18 Hun 298. Nov., 1880. Pardee v. Treat, 82 885; I 2. Where, therefore, a deed, absolute on its face, was executed by one G. to defendants, containing a covenant upon the part of the latter to pay certain liens, but which deed was intended simply as security for a debt of G. to defendants, and where, in accordance with the agreement of the parties, and as part of the Same transaction, defendants executed a con- tract agreeing to, convey to Mrs. G., on the pay- ment by her of the amount of the liens and defendants' debt, which amount she agreed^ to lay at a time specified — Sdd, that an action ly a lienor to recover of defendants the amount of his lien was not maintainable. lb. 3. As to when a deed will be treated as a mortgage, and the right of action to have it so declared, see Bennett v. Austin, 81 N. Y. 308 ; Brumfield v. Boutall, 24 Hun 451. n. Validity, Interpretation and Effect. 4. luterpretation, generally. A mort- gage was executed to M. and S., who were co- partners, (loing business under the firm name of M. & Co. It was expressed in the condition of the mortgage that it was intended among other things, ''as a continuing security and in- demnity" to the mortgagees "for and against all liabilities they then had incurred or might thereafter incur as indorsers, acceptors or sure- ties in any form," for J. B., one of the mort- gagers, or the firm of J. B. & Co. Held, that the mortgage included not merely such liabili- ties as were incurred by the mortgagees jointly as copartners, but such as were incurred by- either of them, separately and individually. — a. of App., Nov., 1880. Nat. Bank of New- burgh V. Bigler, 83 N. Y. 51. 5. OouBideration. In 1869, the plaintiff having caused the necessary papers to be pre- pared to commence an action to foreclose a mortgage given to it by the defendant S., the- latter proposed, if the plaintiff would allow the- loan to stand, to give a new mortgage to secure- the payment of the sum secured to be paid by the first, together with a bond to be executed by additional parties. The plaintiff accepted this* offer and the new bond and mortgage; discon- tinued the proceedings instituted for the fore- closure of the first mortgage, and took no fur- ther steps to collect it down to 1874, when this action was commenced to foreclose both mort- gages, and to recover a judgment for any defi- ciency against the parties liable upon the bonds as collateral to which they were given. When the second bond and mortgage were given, no particular period of time was mentioned or agreed upon, for which the loan secured by the first mortgage was to be allowed to remain un- collected. Held, that the general agreement to- allow the loan to remain for the time uncol- lected, followed by an actual forbearance of several years, furnished a sufficient considera- tion to support the second bond and mortgage as between the parties thereto, although no- particular period for the forbearance was agreed upon. — Supreme Ct., {1st Depl.,) Jan., 1881. Mut. Life Ins. Co. v. Smith, 28 Hun 535. 6. Validity of mortgage to Becur& future advances. Defendant E. executed his bond and mortgage to secure the People's- Safe Deposit and Savings Institution, for any indebtedness it had against the mortgagor,. " upon or by reason of any promissory note, bill of exchange, overdraft, or otherwise." Subsequently said corporation loaned to the mortgagor various sums of money upon the discount of his notes, which expressed that th& maker had deposited the bond and mortgage as- collateral. In an action to foreclose the mort- gage — Held, that the notes were void, as the corporation had no power, under its charter, ta loan money on personal security (Laws of 1868, ch. 816,) and was prohibited by statute from discounting commercial paper (1 Hev. Stat. 712, a 3, 6) ; but that the corporation was author- ized by its charter (§ 11) to invest in bonds and mortgages ; that the fact that the loan was mad& by way of discount, and upon the security of the notes, as well as of the mortgage, did not vitiate the latter ; and that it was a valid se- curity for the loan and enforceable as such. — a. of App., Jm., 1880. Pratt -u. Eaton, 79 N. Y. 449. Ill, Eights and Liabilities of the Par- .■ ties, 1. As between themselves. 7. Mortgagee's right to proceeds 188 MORTGAGES, II., III. •of insurance. December 1st, 1870, one A. •executed to plaintiff a bond and mortgage for $2000, and covenanted thereby to keep the buildings insured for that sum and the policy assigned to plaintiff. A policy for that amount was procured, assigned to plaintiff and kept in force until November, 1874, when it was allowed to expire and a new policy for 13000 was pro- cured by A., which was not assigned to plaintiff. March 6th, 1875, A. executed another bond and a. mortgage covering the same premises for $1400 to his brother, the defendant E. Avery, and thereby covenanted to keep the premises in- sured for $3000, and the policy assigned to de- fendant, and the $3000 policy was made paya- tle to him. The $3000 policy expired and a. $2000 one issued in renewal thereof was there- after made payable in case of loss to E. Avery, and was held by him at the time of the des- truction of the premises by fire in October, 1877. Sdd, 1. That by virtue of the covenant con- tained in his mortgage the plaintiff acquired .an equitable lien upon the money due upon the policy, to the extent of his interest in the property; and that this was so although the policy had not been issued or made payable to him, but had been taken out by the mortgagor in his own name and contained no reference to the mortgagee. 2. That the record of the mortgage to the plaintiff was notice to the defendant of the •covenant of the mortgagor to keep the premises insured for the plaintiff's benefit. 3. That the plaintiff was entitled, to receive «o much of the insurance money as might be necessary to satisfy any deficiency that might arise upon the sale of the premises under a de- cree of foreclosure. — Supreme Ct., {4th Dept.,) Jan., 1880. Dunlop v. Avery, 23 Hun 509. 8. Mortgagee's right to rents and profits. The right of a mortgagee to the rents ■of land, without the interposition of the equity power of the court, before he has foreclosed the mortgage, depends upon the fact whether the possession is a lawful one, either by consent of the pi-oper party, or by means of legal proceed- ings. — Ct. of App., June, 1880. Bennett v. Austin, 81 N. Y. 308, 317. 9. Relative rights of mortgagee and purchaser from mortgagor. As to the mghts of one taking a mortgage (given to secure a,n existing indebtedness) from one who has theretofore contracted to sell the land ; how far the vendee will be protected in payments made to his vendor without notice of the mortgage ; ■and as to payments, after notice of the prior •mortgage, to an assignee of a mortgage given by the vendee, see Young v. Guy, 23 Hun 1. 2. As towards grantee of mortgagor, ihho assumes themortgage. 10. What amounts to a covenant to pay the mortgage. An agreement by the ^antee to pay the interest on the mortgage will not require him to accept a deed containing a •clause assuming the payment of the mortgage. — Supreme Q., {1st Depl.,) Jan., 1879. Manhattan Life Ins. Ck). v. Crawford 9 Abb. N. Cas. 365. 11. The mortgagor of certain premises con- veyed the same by a deed containing the follow- ing clause: "Which said mortgage the party hereto of the first part hereby assume and agree to pay as part of the consideration hereinbefore expressed." Held, that this was the covenant of the party of the second part. — Superior Ct., Jaw., 1880. Fairchild v. Lynch, 46 Superior 1. 12. Effect of the covenant, generally. It seems that the mere fact that the purchaser of lands took subject to a mortgage does ndl render him liable, either legally or equitably, to indemnify his grantor against the mortgage. — Ct. of App., March, 1881. Smith v. Truslow, 84 N. Y. 660. 13. It seems, however, the rule would be other- wise if the mortgage debt formed part of the consideration of the purchase and was to be paid by the purchaser, if he retained its amount. lb. 14. The nature of covenants to pay mort- gages, and what is sufficient to satisfy such cove- nants, considered. Fairchild v. Lynch, 46 Supe- rior 1. 15. Wlien the covenant is not bind- ing. When, on the assumption of a mortgage by a grantee of land, the grantee receives the title only to transfer it to another, he is not liable under the clause in the deed assuming the mortgage. — Supreme Ct., (2d Dept.,) Sept., 1880. Deyerman v. Chamberlin, 22 Hun 1 10. 16. Where the grantee covenants to pay a certain mortgage, as part of the consideration of the deed, &c., and his grantor, who is also the mortgagor and obligor, thereafter purchases the said bond and mortgage, the grantee is not liable on his said covenant ; this, though the bond and mortgage be subsequently transferred to third parties, and foreclosure proceedings instituted, in which the mortgagor is charged with and pays a deficiency. In such a case the mortgagor voluntarily extinguishes the personal liability on said mortgage before there is any breach of the covenant, there being no equitable reason why it should be kept alive. — Superior Gl., Jan., 1880. Fairchild v. Lynch, 46 Superior 1. 17. "WTio may enforce the covenant. A clause in a deed by which the grantee as- sumes and agrees to pay liens upon the premises can only b^ enforced by a lienor, when in equity the debt of the grantor secured by the lien be- comes, by the agreement between them, the debt of the grantee. If in equity as well as law the grantor remains the principal debtor, the assumption clause is a contract between the parr ties to the deed alone, and the liability of the grantee for a breach of his obligation is to the grantor alone. — Gt. of App., Nov., 1880. Par- dee V. Treat, 82 N. Y. 386 : reversing 18 Hun 298. 18. A covenant in a deed, absolute on its face but intended simply as a mortgage, by which the grantee assumes and agrees to pay a prior mortgage, is in effect simply an agreement be- tween the parties that the grantee will advance the amount of the prior lien upon security of the land, and gives no right of action against the grantee to the holder of the mortgage, as he is neither a party to the contract nor the one for whose benefit it was made. — Ct. of App., Feb., 1881. Boot V. Wright, 84 N. Y. 72. 10. Liability of grantee for defi- ciency. Plaintiff sold to defendant W. cer- tain premises, taking a mortgage thereon to secure a portion of the purchase money ; subse- quently, W. conveyed to defendants K. and H., MORTGAGES, III., IV. 189' undivided interests in said premises, the deed reciting that the parties thereto were Jointly in- terested in the purchase from plaintiff, the title having, for convenience, been taken in the name of W. for the use and benefit of all in certain specified proportions, and that the grantees had assumed and agreed to pay their proportions of said mortgage. The conveyance was made sub- ject to the mortgage, and the proportions thereof specified the grantees assumed and agreed to pay as part of the consideration. In an action to recover a deficiency aiising on fore- closure of *he mortgage — ifeW,"that there was a sufficient consideration to sustain the covenant of the grantees ; and that plaintiff, as mort- gagee, could enforce the same. — Ct. of App., Dec., 1880. Hand v. Kennedy. 83 N. Y. 149 ; affirming 45 Superior 385. 20. Mortgagor's po-wer to release grantee. One who purchases a part of mort- gaged lands, and agrees with his grantor to as- sume and pay the whole mortgage, may dis- charge his land from the consequences of that assumption, by agreement made with his grantor while the latter is still the owner of the residue, and a grantee of the residue, after such dis- charge, cannot claim the benefit of the assump- tion. The grantee succeeds only to the equities of his grantor, existing at the time of the con- veyance, and that without regard to any ques- tion of notice. — Ct. of App., Jan., 1880. Judson V. Dada, 79 N. Y. 373. 21. Defendant A. being the owner of certain premises, subject to a mortgage then on record, sold and conveyed a portion thereof to D. and M., which, as stated in the deed, was " supposed to be eighty acres," the grantor covenanting that in case of a deficiency she would pay therefor at the rate of $30 per acre; the grantees, as the consideration for the conveyance, assumed and agreed to pay the whole mortgage ; subse- quently, it having been ascertained that there was a deficit in quantity of the land conveyed, A. executed to her said grantees a writing agreeing that she would save them harmless, to the amount of (273.32, the sum agreed to be paid for such deficit, from any claim under the mortgage. A. subsequently conveyed the resi- due of the premises to other parties, covenant- ing that the same was iree and clear of all en- cumbrances. In an action to foreclose the mortgage — Hdd, that the grantees of such resi- due were entitled to no other or greater equities than those which A. had at the time she conveyed ; that the residue was presumably chargeable in equity with the payment of $273.32 of the mortgage, and the portion so conveyed to D. and M. was chargeable with the balance; that the fact that the covenant of D. and M. to pay the mortgage was contained in a deed on record was immaterial ; as were also the facts that the agreement of A. to re-assume the amount of the rebate for the deficiency, was not on record, and that the grantees of the residue had no notice thereof. lb. rv. Decisions uitdee the Beoobding Acts. Pbiomty. 22. Protection accorded to purolias- ers in good faith. To enable a subse- quent purchaser to assail a prior unrecorded mortgage, under the recording act (1 Eev. Stat. 756, 1 1,) it is incumbent upon him to show not only that he was a bona fide purchaser for value without notice, but that his conveyance was- first recorded.— Ci!. of App., Nov., 1879. West> brook V. Gleason, 79 N. Y. 23. 23. Where a junior mortgagee, with notice of a prior unrecorded mortgage, assigns his- mortgage to a bona fide purchaser for value, wh» has no notice, the assignment is the "convey- ance," within the meaning of said act (1 Kev. Stat. 762, §§ 37, 38,) and such assignee is enti- tled to preference, only in case he records his- assignment before the first mortgage is recorded. lb. 24. It seems that where, at the time of the- execution of a mortgage. A., a third party, is- in possession of the mortgaged premises^ under an executory contract for the purchase thereof, and has made improvements thereon, and subsequently, and before the mortgage is- recorded, A. takes a conveyance, in good fiiith,. without knowledge of the mortgage, giving his bond and mortgage for the whole of the pur- chase price, and the deed and subsequent mort- gage are recorded before the prior mortgage,, the title of A. is superior to the prior mort- gage ; and a purchaser upon foreclosure of the mortgage so given by A. takes all his title, and so takes the premises freed from the lien of the prior mortgage, fb. 25. In such case, for the purpose of deter- mining the question of the lien of the prior mortgage, the legal title of A. will be consid- ered as relating back to his equitable title, and is thus freed from the lien ; but if by accepting a deed A. loses his equitable rights as vendee in possession under his contract, then he is pro- tected by the recording act, as by parting with such right he becomes a purchaser for value,, and is entitled on that ground to priority, al- though he paid no portion of the purchase- money, lb. 26. Effect of recording as notice. That the recording of a mortgage is notice only to the extent of the amount then advanced, or agreed to be advanced, upon it ; and when a second mortgage is entitled to priority over ad- vances made upon a prior one after the record- ing of the second, see Ketcham u. Wood, 22: Hun 64. 27. Priority between mortgages. In an action to foreclose two mortgages, it ap- peared that there was a prior mortgage upon the premises, the beneficiary owner whereof, in pursuance of an agreement under which a fourth mortgage was executed and accepted, covenanted that said mortgage should have priority of lien over his mortgage, as if it had been previously executed and recorded. The lien of the first mortgage was subsequently dis- charged. Held, that the covenant did not give the fourth mortgage a priority of lien over plaintiff's mortgages; that the intent of the parties to the agreement under which the fourth mortgage was taken was, not to place that mort- gage ahead of plaintiff's mortgages, or to give its owner an interest in the first mortgage, but simply that the liens prior to the fourth mort- gage should only be the amount of plaintiff's mortgages; and that the agreement was fully satisfied by a discharge of the first mortgage. — Ot. of App., March, 1881. Taylor v. Wing, 84 N. Y. 471 ; reversing 23 Hun 233. 28. In an action for partition, plaintiff claimed title under a sale on foreclosure of two- 190 MOETGAGES, lY., V., YI. mortgages, both executed April 1st, 1872. Two other mortgages were executed at the same time, all the mortgagees mutually agreeing that neither mortgage should have priority over •either of the others, but that all should be equal liens. The mortgages under which plaintiff claimed were recorded in December, 1872 ; they were both assigned, the assignees tak- ing for a valuable consideration and in good faith, and the assignments were recorded, one in Jan- uai7, 1874, the other in June, 1876. The other two mortgages were recorded, one in July, the other in August, 1877. Hdd, that the assignees of plaintiff's mortgages were sub- sequent purchasers, under the recording act, and upon recording their assignments acquired a preference over the other mortgages, and that, therefore, plaintiffs acquired a valid title under the foreclosure sale. — Ot. of App., Dec., 1880. Decker v. Boice, 83 N. Y. 215. ' V. Assignments. 29. The assig'nee's title, and ho'w far subject to equities. An assignee in good faith and for a valuable consideration, of a recorded mortgage, gets no preference over a prior unrecorded deed or mortgage by reason of such record, when his assignor could not claim it by reason of notice or any other equity. —Ct. of App., Dec., 1880. Decker v. Boice, 83 N. Y. 215. 30. Such assignee is, however, a purchaser, and his assignment is a conveyance under the recording act. (1 Eev. Stat. 756, U 37, 38.) If, therefore, the assignment is recorded before the recording of such prior deed or mortgage, he thereby obtains a preference ; and an unre- corded conveyance is as to him void under said act. lb. 31. Recording, and its effect. The record of an assignment of a mortgage is con- structive notice to all persons of the rights of the assignee, as against any subsequent acts of the mortgagee affecting the mortgage ; it pro- tects as well against an unauthorized discharge as against a subsequent assignment by the mort- gagee. — Ol. of App., Sept., 1880. Viele v. Jud- Bon, 82 N. Y. 32 ; reversing 15 Hun 328. 32. It is not re(}uired, in order to make it the duty of a county clerk to record an assign- ment of ai mortgage, that it should contain a statement of the place of record of the mort- gage, or a description of the lands mortgaged ; it is sufficient if it so identifies the mortgage that by examining the records the one referred >to can be ascertained, lb. 33. Noting assignment on record of the mortgage. It is not imposed by statute as a duty upon the county clerk to note an as- signment upon the margin of the record of a mortgage, and his omission so to do does not affect the rights of the assignee, lb. 34. Defendant D. executed to V. a mortgage for $1200, which the latter assigned to plaintiff; ■the assignment gave the date of the mortgage, the name of the mortgagor and mortgagee, and covenanted that there was due thereon $1200; the assignment was recorded, but the clerk did not minute on the margin of the record of the mortgage the fact of the assignment ; there was no other mortgage of D. bearing the same date. V. thereafter, without authority, exe- cuted a discharge of the mortgage, which -was recorded. L., a subsequent grantee of the premises, executed a mortgage thereon to H., both having actual knowledge at the time that such discharge, was fraudulent; H. assigned said mortgage to defendant J., who, in an action to foreclose plaintiff's mortgage, claimed his to be the prior lien. Held, untenable; that the assignment to plaintiff was sufficient to identify the mortgage, and his rights under it were not affected by the fraudulent discharge, as against any one claiming a right under it; that J., by his assignment, gained no other or greater right than his assignor had at the date of the assignment, as against plaintiff's mort- gage ; and as H. had knowledge of plaintiff's rights, he took ■ his mortgage subject thereto, and so transferred it. IK 35. The mortgage from L. to H. was made without consideration, for the accommodation of the former, and it had no inception until purchased by J. Held, that this did not change the position of J. or transform the character of his holding from that of assignee to that of mortgagee ; also that plaintiff was not estopped from enforcing his mortgage, as against J, by the fact that after he had knowledge of the fraudulent discharge he took 'no steps within a reasonable time to correct the record. lb. VI. FOEECliOSXJEB. 1. By advertisement; strict foredoswe, &c. 36. Foreclosure by advertisement. In an action brought in the Supreme Court to restrain the foreclosure by advertisement of a mortgage, a county judge may grant an order requiring the defendant to show cause before him why a temporary injanction should not be granted, and restrain him in the meantime from selling the premises at the time specified in the advertisement. — Sv/preme Ot., {iih Dtpt.,) Jan., 1881. Babcock v. Ulark, 23 Hun 391. 37. As to who is "a subsequent grantee" upon whom notice must be served, in foreclos- ure by advertisement (Laws of 1844, ch. 346,) see Raynor v. Baynor, 21 Hun 36. 38. Foreclosure of mortgages to loan commissioners. A sale under a mort- gage, given pursuant to the act " authorizing a loan of certain moneys belonging to the United States," (Laws of 1837, ch. 150,) being a statu- tory proceeding, a failure to comply with the provisions of the statute renders the sale void. — Ct. of App., Nov., 1879. Thompson v. Com- missioners for Loaning, &c., 79 N. Y. 54. 39. The advertisement of sale must indicate who executed the mortgage, and to whom it was given. lb. 40. Commissioners appointed under said act, in case of default in payment as specified there- in, become seized as trustees only, subject to the possession and the right of the mortgagor to redeem, until a sale is made in conformity with the statute. lb. 41. Where a published notice of sale under such a mortgage omitted the name of one of the mortgagors, and stated that the mortgage was given to the commissioners of the United States deposit fund," instead of "the commis- sioners for loaning certain moneys of the United States," as stated in the mortgage, and as desig- nated by the statute — Hdd, that the notice was defective and the sale illegal; and that the M0ETGAGE8, VI. 191 morlgagors were thereafter entitled to redeem. lb. . 42. After such an illegal sale, a mortgagor served upon the commissioners a notice in writ- ing, Differing to pay the amount of the mortgage, principal and interest, and to redeem the prem- ises ; also stating therein that she desired an ac- counting of the rents and promts, possession having been taken by the purchaser. The com- missioners made no answer. In an action to aredeem — Hdd, 1. That the omission to make tender was not fatal to the action, but that in any event it only affected the question of costs ; that the plaintiff in such an action occupied the same .position as any other mortgagor seeking to re- deem ; also, that plaintiff was entitled to an ac- counting from the purchaser, and his successors in interest and possession, for the rents and profits. 2. That such an action, with all the parties trought in, was the proper remedy in such case. lb. 43. Plaintiff, at the time of the execution of the mortgage, was the owner in fee of one-third of the premises ; she subsequently received a -deed from her husband of the other two-thirds. Seld, that defendants were not in a position to raise the question as to plaintiff's rights as .grantee of her husband. lb. •44. Strict foreclosure. In what cases an action for a strict foreclosure may be main- tained, and when an accounting of the rents and profits received by the mortgagee should be or- dered, see Boss v. Boardman, 22 Hun 527. 2. By suit. 45. Jurisdiction. Where, by mistake, the land intended to be covered by a mortgage is therein so vaguely and uncertainly described as •to render it impossible to identify and locate it, an action to reform the mortgage by correcting the error in the description of the land, and to foreclose the mortgage as so reformed, can be brought in the Supreme Court, but cannot be hrought in a County Court, the latter court not having jurisdiction of an action to reform a .mortgage. — Svipreme Ct., (3d Dept.,) May, 1881. Avery v. Willis, 24 Hun 548. 46. The right of action. A., who pur- chased at a foreclosure sale, afterwards executed a mortgage upon the property so purchased, which mortgage was subsequently assigned to B. It being then first learned that at the time of the foreclosure C. had a junior mortgage on the premises, and that through mistake he had jiot been made a party to the action, A. took an assignment of the foreclosed bond and mortgage, and joined with B. in an action for a second foreclosure of the mortgage, 0. being made de- fendant. Held, upon demurrer by 0., that such (Second foreclosure could be maintained, and C.'s mortgage be shut Off from being a first lien, the mortgage lien anterior to C.'s not being thereby increased. — Supreme Ct., {1st Dept. /Sp. 2*.,) March, 1881. Franklyn v. Hayward, 61 How. I'r. 43. 4*7. Parties. The mortgagor died seized •of the mortgaged premises, and left by will a legacy to his daughter, C, not making it a charge upon the land. He left sufficient personal prop- erty to pay the lega'cies, and bequeathed the ■"remainder," including the real estate, to his sons. Held, 1. That C. had no interest in the mortgaged premises, and was therefore not a necessary party to an action to foreclose the mortgage. 2. That the fact that the executors had wasted the personal property, and neglected to pay the legacy, could not charge the real estate with such payment.— iSttpr-eme Ol., {Sp. T.,) Oct., 1880. Hebron Soc. v. Schoen, 60 How. Pr. 185. 48. Process, and ho-w served. As to the effect of failure to state the name of the wife of a defendant in the summons, see Weil o. Martin, 24 Hun 645. 49. Where an order to serve the summons by publication is obtained, leave to serve it per- sonally, without the state, need not be given. lb. 50. The complaint. When an amended complaint need not be served on parties appear- ing but in default, see lb. 51. Defence of payment. Where, in an action to foreclose a mortgage, which by its terms was given to secure the payment of moneys as specified in the condition of a bond, the defence of payment is interposed, the non- production of the bond by the plaintiff is evi- dence of the discharge of the mortgage debt ; and if unexplained is conclusive against plain- tiff's right to recover. — Ct. of App., Nov., 1880. Bergen v. Urbahn, 83 N. Y. 49. 52. Usury as a defence. In an action to foreclose a mortgage for $2500, the defence was usury. The court found that the mortgage and accompanying bond were executed to one H., not as a security, but only for the purpose of being sold to plaintiff at a discount ; that they were so sold and were usurious. Defend- ants' evidence was to the effect that P., the mort- gagor, before the execution of the bond and mortgage, applied to plaintiff for a loan of $2500, that plaintiff directed him to go and make a mortgage to somebody else, that he could buy it of them, and would loan the money. No terms of loan were stated, and no property specified to be mortgaged. H. held judgments against P. to the amount of about $900. The bond and mortgage were executed to secure this indebtedness. H. also advanced thereon $320, and it was understood that the balance realized on the sale of the securities after paying the judgments and the money ad- vanced was to be paid to P. They were offered to other parties before plaintiff purchased, and were sold to him at a discount. Held, that the evidence did not sustain the finding ; that the defence of usury was not made out, but only, as to part of the sum secured, a failure or want of consideration ; that the bond and mortgage were valid securities in the hands of H. for the amount of his judgments and the sum advanced by him, and to that extent, at least, plainti£^ standing in the place of H., could enforce them. —Ct. of App., Dec., 1879. Sickles v. Flana- gan, 79N. Y. 224. 53. G., being indebted to S. upon notes past due, amounting to $172.45, which were in the hands of K., an attorney, for collection, it was agreed that S. should loan to the former $1500. Nothing was said as to the rate of interest. Gr. was to pay the attorney's fees. The parties thereafter met at the office of B., and without any words or parley a bond and mortgage were executed and delivered by G. to S., as security for the loan. A statement showing the amount due on the notes, a receipted bill of E., as attor- 192 MORTGAGES, VI. ney, made out to G-., and a check for the balance of the $1500, after deducting these two items, were handed to Gr. ; one item of E.'s bill was, " commission for obtaining loan, $150." There was no foundation for this charge, and it was in- tended for the benefit of S., and was never, in fact, paid to B., but retained by S. Gr. ques- tioned the correctness of this charge. S. replied it was cheap enough and he could do no better. In an action to foreclose the mortgage — Held, that these facts did not sustain the defence of usury, as there was no agreement or intent on the part of G. to pay usury ; that under the agreement for the loan, S. was entitled simply to lawful interest. G. was under no obligation to allow any of the loan to be retained to pay the $150, but was entitled to recover that amount. — Ct. of App., June, 1880. Guggenheimer v. Geiszler, 81 H. Y. 293. 54. It seems that G-. might claim that the recovery should include only the amount actually received by him, and the attorney's fees allowed by him, deducting the item of $150. lb. 55. Receiver of rents and profits. By the appointment of a receiver in a fore- closure suit, the plaintiff obtains an equitable lien only upon the unpaid rents ; until such appointment, the owner of the equity of redemp- tion has a right to receive the rents and cannot be compelled to account for them. — Ct. of App., March, 1881. Eider v. Bagley, 84 N. Y. 461. 56. It seems that, assuming the court has power, in a foreclosure suit, to compel the owner of the equity of redemption to pay the rents to the receiver after his appointment, the exercise of the power is in the discretion of the court, and so not reviewable here. lb. 57. So, also, where fraud or contempt upon the Supreme Court is charged upon the owner, in receiving rents with knowledge of the pen- dency of an application for a receiver, it is for that court to deal with it, and its action in that respect is not subject to review by this court. lb. 58. In an action to foreclose a mortgage upon a leasehold interest, plaintiff was, upon ms own motion and by consent, appointed receiver of the rents and profits of the mortgaged premises, with power to keep the buildings in- sured and in repair, and " to pay the ground- rent and taxes." Subsequently M., the holder of prior mortgages, foreclosed, and upon sale the premises were bought in by M. for a sum less than his mortgages. Plaintiff, out of the rents collected by him as receiver, paid the ground-rent from the time of his appointment to the time of sale ; also for some .repairs, and to M. a sum for interest on his mortgages. Upon settlement of his accounts as receiver plaintiff was required to pay over the balance in his hands in payment of taxes. Held, error ; that the appointment of plaintiff as receiver was for his benefit, not for the benefit of M., who might have applied for a receivership in his own suit, which would have superseded the rights of the plaintiff; that the terms of the order appointing plaintiff, as to the rents and taxes, were permis- sive, not mandatory ; and plaintiff having, by diligence, acquired a specific lien upon the rents superior to the equities of M., was entitled to retain them to apply on his mortgage. — Ct. of App., Nov. 1880. Eanney v. Peyser, 83 IS. Y. 1 ; reversing 20 Hun 11. 59. Restraining waste by mort- gagor. In an action for the foreclosure of a mortgage, after judgment, and a sale in pur- suance thereof, and while awaiting the confirma- tion of the court for the payment of the purchase money and the delivery of the deed, the court has authority, on the petition of the purchaser, to restrain the mortgagor from committing waste. — Ct. of App., Jan., 1880. Mutual Life Ins. Co. V. Bigler, 79 N. Y. 668. 60. The petition of the purchaser in such a case showed that the iportgagor was threatening to remove certain machinery from a mill upon the premises, which machinery the petitioner claimed to be part of the realty. Held, that an order restraining the mortgagor from removing the machinery until the confirmation of the report of sale and the receipt of the deed by the purchaser, was proper ; but that it was not necessary to adjudge the question as to whether the articles of machinery were fixtures passing with the land ; that this was a question which should not be adjudged summarily on a motion. Leave therefore granted to either party to bring an action to determine that question. lb. 61. Motion for judgment— affidavit of regularity. A motion was made by plain- tiff in a foreclosure suit for judgment, based upon an affidavit of regularity under rule 63, all the parties being in default except an infant who had appeared and interposed an answer by his guardian ad litem, raising a material issue, namely, the amount unpaid on the mortgage held by the plaintiff.' Held, that the motion, being based solely upon rule 63, must be denied.— Syeme Ot., (Sp. T.,) Sept., 1880. Jackson v. Eeon, 60 How. Pr. 103. 62. Provision in judgment as to in- terest. It was stipulated in plaintiff's mort- gages which were executed prior to the passage of the act (Laws of 1879, ch. 538,) reducing the rate of interest to six per cent., that the principal sum should bear interest at seven per cent, unlU paid. By the decision and judgment entered thereon, interest was directed to be paid on the amount found due, from the date of the decision, , at the rate of seven per cent. Held, error ; that after entry of judgment the mortgages were merged therein, and thereafter plaintiff was entitled to interest, not by virtue of the mort- gages, but of the judgment ; and so, that the mterest should have been at the lawflil rate. — a. of App., March, 1881. Taylor v. Wing, 84 N. Y. 471 ; reversing 23 Hun 233. 63. Notice of sale. A sale of real estate, under a decree of foreclosure, will not be set aside because the notice of sale was not published in all the editions of the paper issued on the days on which the notice was published. — Supreme Ct., (7d Dept.,) S^t., 1880. Everson v. Johnson, 22 Hun 115. 64. Validity of the sale. The word " must," in the last sentence of ? 1678 of the Code of Civil Procedure, is directory merely; and whether, in foreclosure, a sstle of two or more distinct buildings, &o., is proper or not, is to be determined by the circumstances of each case. — Com. Pleas, {&>. T.,) June 1881. Wallace v. Feely, 1 Civ. Pro. 126 ; S. C, 61 How. Pr. 225. 65. Order of sale. As to the order of sale on foreclosure, where portions of the land covered by the mortgage in suit have been con- veyed subsequent to the giving of the mortgage, see ZabrisEie v. Salter, 80 N. Y. 555 ; Hopkins MORTGAGES, VI. 193 V. WoUey, 81 N. Y. 77 ; Coles v. Appleby, 22 Hun 72. 66. Who may be purchaser. The usual provision in a decree of foreclosure, that any of the parties to the suit may purchase on the sale, will not permit one defendant to bid in premises belonging to another, and to hold them against the latter contrary to equity. — Cl. of App., June, 1880. Bennett v. Austin, 81 N. Y. 308, 337. 67. Oompelling purchaser to take title. Where a purchaser at foreclosure sale sought to be relieved from his purchase on the ground that three distinct buildings situated on the same city lot, access to none of which was obtained through any of the others, were sold together instead of separately ; and that the heirs of the mortgagor and owner of the equity of redemption, who had died since the sale, claimed an interest in the said premises by reason of the failure to sell separately. Hdd, that the purchaser should not be relieved on the ground that the buildings, &c., were sold together, it appearing that such was the most advantage- ous mode of sale ; and, that as it appeared that the mortgagor and owner of the equity of redemption had notice of the proceedings and was chargeable with notice of the mode of sale and had not come in to object, he would be estopped from afterward objecting, and his heirs would be equally estopped by his acquiescence. Wallace v. Feely supra. 68. Setting aside the sale. When a sale had under a decree in foreclosure of a rail- road mortgage will not be set aside, see Peck v. New Jersey, &c. K'y Co., 22 Hun 129. 69. Pees of referee to sell. The act (Laws of 1869, ch. 569, as amended by Laws of 1874, ch. 192,) in relation to fees of sheriffs and referees on foreclosure sales, in the city and coun- ty of New York, was not repealed by the amend- ment of 1876 to § 309 of the Code of Procedure, which limits the sum to be allowed for fees on such a sale. The amendment simply modified the act by fixing the maximum of fees, leaving the scale of charges, up to this limit, as fixed by said act. — Cl. of App., March, 1880. Scher- merhom v. Prouty, 80 N. Y. 317. Nor were those enactments superseded by the Code of Civil Procedure. — Com. Pleas, ( Gen. T.,) May, 1881. Lockwood v. Fox, 61 How. Pr. 522. 70. Determination of claims to sur- plus moneys. Upon a reference as to sur- , plus moneys in such an action, the referee has authority to inquire as to the validity of con- veyances or liens ; and conveyances, as well as liens, may be attacked as fraudulent. — Ct. of App., Dec., 1879. Bergan v. Carman, 79 N. Y. 146. 71. The rights of contesting parties as to surplus moneys, determined, in cases depending upon unusual and complicated questions of fact, but involving no new or important principles of law. Erie County Savings Bank v. Eoop, 80 N. Y. 591; Rogers v. Ivers, 23 Hun 424. 72. Protection of prior liens. To this action — brought by plaintiff to foreclose a mort- gage given by one C. S. Lester— Lucy C. Lester, his wife, C. S. Grant, and E. M. Harris were made parties defendants, the complaint contain- ing the usual allegations that they held inter- ests or liens which had accrued subsequently to the lien of the plaintifl's mortgage. Grant ap- peared, but did not answer. Lucy C. Lester and Harris appeared and answered, denying that their liens were subsequent to that of the mortgagee, and demanded and obtained a judg- ment declaring that the inchoate right of dower of Lucy C. Lester, and a mortgage held by her, and a judgment held by Harris, were prior and superior to the plaintifl's mortgage, and direct- ing the premises to be sold subject to their said liens. Upon on appeal from an order denying a motion made by Grant to have the clause es- tablishing the priority of the Hens of Lester and Harris stricken from the judgment, and to have the sale set aside — Held, 1. That it was not necessary for Lester or Harris to have answered, setting up the priority of their respective liens, as the entry of the usual judgment of foreclosure and a sale thereunder would not have cut them off if they were prior in fact. 2. That upon their serving answers, setting up the priority of their liens over that of the plaintiff, the court should have dismissed the complamt as to them, but should not have ren- dered a judgment establishing the priority and amount of their liens as against the defendant Grant. 3. That the order should be reversed. — Su- preme Cl.,' (3d Dept.,) Nov., 1880. Payn v. Grant, 23 Hun 134. 73. Quosre, as to whether the defendants Les- ter and Harris could, by serring their answer upon the defendant Grant, as provided by § 521 of the Code of Civil Procedure, have litigated and established the priority of their liens in this action. lb. 74. Judgment for deficiency. The mortgage in suit, which contained no covenant to pay taxes, was executed by defendant D. in 1872. He sold the premises in 1873 to defendant G., who assumed the payment of the mortgage. In 1874, G. sold the property subject to the mortgage. The judgment of foreclosure permitted the purchaser to retain out of the purchase money the amount of all taxes and assessments which, at the time of the sale, were a lien on the premises, and J578 were deducted to discharge taxes due upon the premises. Held, that a motion by G. to de- duct the $578 from the judgment against him for deficiency, came too late after sale under the decree ; and that, at any rate, G. was liable for the deficiency after deducting such taxes from the purchaser's bid. — Supreme Ct., {Sp^.,} Jan., 1881. Fleishauer v. Doellner, 60 How. Pr. 438 ; S. C, 9 Abb. N. Cas. 372. 75. In this action, brought by plaintiff to foreclose a mortgage given by defendant, the usual judgment of foreclosure and sale, and for any deficiency that might arise thereon, was en - tered on January 8th, 1879. On June 13th, 1879, the plaintiff obtained an order vacating the judgment, and allowing him to amend by bring- ing in an additional party. Thereafter, and be- fore any further proceedings were taken, au; other action was commenced to foreclose a prior mortgage upon the same premises, and under a decree in the latter action they were sold for an amount only sufficient to pay the said first mort- gage and the costs of its foreclosure. There- upon the plaintiff moved to vacate the order set- ting aside the judgment, and for a direction that ' a judgment for a deficiency be entered against the defendant for the full amount due on the second mortgage and the bond to which it was collateral. Held, that the motion was properly 194 MORTGAGES, VI., VII., VIII. denied, and that the plaintiff's remedy, if any, was by an action at law upon the hand.— Supreme a., {1st Dept.,) Nov., 1880. Loeb v. Willis, 22 Hun. 508. 76. Subsequent suit to recover defl- cienoy against persons not parties in foreclosure. A mortgagee who has recovered a deficiency judgment against the administrators of a deceased mortgagor, cannot maintain an action to have his judgment declared a lien upon surplus money arising upon the foreclosure of a mortgage upon other lands given by the deceased mortgagor to another mortgagee. — Supreme Ct., (2(i Dept.,) May, 1881. Fleiss v. Buckley, 24 Hun 514. 77. The only remedy of the holder of the deficiency judgment, except as against the per- sonal property in the hands of the administra- tors, is by an action against the mortgagor's heirs or devisees, in which, if such heirs or devisees be insolvent, the court may direct their officer to hold the surplus moneys and apply them in sat- isfaction of the judgment. lb. See, also, Fleiss V. Buckley, 22 Hun 551. 78. An action upon a guaranty of a mort- gage is within the provision of the Revised Statutes (2 Kev. Stat. 191, ^ 153, 154,) prohib- iting any proceedings unless authorizeid by the court, after bill filed to foreclose a mortgage, for the recovery of the debt secured by the mort- gage ; and in the absence of such authority the action is not maintainable. — Ct. of App., Feb., 1881. McKeman v. Robinson, 84 N. Y. 105 ; affirming 23 Hun 289. 79. Where, however, such an action has been commenced without previous authority, the court may, by subsequent order made nunc pro time, grant permission, and so remove the impediment to the maintenance of the action founded upon the statute, lb. VII. Redemption. 80. Bight to redeem, generally. As security for advances made to the firm of B. & A., B. and wife and A. deeded to S. G. A. their interest in certain premises, upon which were two elevators ; the wife of B. having a separate interest therein. Prior to this, the said firm had, in connection with the owners of other elevators, entered into an agreement with the W. E. Co., by which they nominally leased their elevators to that company for three years ; they, however, retaining possession and oper- ating the elevators, receiving a specified com- pensation for their services and expenses, and the profits being divided among the several owners. The said firm had also assigned their share in the profits to S. & Co., the holders of a prior mortgage, to be applied in liquidation of the debt secured by the mortgage, and also of prior iucumbraupes. S. G. A. had full notice of this arrangement when he took his deed • he, thereafter, by setting up the apparent title conferred upon him by his deed, and without the consent of B. & A. or of S. & Co., induced the W. E. Co. to substitute in place of said agreement a new one with him as owner of the elevators, of which he took possession, and he thereafter received and retained the dividends. S. & Co. thereupon foreclosed their mortgage, and by arrangement with them, S. G. A., after judgment, obtained control of the sale, and be- came the purchaser for the amount of the judg- ment. In an action to have the deed to S. G. A. declared a mortgage, and to redeem, etc. — Held, that defendant, as devisee of S. G. A., could not, in equity, avail herself of the title obtained on foreclosure sale to defeat plaintiff's equity of redemption ; that B. and wife had the right to have the dividends set apart for the re- duction of the mortgage of S. & Co. applied to that purpose ; that when S. G. A. possessed himself in the manner specified of said divi- dends, he became ex maleficio, constructively, a trustee of the fund, and the law imposed upon him the duty to apply the dividends to the pur- pose for which they had been appropriated; and that, therefore, he could not take advantage of his violation of that duty by becoming pur- chaser in his own behalf, and the purchase did not cut off the right to redeem. — Ot. of App., June, 1880. Bennett v. Austin, 81 N. Y. 308. 81. B., by not defending the foreclosure, was not concluded from contesting the title ob- tained under it, as he had no defence to the mortgage; nor was he affected so far as the question here is concerned, by the usual clause in the decree of foreclosure authorizing any party to the action to become a purchaser ; and this although the facts as to the assignment of the dividends and the subsequent action of S. G. A. were set forth in the complaint as the foundation of a claim against the latter for the dividends, lb. 82. S. G. A. was the owner, in his own right, of one-third of one of the elevators. Meld, that this fact did not change the principle applicable to the case, but ,would merely reduce the amount which he was bound to apply upon the mortgage of S. & Co. lb. 83. Bight of junior mortgagee to redeem. The holder of a junior mortgage is entitled to be subrogated to the rights of the holder of the senior mortgage upon payment of the amount thereof, and may, upon tender of the amount, compel an assignment, although he does not occupy the position of a surety. This relief may be granted upon motion before judg- ment, in an action to foreclose the senior mort- gage, in which the holder of the junior mort- gage is a party defendant. — Ct. of App-, Sept., 1880. Twombly v. Cassidy, 82 N. Y. 155, 158. Upon such motion, the plaintiff cannot object that the defendants, other than the moving party, have not had notice. lb. An order made in such a case directed an assignment to the junior mortgagee, or to a person to be named by him. Held, no error. lb. 84. Upon the motion, it was a question at issue, as to whether the junior mortgage was paid. Held, that the determination of the court below was conclusive upon the appeal. lb. 85. The order directed the continuance of the action, without costs, as against plaintiff. Held, that this was in the discretion of the courtj at least that plaintiff was not in a position to raise the question, lb. VIII. Discharge of the Lien by Payment. 86. Tender of the mortgage debt. To entitle a mortgagor to maintain an action to extinguish the lien of his mortgage because of a tender of the amount due and a refusal to ac- cept, the tender must be kept good. — Ct. of App., June, 1880. Tuthill v. Morris, 81 N. Y. 94, 100. MORTGAGES, YIII.— MOTIONS AND ORDERS. 195 8*7. The rule that a party coming into a •court of equity for affirmative relief must him- self do equity, requires, in such case, that the mortgagor pay the debt secured by the mort- gage, with costs, in any foreclosure proceedings, and the interest at least up to the time of the tender. lb. 88. The most that can equitably be claimed by the mortgagor is relief from the payment of interest and costs, subsequent to the tender, and *o entitle him to this he must keep the tender good from the time it was made. lb. 89. To establish a tender and refusal, such as will discharge the lien of a mortgage, with- out the tender being kept good, the proof must be clear that the tender was fairly made and ■deliberately and intentionally refused by the owner of the mortgage or some one duly au- thorized by him, and that sufficient opportunity was afforded to ascertain the amount due; at least it should appear that a sum was absolutely and unconditionally tendered, sufficient to cover the whole amount due. lb. 90. In an action to have two mortgages de- clared extinguished, and to restrain foreclosure, it appeared that defendant, being the owner of the mortgages, which were executed by plaintiff to secure certain notes, proceeded to foreclose by statutory proceedings; he employed S. to «ngage an auctioneer and to attend the sale on his behalf and see that it was properly con- ducted. S. was not the attorney in the proceed- ing, nor was he in any way connected with it, and his first and only connection with defend- ant or the foreclosure was in compliance with such request ; he had no express authority to receive a tender. At the time and place ad- vertised for sale S. attended and was presented with a summons, complaint and order of in- junction in an action by plaintifi against de- fendant. S. declined to receive or to admit •service thereof on behalf of defendant. The injunction order directed the sale to be upon the terms, among others, that ten per cent, of the bid be paid down. S. thereupon announced his determination to adjourn the sale. Plaintiff's attorney thereupon tendered to S. a package of greenbacks containing $6300, saying he wanted to pay the whole amount if S. would let him know what it was ; he did not state the amount of the money. 8., on being asked if he would not take the money, said he would not, as he was not authorized. He asked plaintiff's attor- ney what he wanted to pay for ; the latter an- swered, the notes, interest and costs. S. stated he did not know the amount. The auctioneer thereupon, under the instructions of 8., an- nounced the adjournment of the sale for thirty days. The amount of principal and interest, as appeared by the notice of sale, was $6150 and upwards ; the amount of costs did not ap- pear. Held, that the evidence failed to show a sufficient tender. lb. As to mortgages of Chattels, see Chattel Mortgages. MOTIONS AND ORDERS. 1. Time to move. It is within the dis- cretion of the court, and is a proper exercise thereof, to deny, as prematurely made, a motion to charge the person beneficially interested in the recovery in an action (2 Eev. Stat. 609) with the payment of a judgment for costs en- tered therein, when an appeal from said judg- ment is pending at the time said motion is made, though no security upon appeal has been filed, and no stay of proceedings granted. The denial of the motion upon said ground may be deemed" equivalent to a stay. — Superior Ct., April, 1880." Slanson v. Watkins, 46 Superior 172. 2. WTien motion may be made to judge out of court. Under Code of Civ. Pro., I 770, any application, except for a new trial upon the merits, which, elsewhere, must be made in court, may, in the first judicial dis- trict, be, made at any time to a judge out of court. — Supreme Ot., (Isi Bept.,) June, 1880. Boucicault v. Bouoicault, 21 Hun 431. 3. Order to show cause. Upon a mo- tion to set aside an order for irregularity, the order to show cause must, under rule 37, specify the irregularity, even if it appear in the affi- davit. — Superior Ct., Nov., 1880. Garner v. Mangam, 46 Superior 365. 4. It is within the power of the court or a judge thereof to grant an order to show cause, returnable in more than eight days, where a greater period than that number of days inter- vened between the day of service and the day on which the motion was to be answered and was in fact heard. Such an order is merely the substitute for the ordinary notice of motion. — Supreme Ct., {1st Dept.,) Jam., 1881. Gross v. Clark, 1 Civ. Pro. 17. 5. Code of Civ. Pro., ? 780, requiring that the moving affidavit disclose a reason for grant- ing an order to show cause, does not apply to surrogate's courts. — Kings Co. Surr. Ct., June, 1881. In re Harris, 1 Civ. Pro. 162. 6. Renewal of motion. The doctrine that a motion once denied cannot be renewed as a matter of right and without leave of the court, except upon facts arising subsequent to the decision, does not apply to a case where the party proceeds in the second motion upon a distinct property interest and right from that involved in the first motion. — Ct. of App., Dec., 1880. Steuben Co. Bank v. Alberger, 83 N. Y. 274. 7. Service of orders. Returning order. Where a copy of an order of the court has been served at the office of an attorney, he will not be justified in returning the same for any of the following reasons : 1. That the no- tice of entry fails to specify the county in which the order is entered. 2. That it does not recite the filing of a paper used upon the motion. 3. That it was not a certified copy. 4. That it was served upon a person in the office of the attor- ney, not in his employ, when he himself was in the office and easily accessible. Gross v. Clark, 8. The attorney, at the time service of a copy of an order was made, did not appear to be in the room which was entered by the person em- ployed to make the service, and he accordingly delivered it to the individual found in charge of the office. Held, 1. That such service was regular. 2. That such service was not rendered inef- fectual by reason of the circumstance that the 196 MUNICIPAL COEPORATIONS, I. II., attorney himself was in an axjjacent room at the time; and that if it had, the fact that the copy order soon thereafter came to the hands of the attorney, corrected any possible irr^ularity. lb, 9. Service of a judge's order, in a case where it is not sought to bring a party into contempt for non-compliance therewith, is properly made by delivery of a copy to, or for, the person upon whom the service is to be made. The original need not be exhibited. lb. 10. Their effect. Effect must be given to an order of the court according to its terms. — a ofApp., June, 1880. Fisher v. Gould, 81 N. Y. 228. MUNICIPAL CORPORATIONS. I. Incoepokation and Chaetebs. n. POWEES. 1. In general. 2. Local improvements ; and assessments therefor. m. LlABIUTrES. 1. In general. 2. Upon bonds in aid of railroads, 3. For wrongs; and herein of liability for defects in streets, IV. MimicrPAL Oppicbes. V. Decisions op a Local Chaeactee, ap- FECTma A Paetioxtlae City oe Vii- lAGE ONLY. I. Incoepoeation and Chaetees. II. POWEBS. 1. In 1. Municipal powers, generally. Pub- lic powers or trusts devolved by law upon the governing body of a municipal corporation, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others. But there is a distinction in this respect between acts quasi judicial or involving discre- tion, and those which are merely ministerial. — Supreme Ct., (4«A Dept,,) Jan., 1881. Edwards V. City of Watertowu, 61 How. Pr. 463. 2. Power to lease real estate. A mu- nicipal corporation or a county has the power to lease real estate when the use thereof is needed to carry out any of its acknowledged powers and purposes. — Ot. of App., Dec., 1880. Davies v. Mayor, &c., of New York, 83 N. Y. 207, 210; reversing 45 Superior 373. 3. Where the common council of a city has decided to lease certain rooms for city purposes, it may confer upon a committee appointed by it the power to arrange the rooms and procure the necessary furniture therefor. It may appoint the recorder of the city one of the members of such committee, although he is not a member of the common council. — Supreme Ct., {iihDept.,) April, 1881. Edwards v. City of Watertowu, 24 Hun 426. 4. Ordinances. By a city charter the common council were authorized to enact ordi- nances " to regulate the erection, use and con- tinuance of slaughter-houses." Eeld, 1. That the common council had power to pass an ordinance prohibiting the slaughter- ing of animals within certain specified portions- of the city ; and that under an amendment to the charter making the violation of a city ordi- nance a misdemeanor, an indictment lay for the violation of such an ordinance. 2. That it was not necessary, either in the or- dinance or in an indictment founded upon it, to allege the reasons for its enactment, or the exi- gency out of which it grew. — Ct. of App., Oct., 1880. Cronin v. People, 82 N. Y. 318. 6. Regxilation of streets and piers. A city, in its control over its streets and piers, cannot restrain an owner &om using ad- joining property. — Supreme Ct., {2d Dept.,) Dec., 1880. City of Brooklyn v. New York Ferry Co., 23 Hun 277. 2. Local improvements ; and assessments ther^or. 6. Grounds for vacating. Under Laws of 1874, ch. 313, in relation to vacating as- sessments for fraud or substantial error, an assessment will not be vacated for the omission of any officer to perform his duty. — Supreme Ct., {1st Dept.,) Sept., 1880. Matter of Pinckney, 22 Hun 474. 7. What errors or omissions in an assessment will not authorize the court to vacate it, see Matter of Dennis, 22 Hun 607. 8. "WTio may move to vacate: One who purchases the property assessed subject to the assessment, and agrees to pay the assess- ment, cannot apply to have it vacated. — N. Y. Supreme Ct., {1st Dept.,) N mortgages upon the premises, unless the statement re- quired by ch. 387 of 1840, as amended by ch. 266 of 1844, has been filed. — Supreme Cl., Sept., 1880. Dubois v. City of Poughkeepsie, 22 Hun 117. 55. Under the amended charter, the city has power to sell lands for unpaid state and county taxes, as well as for unpaid city taxes, and is entitled to collect interest at the rate of one per cent, per month upon all of the said taxes lb. 56. Under Laws of 1874, ch. 497, I 8, pro- viding that the city attorney shall, upon mak- ing a sale, have " such fee as the common coun- cil may fix," the common council may fix the attorneys' fees for all future sales in one resolu- tion, lb. 57. The charter provided that every tax should be a lien upon the real estate charged with the payment thereof for two years from the signing of the warrant for its collection. Held, that the sale must be made before the ex- piration of the two years, and that it was not enough that all the preliminary proceedings had been taken, and the advertisement com- menced within that period, where the sale took place a few days after the expiration thereof. 2b. 58. Rhinebeck. The section of the village charter (Laws of 1867, ch. 360, ? 25) in reference to laying out streets, etc., and assessing the ex- penses thereof, is not violative of the consti- tutional provision of the state (art. VIII.-, § 9,) requiring the legislature to restrict the power of taxation and assessment of municipal corpora- tions.— C<. of App., Oct., 1880. Matter of Livingston Street, 82 N. Y. 621. 59. The power given in said section to apply to the court for the appointment of a second set of commissioners without notice to the property- owners is not at variance with the constitutional provision (art. VI., i 1,) declaring that no person shall be deprived of property without due process of law. lb, 60. The fact that said section gives power to the trustees to confirm or annul the report of commissioners, and makes their decision final and conclusive, is not fatal to the section or to proceedings under it; the legislature had au- thority to grant the power, lb. 61. The trustees of the village have power to proceed under said section without the certificate of freeholders, such as is required by commissioners of highways of towns. The provisions of the charter are paramount to those of the statute governing the action of such commissioners. lb. 62. The provisions of the cliarter were amended in 1870 (Laws of 1870, ch. 323,) so as to require the application of six freeholders before the trustees could take action to open a new street. The amendatory act was repealed in 1879. (Laws of 1879, ch. 452.) Held, that the original provisions were thereby restored and came again into force, lb. 63. Where proceedings were taken under said section of the charter to open a street and commissioners were appointed to assess damages for the land taken— fieW, that the proceedings were not affected by a subsequent act amending the village charter (Laws of 1880, ch. 324,) making I'he power of the trustees to institute such proceedings dependent upon the petition of twelve freeholders, lb. 64. Bocliester. Wher^, in pursuance of statutes (Laws of 1872, ch. 387 ; Laws of 1875, ch. 563,) imposing upon the city a system of water-works, ;' for the use of its inhabitants and the extinguishment of fires," lands were pur- chased and a reservoir constructed in the town of Eush — Held, that the work was to be regarded as executed for the public benefit, and the property, therefore, as held -for public purposes ; and so, that in the absence of an ex- press legislative declaration authorizing it, it was not subject to taxation, and that a tax imposed thereon in said town was illegal and void.— Ci. of App., March, 1880. City of Rochester v. Town of Eush, 80 N. Y. 302 ;' re- versing 15 Hun 239. 65. Where, however, the said property was assessed by the town assessors, and the city paid the tax to the town collector, who paid it over to the county treasurer, by whom it was applied " in the same manner as other taxes assessed and collected in said town," i. e., a portion paid to the authorities of the town, a portion to the proper state officers and the residue retained for county purposes— jEfeW, that an action could not be maintained against the town to recover back the tax, or that portion thereof paid over to the town officers, as the town has no treasurer, and its officer to whom the money was paid do not represent it, their functions being prescribed by statute, and the money they received being expended in the performance of official duty. lb. 66. It seems, however, that the city has a remedy in such case under the provision of the statute extending thfe powers of boards of super- visors (Laws of 1869, ch. 855, as amended by Laws of 1871, ch. 695, ? 5,) which requires the board of supervisors of a county, upon the order of the county judge, to refund the amount of any tax illegally or improperly assessed, lb. 67. Saratoga Springs. Laws of 1875, ch. 517, providing for the settlement of the floating debt of the village, after creating a board of auditors, declares " that their first duty shall be to thoroughly examine and investigate all claims and accounts against said village em- braced in the floating debt thereof, and to audit and allow so much of the same as is just and equitable." Held, 1. That by the term "floating debt" was meant only the unpaid legally-authorized obligations of the village, and that it did not in- clude a claim for services rendered or supplies furnished in violation of i 61 of its charter (ch. 220 of 1866, as amended by ch. 760 of 1871,) which provides that no debt shall be incurred or created, nor any expenditure made until the money or tax for that specific object sliall have been voted or raised. 2. That when the bills incurred for any specific object did not exceed the money voted and raised therefor, the rights of the owners of such bills were not affected by the wrongful diversion of the money to other purposes. — Supreme Ct., MUNICIPAL CORPORATIONS, V.— NE EXEAT. 201 (3d Dept.,) Nov., 1880. Cooke v. Village of Saratoga Springs, 23 Hun 55. 68. The act of 1875 provided that no suit should be brought against the village except upon audited bills. Sdd, that interest on the claims could only be allowed from the time of their audit. lb. 69. Syracuse. The common council of the city passed an ordinance prohibiting the ped- dling or delivery of milk from any vehicle in the streets, etc., of the city, without a license, au- thorizing the mayor to grant licenses, and declaring the violation of said ordinance a mis- demeanor. Held, 1. That the ordinance was within the power conferred upon the common council by the charter of the city. (Laws of 1857, ch. 63, SH,6.) 2. That said ordinance was not in conflict with the privilege of selling milk to the inhabi- tants of said city granted to the O. C. M. Asso- ciation by its charter (Laws of 1872, ch. 102) ; that the franchise was simply to sell as a corporate body, and gave no more right to the corporation in that regard than its members had as individuals; and that the corporation was affected by the lawful ordinances of the city the same as an individual. — Ct. of App., Oct., 1880. People, ex rel. Larrabee, v. MulhoUand, 8B JSr. Y. 324 ; affirming 18 Hun 548. 70. Troy. The city charter (Laws of 1872, ch. 129, § 10,) provides that no civil action shall be brought against the city for injuries to persons 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, * * * and that the comptroller did not, within sixty days, audit the same." Plaintiff presented a petition, as required, setting forth the facts and claiming damages to the amount of $10,000 for injuries alleged to have been caused by the negligent omission of the city to keep one of its streets in repair. The claim not having been audited as prescribed, this action was brought. The complaint alleged, substan- tially, the same facts as the petition, and claimed $5000 damages. Held, that the word " claim," and the phrase " cause of action," related to the same thing ; that although the amount of com- pensation was different, the claim presented in the petition and the cause of action set forth in the complaint were identical ; and that there was a sufficient compliance with the provisions of the charter. — O,. of App., Jan., 1881. Minick V. City of Troy, 83 N. Y. 514; affirming 19 Hun 253. 71. The common council may fix the price to be paid for publication of its proceedings. — Sw- preme Ct., {Sd Dept.,) Jan., 1881. MacArthur V. City of Troy, 24 Hun 55. 72. West Troy. Under the charter of the village (Laws of 1850, ch. 230, §? 31, 32, 33,) the trustees thereof have no power to audit claims against the village, arising out of torts, and the claimant, to entitle him to recover costs therein, is not required by Laws of 1859, ch. 262, to pre- sent his claim to the chief fiscal officer of the village before bringing an action thereon. — Supreme Ci., {3d Dept.,) Nov., 1880. Childs V. Village of West Troy,^ 23 Hun 68. For decisions of a local character applicable to the City of New York, see New York City. MURDER. Homicide, L N. NATIONAL BANKS. Basks and Banking. NATURALIZATION. Citizens, 2, 3. NECESSARIES. Husand and Wipe, 6, 7, 11; Parent and Child, 1. NE EXEAT. Abolition of the writ. A ne exeat was issued herein in March, 1869. A motion was made in May, on the part of defendant, to vacate the writ and the order for its issue, or to reduce the amount of bail, and that a sum deposited with the sheriff be restored, and for general re- lief The motion appears to have been founded on the merits ; it did not appear in the notice of motion, or in any of the papers, that the ground of want of power was taken. The order luade upon the motion simply directed a reduc- tion of the bail and a return of the money de- posited in excess of the amount fixed ; no fur- ther disposition of the motion to vacate was made. An appeal was taken in January, 1879. On appeal to this court — Held, the presumption was that all that was presented to or passed upon by the Special Term was the right of de- fendant to relief upon the facts ; that under the circumstances, as the question is not distinctly presented by the order appealed from, and as Code of Civ. Pro., § 548, has declared in tel-ms that the writ is thereby abolished, thus render- ing the question of no practical importance, so far at least as future cases are concerned, the court would not review the many decisions of 202 NE EXE A.T— NEGLIGENCE, I. the Supreme Court, prior to the new code, hold- ing the writ not abolished. — Ot. of App., Feb., 1880. Collins v. Collins, 80 N. Y. 24. NEGLIGENCE. I. What Amounts to Negligence, and THE Liability Therefor. II. Contributory Negligence. I. What Amounts to Negligence, and THE Liability Therefor. 1. Who is liable for negligence. One , O'C, having applied by his agent, W., to plain- tiff, for a loan on bond and mortgage, was told to procure a proper search from the county clerk's office, and that if the property was clear he could have the money. W., acting for O'D., and at his expense, procured from the defend- ant, the county clerk, a search against the premises, from which was omitted a deed, then on record, by which O'D. had conveyed to an- other person the premises in question. The plaintiff, having made the loan in reliance upon the search, and being unable to collect the money on his bond and mortgage, brought this action against defendant to recover the said amount as damages for the negligence of defend- ant in omitting the deed from the search. Seld, that defendant owed no duty to plaintiff, and was not liable to him for the damages occa- sioned by his omission of the deed from the search. — Supreme Ct., (3d Dept.,) Nov., 1880. Day V. Reynolds, 23 Hun 131. 2. Tlie complaint. Although in an action to recover damages, alleged to have been caused by the defendant's negligence, the burden of proof is on the plaintiff to show upon the trial by competent proof that his negligence did not contribute in any degree to the injury com- plained of, yet it is not necessary for him to specifically allege these facts in the complaint. It is sufficient to aver therein that the injury and damage complained of was caused by the negli- gence of the defendant ; the averment that the negligence of the defendant was the cause of the injury is equivalent to an averment that it was the sole cause. — Supreme Ct., (3d Dept.,) Nov., 1880. Urquhart v. City of Ogdensburg, 23 Hun 75. 3. The burden of proving negligence. It seems that in an action to recover damages for injuries occasioned by falling through a coal hole in a sidewalk, it is not necessary to prove negligence on the part of the defendant; nor, in the first instance, want of contributory negli- gence on the part of plaintiff. The action is not based upon negligence, but a wrongful act, and all that is necessary for plaintiff to prove to make out a cause of action is, the existence of the hole, defendant's responsibility therefor, and that in passing plaintiff fell into it. When permission is given by a municipal authority to thus inter- fere with a sidewalk, solely for private use and convenience, the person obtaining the permis- sion must see to it that the street is restored to its original safety and usefulness. — Ct. of App., April, 1880. Clifford v. Dam, 81 N. Y. 52. 4. Evidence to prove negligence. While, in an action for negligence, it is neces- sary for the plaintiff to show affirmatively that the negligence of the defendant was the sole- cause of the injury complained of, it is not necessary that this be done by positive and di- rect evidence ; proof of circumstances from which the inference may fairly be drawn is sufficient. —Ct. of App., Feb., 1880. Hart v. Hudson Eiver Bridge Co., 80 N. Y. 622. 5. In an action to recover damages for al- leged negligence, proof of the violation of a city ordinance does not establish negligence per se ; it is competent evidence upon the ques- tion to be submitted to the jury, but not con- clusive. — Ct. of App., Mairch, 1881. Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488 ; reversing- 23 Hun 159. 6. Instances. Plaintiff, a brakeman in defendant's employ, was injured by the break- ing of an eye-bolt connecting the chain with the rod of a brake. In an action to recover damages it appeared that the eye-bolt was de- fective in not having been properly welded. There was no evidence of notice of the defect to defendant, or any of its agents, nor was it shown that the defect could have been discov- . ered by inspection ; there was evidence that the maker of the bolt could have discovered the defect by bending it while hot and in other ways, but it did not appear whether the eye- bolt was made by the company or purchased ;. and no want of care, the exercise of which would have discovered the defect, was shown. Held, that the plaintiff failed to make out a case, so far as it rested upon the imperfection referred to. — Ct. of App., Nov., 1880. Paiutott ■,. Northern Central R'y Co., 83 N. Y. 7. 7. There was evidence, however, that the eye-bolt was smaller than those used by de-i fendant at the time of trial ; that the breaking of the chains had formerly been of frequent oc- currence. The eye-bolt in question and one of the larger eye-bolts adopted since the accident were produced, and submitted to the inspection of the jury. Held, that while the proof of negli- gence on the part of defendant was slight, suffi- cient was shown to justify the submission of the question to the jury. lb. 8. Plaintiff's sleigh was upset by striking against a switch laid down by defendant in a street in the city of B., to connect its tracks with that of another road over which it ran its cars. The evidence tended to show that the switch was higher above the pavement than was ne- cessary or reasonable ; that defendant had put salt on its track, which had melted the snow and caused the slush to run down and cover the switch from sight. Accidents had frequently happened to other passing vehicles from the same cause. In an action to recover damages — Held, that the evidence justified the submission of the question of defendant's negligence to a jury .— Qi. of App., Dec., 1880. Wooley v. Grand Street, &c., R. K. Co., 83 N. Y. 121. 9. 'The plaintiff, who was blind in one eye, while passing in the night-time over a bridge, which was not guarded by a railing, unexpect- edly met a loaded team, in attempting to avoid which he stepped off the bridge and sustained injuries, to recover damages for which this ac- tion was brought against the commissioners of highways. Upon the trial before the court, without a jury, the plaintiff was allowed, against NEGLIGENCE, I., II. 205 the defendants' objection and exception, to show that after the accident the defendants had, in pursuance of a resolution adopted prior thereto, placed a railing upon the bridge, and this evi- dence was considered by the court as bearing upon the question of the defendants' negligence. Held, that the court erred in admitting the evi- dence. — Sum-erne Ol., (3d Dept.,) Jan., 1881. Morrell v. Peck, 24 Hun 37. 10. How far proof of the subsequent erection of the rail was admissible for the purpose of proving funds in defendants' hands, and that they exercised control over the bridge ; and its admissibility when considered in connection with the fact that the railing was put up in ac- cordance with a resolution adopted prior to the accident, considered. lb. 11. Bxhibitio^ injured limb to jury. In an action for injuries to the person, caused by the negligence of defendant, it is not error to allow the plaintiff to exhibit to the jury the injured limb, e. g., an arm which has been crushed by machinery. — Superior Gt , Nov., 1880. Jordan v. Bowen, 46 Superior 355. 12. "When the question is for the jury. Where, from the circumstances shown, inferences are to be drawn which are not cer- tain and incontrovertible, and as to which per- sons might differ, it is for the jury to decide. — Hart V. Hudson Kiver Bridge Co., supra. 13. Where there is a conflict of testimony as to whether the car upon a street railroad was stopped at the request of the deceased, and again negligently started while he was in the act of alighting, the case should go the jury, notwith- standing that it appears that the passenger was unnecessarily upon the front platform, and at- tempted to alight therefrom. — Superior Ol., Dec., 1880. Lax V. Forty-second St., &c., K. K. Co., 46 Superior 448. 14. While plaintiff was driving his mare across the track of defendant's road at the in- tersection of two streets in the city of T., her foot caught between the planking and one of the rails and she was injured. Upon the trial of an action to recover damages, plaintiff's evi- dence was to the fact that there was over three and one-fourth inches between the plank and the rail, while two and one-quarter inches was all that was required for the passage of the flanges of the car wheels, and because of this the horse's hoof got into the open space and the toe-calk caught under the rail ; that the plank was from one-fourth to three-eighths of an inch higher than the lop of the rail ; and that the crossing was constructed differently from others upon defendant's road and upon other railroads. Plaintiff ivas nonsuited, on the ground that there was no evidence of negligence on the part of defendant. Beld, error ; that the question of negligence was one of fact for the jury. — Ct, of App., Jan., 1881. Payne v. Troy, &c., R. E. Co., 83 N. Y. 572. 15. Proper instructions to the jury. The evidence was to the effect that, as between the defendant and the other street railway, with whose tracks the switch made a connection, the defendant was to keep the switch and the abut- ting pavements in good condition. The court was asked to charge that if the switch was properly put down defendant was not chargea- ble; the request was refused, but the court charged that if the switch was skillfully put down and was in itself no obstruction, which a Serson could not, with ordinary care and pru- ence, avoid, the proposition would be correct. Held, no error ; that although the switch was a proper one and well laid down, if it subse- quently, from any cause, was raised to an undu» height above the pavement, or the pavement had sunk unduly below it, it was defendant's- duty to put it in good condition. Wooley v. Grand Street, &c., R. K. Co., mpra. 16. After the court had charged, in substance, that the switch used was not in itself objection- able, but was only so if found by the jury to- have been, at the time, too high to be compati- ble with defendant's right to a reasonable use- of the street and to have been an obstruction,, was asked by defendant's counsel to instruct the jury that defendant was not chargeable with negligence in putting down the switch he did, that the switch used was not an obstruction in law, if properly laid. The court replied it would leave that to the jury. Held, that the request and answer must be considered in view of what the court had already charged, and so considered was not error. lb. II. CoNTRIBUTORy NEGLIGENCE. 17. The care required. Although the- degree of care and prudence required of one- traveling upon a street wherein a street railway , has been rightfully laid down, is greater than that required in traveling upon a street not so used, yet it may still be characterized as- ordinary. Wooley V. Grand Street, &o., R. E. Co., supra. 18. "What amotmts to contributory negligence. A plaintiff's own negligence,, or want of ordinary care or caution is not con- tributory, unless but for such negligence or want of ordinary care or caution, the collision, resulting in injury to the plaintiff would not have happened. — Supreme Ol., Dec., 1881. Healy v. Dry Dock, &c., R. R- Co., 46 Superior 473. 19 Where a defendant, after becoming aware of plaintiff's danger by observing the condition and peril of plaintiff, could, by the exercise of reasonable care and prudence, have avoided the- collision, the negligence, &g., of plaintiff is not contributory ; in such case, it cannot be said that the collision would not have happened but for the negligence, &o., of plaintiff. lb. ■ 20. The fact that one has placed himself ia a place of danger can never be an excuse for another carelessly or recklessly injuring him. 16. 21. Upon the trial of this action, brought by the plaintiff, an employee of the defendant, to- recover damages for injuries sustained by reason of the premature explosion of a blast while he- was engaged in charging the hole, it appeared that the defendant was, to the plaintiff's knowl- edge, guilty of negligence in three respects, viz., in using damp, unglazed powder, in drilling a square instead of a round hole, and in using an iron instead of a copper spoon for charging it. Held, that the mere fact that the plaintiff con- tinued his work, with the knowledge of these facts, did not of itself establish contributory negligence as a matter of law on his part, but only authorized the submission of that question to the jury, and that the court erred in taking it 204 NEGLIGENCE, II. from them and non-suiting the plaintiff. — Su- preme Ot., (3d Dept.,) Jan., 1881. McMahon V. Port Henry Iron Ore Co., 24 Hun 48. 22. What contributory negligence on the part of the plaintiff will bar his action, see Toomey v. Turner, 24 Hun 599. 23. — in cases where children are in- jured. An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age. — Cl. of App., Jan., 1881. Byrne v. New York Central, &c., K. R. Co., 83 N. Y. ■620. 24. The plaintiff's intestate, a bright boy of nine years of age, waited on the westerly side of the defendant's road, at a public crossing, until a long freight train, which was going jn a southerly direction, had passed, and then immediately at- tempted to run across the track, without looking along it, to see whether another train was ap- proaching ; after having run about thirty or forty feet he was struck by the locomotive of a passenger train, going north, at a speed of about thirty or thirty-five miles an hour ; there waa a •curve just south of the crossing, which hid the tracks beyond it, and only about twenty-five sec- onds elapsed from the time the locomotive passed it until it struck the boy. Seld, that the ■court properly refused to non-suit the plaintiff on the ground that the deceased had been guilty of contributory negligence. — Supreme Cl., {2d Bept.,) Sept., 1880. Powell v. New York Cen- tral, &c., B. R. Co., 22 Hun 56. 25. The rules as to contributory negligence on the part of children, and the obligation as to care resting on persons having charge of a school, in regard to the safe condition of the premises, discussed and applied. — Supreme Ct., {Gen. T.,) May, 1881. Miller v. McCloskey, 9 Abb. N. Gas. 303. 20. Contributory negligence of an- •other than the plaintiff. This action was fcrought by the plaintiff, a married woman, to recover damages for injuries sustairled by her by reason of her being thrown from a carriage driven by her husband in one of the streets of the city of Cohoes on a Sunday evening. The accident was alleged to have been occasioned by the negligence of the defendant in allowing a, heap of earth to be thrown upon and left un- ^guarded in the street. Hdd, 1. That the court properly refused to non-suit the plaintiff on the ground that she met with the accident while violating the Sun- day law, in traveling on that day for a purpose other than " charity or necessity." 2. That the court properly charged that the plaintiff was not responsible for any careless- ness on the part of her husband in driving, un- less she did some act encouraging it. — Supreme Ct., (3d Dept.,) Jan., 1881. Platz v. City of Co- hoes, 24 Hun 101. 2*7. Plaintiff's testator was, by invitation of *he driver, a stranger, riding in a wagon upon a highway crossed by defendant's road. A wheel of the wagon went into a hole in the road hetween the rails of defendant's track, and he was jolted from the wagon and killed. In an action to recover damages the court charged in substance that " parelessness upon the part of the driver, assuming he was a competent driver and a sober man, and there was no rea- son which the deceased could discover why he .should not ride with him, would not defeat a recovery, unless the death was caused by his wrongful and willful act." Defendant's counsel requested a charge that " that if the driver's negligence was the proximate cause of the jar the plaintiff cannot recover." The court re- fused to alter its charge. Held, no error ; that the charge in this respect was sufficient. — Ct. of App., March, 1881. Masterson v. New York Central, &o., R. R. Co., 84 N. Y. 247. 28. Evidence as to contributory negligence. Where the testimony of single witnesses is susceptible of construction either for or against the existence of contributory negli- gence, the complaint should be dismissed. Bes- mond V. Rose, 46 Superior 569. 29. The rule that in an action for damages occasioned by negligence, the plaintiff must piove freedom from any negligence on his part conlii luting to the accident, applied to the facts of the particular case. — Supreme Ct., (2d Dept.,) Sept., 1880. Glendening v. Sharp, 22 Hun 78. SO. When a question for the jury. Plaintiff, while in the employ of defendant as locomotive engineer, was injured by the over- turning of his engine, caused by the bad condi- tion of defendant's road. In an action to re- cover damages, it appeared that plaintiff was running his engine, by express orders without cars attached, ahead of a passenger train ; he knew that the road was somewhat out of repair, and that he incurred some danger, but it did not appear conclusively that he knew how badly it was out of repair, or that the danger was very great. Three or four passenger trains, be- sides freight trains,' passed over the road daily each way ; it did not appear that any accident had previously happened, caused by the bad condition of the road. Plaintiff and other en- gineers had frequently run their engines over the road with safety, in the same way plaintiff was running his at the time of the accident. Plaintiff was ordered by competent authority to so run his engine, and he had the assurance that the road would soon be put in repair. Held, ^ that the evidence authorized the submission of the question of contributory negligence to the jury.— a. of App., Oct., 1880. Hawley v. Northern Central Railway Co., 82 N. Y. 370 j affirming 17 Hun 115. 31. Plaintiff, who was riding in a sleigh, knew that there was a switch in the locality in which he was driving, but it did not appear that he had in mind its precise location ; he was not thinking particularly of the switch at the mo- ment of the accident ; but, thinking the place waa one dangerous to cross without care, was going slowly and using great caution when his sleigh was upset. HeQ, that he was not, as mat- ter of law, chargeable with contributory negli- gence, but that the question was one for the jury. — Ct. of App., Dec., 1880. Wooley v. Grand Street, &c., R. R. Co., 83 N. Y. 121. 32. The defendants, wholesale dealers in stoves, occupied the upper stories of a building in New York city, for the storage of stoves, and received orders for and delivered them in the basement. An elevator, used by the defendants and other occupants of the building, ran from the upper story to the basement, and into a pit made in the floor thereof. The plaintifl, who had ordered some stoves in the morning, came in the afternoon to get them, and finding no one to attend to the matter in the basement, went to the elevator to call up to some one in the upper a NEGLIGENCE, IT.— NEW TEIAL, I. 205 story, and in so doing fell into the elevator pit and was injured. The basement was dark, and there were no guards around the pit. The plaintiff had been there before and knew where the elevator was situated, but did not know of the existence of the pit. "When there before, he had found a guard around the place where the elevator descended. In an action by him to recover damages for the injuries so sustained — Hdd, that the question of the plaintiff's con- tributory negligence was properly left to the jury, and that a verdict in his favor would not be disturbed. — /Supreme Ot., (2d Dept.,) Dec., 1880. Harris v. Perry, 23 Hun 244. 33. Instructions to the jury. Upon the question of contributory negligence the court charged : " It is not enough to prove facts from which either the conclusion of negligence or the absence of negligence may be with equal fairness drawn, but the burden is upon plaintiff to satisfy you that there was no contributory negligence on the part of the deceased." BrW, no error. — Ct. of App., Feb., 1881. Hart v. Hudson Eiver Bridge Co., 84 N. Y. 56. 34. The injury was caused by the wheel of the wagon in which plaintiff was riding running into a hole in the street. The court, after it had charged, in substance, that plaintiff could not recover if her negligence had in any man- ner contributed to the injury, and that* she was responsible for the conduct of the driver, her son, was asked by defendant's counsel to charge that "if the hole was one which might have been seen by the plaintiff or her son and readily avoided by the ordinary exercise of their eyes, the failure to avoid it constituted negligence." The court replied that this was substantially correct, save the expression '' might have been seen," as to which he charged, in substance, that if, in the use of ordinary care, the hole ought to have been discovered, plaintiff could not re- cover. Held, no error. — Ct. of App., Jan., 1881. Minick v. City of Troy, 83 N. Y. 514 ; affirming 19 Hun 253. For decisions upon the Liability of carriers, for negligence, see Cabbiebs ; Eailboad Com- panies, IV. As to negligence of CfUy and town authorities, see MxTNiciPAi, Cobpobations, 33-36. For the liability of Master to servant, for neg- ligence of the former, or of fellow servant, see Mastee aud Seevant, 6-16 ; Bailboad Companies, 45-53. NEGOTIABLE INSTRUMENTS. Bills of Exchange ; Pbomissoey Notes. NEW PROMISE. Bankettptcy, 9 ; Limitations op Actions, V. NEW TRIAL. I. Gbotjitds. n. The Application; and How Disposed I. Geobnds. 1. Misconduct of jurors. The constable- having allowed the jurors, after they had retired,, to come into the court-room, they, while there, found upon the floor and took back to the jury- room with them, a memorandum of the items of damages, made by tlie plaintiff's attorney and used by him in summing up. The court, upon the jury subsequently applying to it for instruc- tions, discovered that they had this memoran- dum, and, upon ascertaining how they had obtained it, took it from them, remarking that they had no right to it and must give no heed to it. The damages, as found by the jury, agreed with the directions contained in the charge of the court, in regard thereto. Held, that a. motion to set aside the verdict, based upon this irregularity, was properly denied. — Supreme a., {4th Dept.,) Oct., 1880. Dolan v. ^tna Ins. Co., 22 Hun 396, 403. 2. The]« is no presumption that individual iurors have compromised their opinions in arriving at the amount of their verdict in an action for libel where there is no evidence as to damages, from the mere fact that the verdict is for a certain number of dollars and three cents.. — Superior Ct., April, 1880. Meyer v. Press Publishing Co., 46 Superior 127. 3. Excessive damagres. A verdict for $15,000— IfeW not excessive in an action against a railroad company for personal injuries, in view of the severity of plaintiff's injuries. Schultz V. Third Ave. E. E. Co., 46 Superior 211. 4. Upon the trial of this action brought to recover damages for personal injuries alleged to have been occasioned by the defendant's negli- gence, evidence was given tending to show that the plaintiff, a man about forty years old, in the full vigor of health, was suddenly injured by the shock of a collision which occurred upon the defendant's railroad ; that besides many lesser injuries the accident produced a concussion of the spine, the result of which has been chronic inflammation of the membranes which envelop the spinal cord ; that the disease was a pro- gressive one ; that it had already largely im- paired his faculties, both mental and physical,, and that it would probably progress until paralysis and premature death ensued. Held, that a verdict in the plaintift's favor for $30,006 would not be set aside as excessive. — Supreme Ct., (2d Dept.,) Feb., 1881. Harrold v. New York Elevated E. E. Co., 24 Hun 184. 5. Inadequacy of damages is a suf- ficient ground for setting aside a verdict and granting a new trial. So — Held, where the plaintiff was seriously and permanently injured by the defendant's negligence, and a verdict for 1400 appeared to be unjust and to have been a compromise verdict, and possibly influenced by an error in the judge's charge. — Supreme Ct., (3d Dept^) May, 1879. Platz v. City of Cohoes, 8 Abb. N. Cas. 392. 6. When granted in ejectment. The Code of Civil Procedure has not altered the practice in relation to new trials in actions of ejectment ; an order may be made before judg- ment is perfected, that when the judgment is perfected, it be thereupon vacated, and a new trial orderedwithout further order of the court. —Com. Pleas, (Sp. T.,) May, 1881. Post v. Moran, 1 Civ. Pro. 222 ; S. C, 61 How. Pr. 122. 7. By the alteration of the provisions of law 206 NEW TRIAL, I., II.— NEW YORK OITY, I. in relation to granting orders for new trials in ejectment, as now found in ? 1525, it was not the intention of the legislature to change the practice as to when such orders might be made, but to fix with greater certainty the exact date from which the absolute right to a new trial runs, and not to exclude the defeated party from the advantages of anticipating the entry of judgment — retaining possession of the disputed premises, and preventing the issuing of an exe- cution to enforce the judgment. lb. 8. It was not the intention of the codifiers to alter the former practice in relation to ejectment, by inserting the words " and the judgment-roll is filed," in the provisions of the code, and these words were inserted in JJ 1524 and 1526 as a substitute for the previous provisions as to ■"docketing" the judgment, and were inserted in ? 1525 for the purpose of uniformity. lb. 9. The statute authorizing the vacating of the judgment and a new trial in ejectment, applies to ejectment tor non-payment of rent. — Supreme a., ( Ulster 1^. T.,) June, 1879. Keed v. Loucks, ■61 How. Pr. 434. II. The AppiiicATioN ; and How Disposed OF. lO Jurisdiction — proper place to -move. The Code of Civ. Pro., i 1002, re- quires that in a case not specified in the three preceding sections, the motion for a new trial must be heard and determined at Special Term, in the first instance. A motion on the ground of surprise and newly-discovered evidence, must, under the said section, be made at Special Term. The appearance of the parties before the trial judge, and the argument of the motion on the merits alone, are not acts which confer jurisdic- tion. If the question of jurisdiction is waived, it should appear by recitals in the order or in a stipulation to that eflfect. — Superior Q.., Feb., 1880. Newhall v. Appleton, 46 Superior 6. 11. The motion which Code of Civ. Pro., §999 authorizes the trial judge to entertain upon his minutes, is one to set aside the verdict and grant a, new trial ; but, where the complaint is dismissed upon the plaintiff's own showing, there is no verdict, although a jury may have been impaneled to try the issue. The remedy of the plaintiff' in such a case is either by motion at Special Term on a case to be made and settled, or by appeal to the General Term. — Superior Ct., [IVial T.,) Aug., 1881. Dusenbury V. Dusenbury, 1 Civ. Pro. 292 ; S. C, 61 How. Pr. 432. 12. Entry of order. As to what is a sufficient entry of an order granting a new trial, see Dart v. Gillies, 46 Superior 560. 13. Before -wlioni ne-w trial to be had. The reversal of a judgment entered upon the report of a referee and the granting of a new trial does not vacate the order of ref- erence ; and the new trial must be had before the same referee, unless otherwise specially pro- vided. — Ct. of App., June, 1880, Catlin v. Adi- i rondack Co., 81 N. Y. 379. As to Other modes of review, see Appeal ; Cektioeaei; Eekob; Exceptions. NEW YORK CITY. I. CoEPOBATE Powers. II. Local Improvements; and Assess- ments THEEEPOB. III. Municipal Opficees. li In general. 2. Decisions retelling to particular officers or boards. IV. CoEPOBATB Liabilities. 1. Upon contracts. 2. For xorongs. I. COEPOEATB PoWEES. 1. A lease of lands (the title to which the city of New York claims under Laws of 1839, ch. 246, and Laws of 1834, ch. 150,) purporting to be made by the "mayor, al- dermen, &c., acting by the commissioners of the sinking fund," as lessor, and which is signed by the comptroller with his name and official title, is improperly executed and voiS. — Superior Cl., Dec., 1880. Carleton v. Darcy, 46 Superior 484. 2. Ordinances and resolutions. Un- der the provisions of the charter of 1870 (Laws of 1870, ch. 137^ § 20,) declaring that no vote shall be taken in either board of the common council upon the passage of a resolution or or- dinance contemplating a specific improvement, or laying a tax or assessment until after notice shall be published at least three days, each board, separate and independent of the other, must cause notice of the introduction of a reso- lution into its own body to be published for three days before final action thereon ; a publi- cation by one board will not suffice. — Ct. of App., Sept., 1880. Matter of De Pierris, 82 N. Y. 243. 3. Regulation of piers and wharves. N. Y. Laws of 1875, ch. 249, 2 1, provides that it shall be lawful for the owner or lessee of a pier or bulkhead in the city of New York to erect and maintain sheds upon it, "provided they shall have obtained from the department of docks, in said city, -a, license or authority to erect or maintain the same, and subject to the conditions and restricJions contained in such license or authority." Held, that the license or authority required by the act must be in writing. —Supreme Ct., [let Dept.,) Nov., 1880. People V. Macy, 22 Hun 577. 4. The right of the city to resume posses- sion of piers leased, what is sufficient evidence of its having done so and the effect of a failure to give notice to a lessee, as required by the lease, determined. — Supreme Ct., ( 1st Dept.,) Jan., 1881. Christie v. Parker, 23 Hun 661. ~ 5. Protection of harbor. In an action to recover a penalty for illegal dumping in the harbor, the intent of the defendant is a substan- tial fact and must be shown. (Laws of 1857, ch. 671, I 7, as amended by Laws of 1876, ch.414.) —Suprenus a., {1st Dept ,) Dec, 1880. Commr's. of Pilots V. Pidgeon, 23 Hun 346. NEW YORK CITY, II. 207 II. Local Improvements ; and Assessments THEEEEOB. 6. Interpreting the statutes. The •effect of the passage of Laws of 1871, ch. 574, ^ 5, upon irregular assessments for local im- provements, determined. — Supreme Q.., (ist Dept.,) Dee., 1880. Matter of Metropolitan Gas Light Co., 23 Hun 327. 7. "What is a taking' of laud. An award by commissioners for land not required for the street, but which is a part of a lot, a portion of which was required, and which the commissioners deemed it expedient to include in their estimate and assessment, and the ac- ceptance of such award, operate as a convey- ance of the land to, and vest the title in, the ■corporation of the city. — Superior Ct., June, 1880. Sherman u. Mayor, &c., of New York, 46 Superior 310. 8. What property may be assessed. Where a provision in an act incorporating a charitable institution in the city of New York ■exempted its real estate from taxation — Held, that such real estate was not thereby exempted from an assessment for a local improvement; ithat the assessment was not taxation within the meaning of the act. — Ct. of App., Feb., 1881. Eoosevelt Hospital v. Mayor, &c., of New York, ■84 N. Y. 108. 9. Notice to land-O'wner. The power given by the city charter of 1870 (Laws of 1870, ch. 137,) to the department of public works, to order the construction of sewers, and to carry on the work, was not divested by the ■ charter of 1873. {Laws of 1873, ch. 335.)— O!. ■o/ App., April, 1880. Matter of De Peyster, 80 N. Y. 565; affirming 18 Hun 445. 10. An assessment for the expenses of con- •structing a sewer is not invalid, because of emission to give to the owner of lots assessed, a personal notice that an assessment is to be imposed. The legislature may prescribe what the notice shall be, and where provision has ■been made for notice, before the completion of the assessment, by publication for objections to he presented within a time specified, and this has been complied with it, is sufficient. lb. 11. Consent of land-owner. The power ■conferred upon the commissioners of Central Park by the act of 1867 (Laws of 1867, ch. 697, I 1,) to change the grade of any of the streets within a district therein specified, was not sub- ject to, or limited by, the provision of the act •of 1852 (Laws of 1852, ch. 52, ? 2,) prohibiting the common council from changing the grade of streets without the written consent of the •owners of two-thirds, in lineal feet, of the ad- joining lands. Therefore — Held, that an as- sessment for a change in the grade of a street, made by said commissioners under said act of 1867, was not invalidated because of failure to obtain such consent. — Ct. of App., Jan., 1881. Matter of Walter, 83 N. Y. 538 ; affirming, 21 Hun 533. la. Necessity of compensation tc^ •O'wner. The commissioner of public works run an underground drain through lots of the petitioners, which had already been thoroughly ■drained by means of ordinary sewers, for which ^n assessment had been duly paid. Held, that -an assessment for such drain was properly va- •cated, the appropriation of petitioner's lots therefor without compensation being illegal. — Supreme Ct., (Isi I>ept.,) Oct., 1880. Matter of Church of the Holy Sepulchre, 61 How. Pr. 315. 13. Letting out the •work— necessity of a contract. Under and by virtue of the provision of the charter of 1873, (Laws of 1873, ch. 335, ^ 91,) declaring that all contracts for work or ^iipplies shall be made by the appropri- ate heads of departments, and that all work save as excepted "shall be done by contract," etc., the contract system provided for by the same section of the charter was made applicable to work thereafter inaugurated by the depart- ment of public works, including works ordered by that department in the exercise of powers transferred to it from the department of public parks and the commissioners of Central Park. —Ct. of App., Sept., 1880. Matter of Bobbins, . 82 N. Y. 131 ; reversing 20 Hun 530. 14. The act of 1873, (Laws of 1873, ch. 528,) requiring the department of public works to es- tablish, lay out, grade and improve the eastern boulevard, does not except the work so author- ized to be done from said provisions of the char- ter ; but, on the contrary, by declaring applica- ble to the improvement, all' existing laws in relation to street improvements, expressly sub- jects it to that provision. Therefore — Held, that the doing of the work without a contract, made as prescribed by said chapter, was a substantial error, which invalidated an assessment therefor. lb. ' 15. Prior to the passage of the city charter of 1873, (Laws of 1873, ch. 335,) under the pro- visions of the act of 1871, (Laws of 1871, ch. 226, ^ 1,) changing the gradeof a portion of Ninth avenue, and directing the commissioner of pub- lic works to proceed forthwith in such manner as should be deemed necessary and proper to regulate and grade said avenue, according to the grade so fixed, certain maps were filed ; one, of the streets intersecting Ninth avenue, the grade of which by said act of 1871 (?§ 2-4) the said commissioner was authorized to change so as to conform to the grade of Eighth avenue, on which map new grades of Ninth avenue ap- peared; another, a map or profile of the new grade of Ninth avenue. No work, however, had been done upon said avenue, in changing the grade, prior to the passage of the charter, and no contract had been made for such work. Held, 1. That the work was not " in progress " within the meaning of the exception of such works in the provision of said charter, (? 91), requiring contracts for work not therein other- wise provided for, to be founded on sealed pro- posals and let to the lowest bidder; and, the work having been done without a contract let as prescribed, that an assessment therefor was invalid. 2. That the work could not be considered "in progress" because other streets referred to in the act of 1871 had been actually graded or the work thereon was in progress when the charter went into effect. 3. That the power of the commissioner of public works, under said aftt of 1871, to do the work unrestricted by the contract system, was not preserved by the provision of said charter (? 73) vesting in the department of public works created by the charter the powers and functions previously possessed by the depart- 208 NEW YORK CITY, II. ment of public parks or the department of pub- lic works.— Cfc of Aff., Jan., 1880. Matter of "Weil, 83 N. Y. 543. 16. Advertising for proposals- awarding' the contract. The intent of the provision of the city charter of 1873, (Laws of 1873, ch. 335, 1 91,) requiring contracts for works and supplies to be founded on sealed proposals and given to the lowest bidders, was to reqjiire a sub- mission for competition of every important item of a contemplated work. — Ct. of App., March, 1881. Matter of Merriam, 84 N. Y. 596. 17. The published notice inviting bids for a local improvement in the city of New York contained a provision that the bidders should state in their proposals the price per cubic yard for rock excavations, and one-fourth the price bid would be allowed as the price for earth ex- cavations ; the notice contained the estimated quantities of work to be done. HM, that in the absence of allegations or proof that the pro- vision was fraudulently inserted or that it in fact did any harm, this was not a violation of the provisions of the charter of 1870, (Laws of 1870, ch. 137, ? 104,) requiring contracts for such work to be let to the lowest bidder. — Ct. of App., Jan., 1881. Matter of Marsh, 83 N. Y. 431 ; affirming 21 Hun 582. 18. It appeared that the bid accepted, tested by the actual quantities as found in the prosecu- tion of the work and as paid for, was the lowest. Held, that the error, if any, in not awarding the contract to the apparent lowest bidder was not a substantial one within the meaning of the statute of 1874, relating to the vacating of assess- ments (Laws of 1874, chs. 312, 313) ; and that one whose lands were assessed for the improve- ment was not aggrieved thereby ; and, therefore, was not entitled to have the assessment vacated, lb. 10. A bid a little lower than the one accepted, tested by the estimated quantities, was rejected because of failure to conform to this specifica- tion, the bid for earth excavation being slightly in excess of one-fourth of that paid for rock excavation. Hdd, that the commissioner of public works having authority to insert the specification could require a literal and exact compliance therewith, and could reject as in- formal all bids not so complying, and a letting to the lowest bidder who did so comply, was valid, lb. 20. On December 12th, 1871,the commissioners of Central Park passed a resolution authorizing their treasurer to carry into execution, by , contract or otherwise, the regulating, grading, surveying, paving and improving of a certain portion of One Hundred and Fifty-fifth street. Thereafter, and prior to June 17tfa, 1872, the pro- posal of one C. for the regulating and grading of the said street was accepted, and a formal contract was directed to be prepared. On that day, the department of public works assumed, under ch. 872 of 1872, exclusive control over the said work, and thereafter, and on July 12, the commissioner of public works awarded the contract to C, deeming it his duty to do so, be- cause his bid had already been accepted by the commissioners of the Central Park. On an application to vacate an assessment laid to cover the cost of the improvement, on the ground that the commissioners of Central Park had no authority to delegate to their treasurer the discretion confided to them by the legislature — Held, 1. That whether or not their action in so delegating their power to their treasurer wa» unauthorized, need not be considered, as the contract was in fact made, not by him, but by the commissioner of public works. 2. That the fact that the latter entered into the contract because he believed that C. was entitled to it by virtue of the previous action of the commissioners, was immaterial, as the validity of his act was in no way dependent upon his intentions or belief. — Supreme Ct., {1st Dept.,) Jime, 1880. Matter of Fuller, 21 Hun 497. ' 21. Suflaciency and validity of the contract. In the advertisement for proposals for constructing a sewer a price was fixed to be allowed for rock excavation, and the price so fixed was included in the contract, thus with- drawing the item from competition. Hdd, that this was not a compliance with the provision of the statute requiring the work to be let by con- tract, after advertisement, to the lowest bidder ; and that the contract and an assessment for the work was illegal and void. — Ct., of App,, Sept., 1880. Matter of Manhattan Sayings Inst., 82 N. Y. 142. 22. The advertisement and the contract re- quired the purchase by the contractor from the city of sewer and culvert pipe at specified prices ; said pipe had been purchased by the city under contract let at a public bidding and was furnished by the city at the contract price. Held, that this provision was proper and lawful. Matter of Merriam, supra. 23. By the contract the right was reserved, to the commissioner of public works to increase or diminish the gross length of the sewers, cul- ^ verts and drains, the number of basins or piles or the amount of foundation plank, or any other item. Seld, that in the absence of proof of fraud, this did not impair the validity of the contract. lb. 24. The valuation. In an action to va- cate an assessment on property of a charitable institution imposed in 1873, it appeared that the land had been assessed for the purposes of tax- ation in 1866, at which time it belonged to plaintiff. Held, that this was a suffibient basis for an assessment within the provision of the act of 1840 (Laws of 1840, ch. 326, g 7,) pro- hibiting an assessment for a local improvement exceeding half the value of the property as valued by the general tax assessing officers. — Ct. of App., Feb., 1881. Eoosevelt Hospital v. Mayor, &c., of New York, 84 N. Y. 108. 25. An assessment for paving and grading a street was made prior to January, 1876. A strip of land one hundred feet wide, marked on the map annexed to the assessment as avenue B, crossing the street in question at right an- gles, was omitted from the assessment. Said avenue was closed by statute in 1875. (Laws of 1875, ch. 49.) The said strip, prior to the as- sessment, was not designated on the tax map of the city and no valuation thereof appeared •upon the tax assessment-rolls. It was divided between the adjoining lots and assessed upon the tax-roll for 1876, which assessment was made prior to January Ist, but did not beiome eflfectual until May 1st of that year. (Laws of 1859, ch. 302, ? 8.) In proceedings to vacate the assessment — Held, that as there was no law- ful valuation of said strip of land when the board of assessors acted, they had no power to NEW YORK CITY, II. 209 make such valuation or to assess it ; that they were under no legal obligatioii to suspend their proceedings until the new assessment- roll be- came operative ; and that, therefore, the omis- sion of said strip of land did not invalidate the assessment. — OS. 0/ App., Oct., 1880. Matter of Churchill, 82 N. Y. 288. 26. Necessity of appearing and ob- jecting before the commissioners. Objections and affidavits in opposition to the report of the commissioners of estimate and assessment, which were not presented to them within the time or in the manner required by the statute, cannot be received upon a motion to confirm their report, where no sufficient excuse is alleged for the omission. — Supreme Ct., {Sp. T.,) Nov., 1880. Matter of One Hundred and Thirty-eighth Street, 60 How. Pr. 290. 27. Thereport of the commissioners will be regarded with the same or even greater consideration than the verdict of a jury on the question of the value of the property taken or amount assessed, and unless some wrong princi- ple has been adopted in estimating awards granted or assessments imposed, the report will be confirmed. lb. 28. Upon the coming in of such report the court will examine the testimony submitted to the commissioners as to the value of property to be taken for the street, and if it appears that the amounts awarded are greatly in excess of the real value of the property, the report will not be confirmed. — Supreme Ct., {Sp. T.,) Jan., 1881. Matter of Sixty-seventh Street, 60 How. Pr. 264. 29. Damages to land-owners— rights of rival claimants. When an award has been made for damages to premises by reason of a change of grade of a street, and the right of the party named in the award is disputed, it is the duty of the city to pay the amount of the award to the city chamberlain, to be disposed ot as the Superior Court shall direct. (Laws of 1867, ch. 697, ? 3 ; Laws of 1852, ch. 52, U 3, 4.) — Ot. of App., Nov., 1880. Hatch u. Mayor, &c., of New York, "" "''' "'^ -"° - - ~ "^ Superior 599. 82 N. Y. 436 ; reversing 45 30. The city, after knowledge that there is a dispute as to the title to the award, cannot pay to the person named therein, or by his direction or assent, and use a payment thus made as a de- fence against the true owner of the award. lb. 31. Where, therefore, an award was made to B., to which plaintiff was entitled, and the city, after knowledge that the title of B. was disputed, paid part to the city chamberlain and the resi- due, with the assent of B., in satisfaction of cer- tain local assessments upon the premises — Seld, that for the portion paid to the city chamber- lain defendant was not liable, but that an action was maintainable to recover the residue; and that the payments so made with the assent of B. did not constitute a defence. lb. 32. The assessments so paid were imposed upon the premises for local improvements. It did not appear against whom they were assessed, or that the premises were not of sufficient value for the assessments to be realized therefrom, or that the person, if any, against whom they were assessed was not liable and able to pay. Held, that the city was not entitled to a stoppage of the money applied by. it to the payment of the assessments. lb. 33. Where, in proceedings to acquire lands for a street, an award is made of the full value of the lands to " unknown owners," and it ap- pears by the commissioners' report that the award was intended for the benefit of all parties interested, the owner of the fee is not entitled to the whole award, where a perpetual easement in the land is vested in another person, but the latter is entitled to the value of his easement. — Ot. of App., Sept., 1880. Matter of Eleventh Ave., 81 N. Y. 436. 34. Revie-w of assessments, gener- ally. Where the sidewalks of a street have once been paved, this does not make the pavement of the carriageway where no pavement has ever been laid, a " repavement," within the meaning of the act of 1875 (Laws of 1874, ch. 476,) providing a uniform system for the repavepaent of streets in the city of New York. — Ol. of App., Jvim, 1880. Matter of Grube, 81 N. Y. 139. 35. The fact, therefore, that the sidewalks of a street have been paved and the expense as- sessed upon the property-owners, does not invali- date an assessment upon the property-owners for paving the street. lb. 36. The common council, by ordinance, di- rected a street to be graded, and that the expense be assessed on the property benefited. On mo- tion to vacate the assessment, the ordinance was claimed to be void because it purported to direct a tax regardless of the question whether the bene- fit equaled the expenditure. Held, untenable ; that in the absence of any allegation or proof to the contrary, it was to be assumed that the legis- lative judgment was that the benefit would be as great as the cost. — Ot. of App., June, 1880. Mat- ter of Eoberts, 81 N. Y. 62. 37. The report of the board of assessors re- cited that they were directed by the ordinance "to make a just and equitable assessment of the expense " among the owners, etc., "in proportion to the advantage which each shall be deemed to acquire ; " it then declared (hat the board had " made a just and equitable assessment thereof," following which was the assessment list. The assessment was claimed to be void because the assessors did not state in terms in their report that they had assessed those benefited, and in proportion to benefit. Held, untenable ; that in the absence of an allegation that the assessors had varied from the legal rule, and in a proceed- ing to vacate the asesssment, it could not be held void because of the absence from the report of a mere form of words. lb. 38. The assessment in question was for the construction of a sewer. It appeared that a gen- eral plan of sewerage for the district had been adopted and a map had been filed as prescribed by the act of 1865 (Laws of 1865, ch. 381, ? 2), upon which map the sewer in question did not appear. Held, that this alone did not vitiate the assessment ; that when the needs of a district or any part of it, after a plan had been so adopted, required another sewer,the construction of it was authorized by the provision of said act (§ 4) per- mitting " such subsequent modifications as may become necessary in consequence of alterations made in the grade of any street or avenue, or part thereof, in said district or otherwise ;" that to invalidate the assessment it must be shown, either that the sewer did not accord in its cha- racteristics with the general plan, or that there had been no general plan devised, mapped and filed.— a of App,., Feb., 1881. Boosevelt Hos- pital V. Mayor, &c. of New York, 84 N. Y. 108. 30. Powers and duties of board of O 210 NEW YORK CITY, II. revision and correction. The corporation of the city has power to grade a street at its own expense, and after the work is done to assess the costs and charges upon the lands benefited, and to collect the same, as in the case of an estimate and assessment before the work is begun. Where such an improvement is thus ordered to be done by the common council, it is not re- quired that there should be an estimate and as- sessment nntil the work is done. The board of assessors having, therefore, authority to make an assessment in such case, the board of revision and correction has authority to confirm an esti- mate and assessment made by the former board, lb. 40. It is not necessary that there should be any action of the common council confirming the estimate and assessment to give it validity ; the confirmation must be by that particular member of the corporate body having the lawful power to revise and correct or confirm. The authority t OFFICERS. As to officers of Oorporationt, generally, see Corporations, VI. As to County, Town and Municipal officers, see CoTOTiES ; Municipal Corporations, IV. ; Towns. As to Compelling or Restraining official action, see Injunction, II. ; Mandamus, H. ORDERS. Motions and Orders, 7-10. ORDINANCES. Municipal Corporations, 4; New York City, 2. OYER AND TERMINER. Courts, IV. PARENT AND CHILD. 1. Duty to support child. It is the pri- mary duty of a parent, whether father or mother, if of sufficient ability, to support his or her minor child. Where the parent of a minor is also guardian, the circumstances of the parent, as well as the amount of the ward's estate, may be taken into consideration in determining the lia- bility of the former to support the latter. — Westchester Co. Surr. Ct., March, 1880. Voessing V. Voessing, 4 Eedf. 360. 2. Liability for torts or negligence of child. A parent is not liable for the willful trespasses or negligence of an infant child. — Com. Pleas, (Sp. T..) March, 1881. Schlossberg «. Lahr, 60 How. Pr. 450. As to the rights of Infants, generally, irre- spective of the relation with the parent, see Guardian and Ward ; Infants. PARTIAL LOSS. Insurance, IV. PARTIES. [Includes only Qeneral rulet relative to parties in civil actions, at law or in equity. Such rules as are peculiar to any particular cause of action, remedy or defence, whicli is the subject of a separate title in the work, will be found under that title J 1. Who are not necessary parties. In an action against trustees of a savings bank for negligence in discharge of their duties, all of the trustees need not be joined as defendants. — a. of App., Sept., 1880. Hun v. Cary, 82 N. Y. 65. 2. In an action against joint tort-feasors, there is no defect of parties defendant, though others alleged to have been engaged in the scheme are PARTIES— PARTITION. 217 not joined, because these parties were joint tort- feasors with defendant, and severally, as well as jointly, liable to plaintiff; and it is, therefore, at his option to sue any one or all ; and the fact that equitable relief is demanded does not affect the question as to parties. — Supreme Ct., (1st DeptSp. T.,) June, 1881. Pierson v. McCurdy, €1 How. Pr. 134. 3. Bringing in new parties. Rights of parties ne-wly brought in. After an action had been referred, the evidence taken and the case finally submitted to the referee for his decision on the merits, the court granted an order bringing in other parties as defendants, and directing that the cause remain and continue for trial before the referee the same as if the parties added had been parties from the begin- ning of the action, they to have the privilege, however, of cross-examining the witnesses pro- duced and examined on the trial. It did not appear that the case was one which could have been referred without consent. Sdd, that con- ceding the court had power to bring in the new parties, the residue of the order was erroneous, as the court could not compel them to accept the referee or the evidence taken ; that they had at least; the right to be heard as to the appoint- ment of a referee, and the right to be present when the witnesses were sworn and examined. —a. of App., April, 1880. Wood v. Swift, 81 N. Y. 31. 4. The action was to determine the title of conflicting claimants to a policy of life insur- ance ; the insurance company was a party de- fendant ; one of the parties so brought in had commenced a suit against said company ; the order restrained the prosecution of said action. Held, error ; that if for any reason he ought not to proceed, the company could have his proceed- ings stayed in that action. lb. 5. Substitution of new plaintiff. Af- ter the commencement of this action, plaintiff assigned to JR. and A. the claim upon which it was brought ; thereafter plaintiff was adjudged a bankrupt and an assignee of his property ap- pointed ; judgment was subsequently recovered, and after it was perfected, plaintiff died intes- tate, leaving no property, real or personal.^ No administrator of his estate has been appointed. Upon notice to defendants' attorneys and to the widow and next of kin of the decedent, a motion was made on behalf of B. and A. that they be substituted as plaintiffi, which was granted ; de- fendants appealed. On argument at General Term the respondents produced and filed a stip- ulation of the assignee in bankruptcy, waiving notice of motion and all objection to the order. Held, that the order was properly affirmed ; that the court had a right to proceed without the_ ap- pointment of an administrator of the original plaintiff; also that the stipulation was properly received and considered by the General Term. —Ct. of App., Oct., 1880. Schell u. Devlin, 82 N. Y. 333. PARTITION. 1. Jurisdiction of proceedings under the Revised Statutes. In proceedings for partition of lands by petition under the Revised Statutes, jurisdiction was acquired by the ap- pointment of a guardian in the first instance, upon notice to the infant or his general guardian. — Ct. of App., March, 1881. Ingersoll v. Man- gam, 1 Civ. Pro. 151. 2. When an action for partition •will lie. When a widow is in possession of lands, whereof her husband died seized, claiming to be entitled thereto by virtue of a devise thereof to her contained in his last will and testament, one of liis heirs-at-law may maintain an action against her and his co-heirs, under ch. 238 of 1853, to procure a judgment declaring the al- leged devise to be invalid, and directing a par- tition to be made of the said lands. — Sumreme Ct., [Uh Dept.,) Jan., 18S1. Wager v. Wager, 23 Hun 439 ; Ward v. Ward, Id. 431. 3. Quare, as to whether, in such a case, the widow could be required by the judgment to surrender possession of the premises, or whether the parties entitled thereto would be left to bring another action for their recovery. Wager v. Wager, m,pra. 4. The act cannot be held unconstitutional on the ground that it allows the question of title to be tried in an action for partition, as a party thereto may, if he so desire, have the issues arising therein settled and tried by a jury on making a timely demand therefor. Ward v. Ward, supra. 5. Who may maintain it. A cestui ji«e trust cannot maintain an action for the partition of real estate, and a purchaser at a sale had un- der a judgment therein, cannot be made to com- plete his purchase, even though the trustees were made parties defendant, and allowed the judgment to be taken by default. — Supreme Ct., \,Ut Dept.,) Nov., 1880. Harris a. Larkins, 22 Hun 488. 6. Reference— trial by jury. Notwith- standing there are, in an action for partition, a large number of defendants and many separate appearances, and the case presents four distinct issues of fact, two of which affect distinct parts of the property, and the other two affect undi- vided shares in the whole of the remainder, and the case can therefore be better tried by refer- ence than in any other way, yet, if any of the parties object to a reference, the case must go to a jury.— Supreme Ct., (1st Dept. Sp. T.,) July, 1881. Cassedy v. Wallace, 61 How. Pr. 240. 7. But a compulsory reference may be ordered except as to the issues raised by claim of owner- ship of two pieces of the property, and the action may be severed so as to try separately, before a referee, the issues as to the remainder of the property, the title to which is not in dispute. lb. 8. Receiver of rents and profits. The plaintiff, a receiver in proceedings supplement- ary to execution, to whom the judgment debtor had conveyed his interest in certain real estate devised by the will of his father to executors, in trust for specified purposes, commenced this ac- tion for partition of the premises in question, and was appointed receiver of the rents, &c., therein. It appeared that the said executors were wholly responsible; that they had duly accounted before the surrogate ; that two years had elapsed since the commencement of this action and a hearing thereof had been had ; and that increased expense would be caused by such additional administration of the trust estate. Held, that the order appointing plaintiff re- ceiver should be reversed. — Superior Ct., June, 1880. Miller v. Levy, 46 Superior 207. 218 PAETITION— PARTNERSHIP, I. 9. Where one of the parties in interest in a partition suit has in his possession a portion of the estate, and has been in the habit of collecting the rents, as he alleges, for the protection of the inconae from waste, a receiver should not be ap- Eointed upon an affidavit upon information and elief, that such party is of little or no responsi- bility.— &preme Ct., [Ist Bept.,) May, 1881. Darcin v. Wells, 61 How. Pr. 259. 10. In this action, brought to obtain a parti- tion of certain reai estate, a, receiver pendente lite was appointed, with direction to collect the rents and divide the net proceeds thereof between the plaintiff and the defendant. Thereafter one Man, having recovered a judgment against the defendant upon which an execution had been issued and returned unsatisfied, applied for an order, directing the receiver to pay the amount due on the judgment to him, from the defend- ant's share of the rents. Held, that the applica- tion was properly denied. — Supreme Cl., {2d Dept.,) Sept., 1880. Verplanck v. Verplanck, 22 Hun 104. 11. SemhU, that the remedy of the judgment creditor was to come into the action and press it to a judgment, after which his claim might be paid from the proceeds of a sale of the premises, or if an actual partition was decreed the share set off to the judgment debtor might be sold. lb. 12. Judgment. Sale. Rights of pur- chaser. M. died seized of certain premises, leaving a widow, four daughters and several grandchildren, the children of two of the daugh- ters, him surviving. He left a will, by the first clause of which he gave his widow the use of all his real and personal estate during her life. By the second clause he gave the income arising from his estate to his four daughters, "to be divided between them share and share alike, during their and each of their respective natural life, remainder to their respective children," their heirs, &c. An action for the partition of said premises was brought by one of the daugh- ters, the complaint in which alleged the second clause of the will to be void, and that the daugh- ters took a fee, subject to the life estate of their mother. The judgment in said action directed a sale, taking no notice of the rights of unborn children. Three of the daughters were living at the time of sale. The purchaser at such sale having refused to complete his purchase, on mo- tion to compel him so to do — Held, that said judgment did not bar the future contingent in- terests of such unborn issue ; and that the pur- chaser could not be compelled to accept the de- fective title.— a. of App., March, 1880. ' Mon- arque v. Monarque, 80 N. Y. 320 ;S. C, 8 Abb. N. Cas. 102 ; reoermtg 19 Hun 333. 13. A judgment and sale in partition only concludes contingent interests of persons not in being, when the judgment provides for and pro- tects such interests, by substituting the fund de- rived from the sale of the land in place of it, and preserving the fund to the extent necessary to satisfy such interests, lb. 14. Prior to the bringing of the partition suit an action was brought by one of the daughters to obtain a construction of the will, in which action the widow, the other daughters and the grand- children of the testator were joined as defend- ants. The adult defendants did not answer ; a general answer was put in by the guardian ad litem of the infants, and a judgment was taken, practically by consent, declaring the life estate in the widow valid and the subsequent devises void, and adjudging the fee, after the death of the widow, to vest in the daughters. This judg- ment was set up in the complaint in the parti- tion suit. Held, that conceding said judgment was conclusive as to the rights of the parties thereto — as to which qu(Bre — it did not bind the contingent interests of such unborn issue. lb. 15. It seems that the case was not a proper one for bringing an action for the construction of the will, as there was no trust or other ele- ment to justify invoking the jurisdiction of the court for that purpose, lb. 16. Investment of proceeds of sale. When a bond and mortgage of an attorney of one of the parties in a partition suit was de- posited in good faith by the referee to sell, a» part of a fund directed to be deposited with and invested by the county treasurer, in trust, and the cestuis que trust, with full knowledge, have for years received the income, they cannot repu- diate the investment and impose it upon the referee. — Ct. of App., Jan. 1881. Wiggins ». How- ward, 83 N. Y. 613 ; affirming, 22 Hun 126. 17. Actual partition. Where lands are assigned in partition, and are subsequently con- veyed by the persons to whom assigned with warranty, they ratify and affirm the partition, and are estopped from questioning its validity. — Gl. of App., March, 1881. Bergen v. Wyckoff, 1 Civ. Pro. 1. PARTNERSHIP. I. The Eelation ; and how Constittjtedv II. Power op One Partner to Bind an- other, OR THE Firm. III. SiHTS Between Partners. Accounting. IV. Eights op Creditors. V. Dissolution. I. T«e Eblation ; and how Constituted. 1. "What constitutes a partnership. As to what agreement will constitute a partner- ship as to third parties, see Curry v. Fowler, 46 Superior 195. 2. When a voluntary association is not a partnership, see Lafond v. Deems, 81 N. Y. 507. 3. Effect of agreements to share prof- its and losses. The participation in the prof- its of a business does not in all cases make the participant a partner as to third persons ; to have that effect the participation must be in the profits as such, under circumstances which give him a proprietary right as principal trader in such profits before division. — Ct. of App., Sept., 1880. Burnett v. Snyder, 81 N. Y. 550. 4. A contract between one of two or more partners and a third person, with the knowledge and assent of t^he other partners, by which the third person is to share in the profits and losses, in the firm business, of the partner with whom he contracts, does not constitute such a pai-ticipa- tion in the profits as will make the third person a partnei-, or liable for the partnership debts. lb. PARTNERSHIP, I., II. 21 ^ 5. Rights of partners inter sese. The fact that a lease of premises, used by a firm for copartnership purposes, is to one of the copart- ners, does not authorize him to take a renewal lease in his own name and for his own benefit ; and a renewal will inure to the benefit of the firm.— Of. of App., March, 1881. Mitchell v. Bead, 84 N. Y. 556. 6. An unfiled- chattel mortgage on property subsequently brought by the mortgagor into a firm of which he becomes a member, as his pro- portion of the capital, is not invalid as to the other partners by reason of its non-filing. — Supe^ rior Ct., Feb., 1880. Bust d. Hansell, 46 Supe- rior 22. 7. Interpretation of partnership ar- ticles. In an action for an accounting, brought by the executor of a deceased partner against the survivor, it appeared that the firm was insol- vent. By the articles of copartnership it ap- peared that the deceased partner had contribu- ted stock estimated to be of the value of $15,775.- 48, and the other partner, stock estimated to be of the value of $3363.77. All profits were, by the terms of the copartnership agreement, to be equally divided, and " all losses happening to the said firm, whether from bad debts, deprecia- tion of goods or any other cause or accident, and all expenses of the said business," were to be borne equally. Held, that the plaintiflfwas en- titled to recover from the surviving partner one- half of the sum by which the estimated value of the stock contributed by his testator exceeded that of the stock contributed by the defendant. — Si^preme Ct., {4th Dept.,) Jan., 1881. Jones v. Butler, 23 Hun 367. 8. The flrm name— using fictitious firm name. The provisions of the act of 1833 (Laws of 1833, ch. 281,) in reference to transacting business under fictitious names, which prohibits a person from transacting busi- ness in the name of a partner not interested in the business, and which requires that where " & Co." is used it shall represent an actual partner, does not apply to or include the use of the real name of an actual partner, although such a part- ner is under a disability at the time. — Ct. of App., ' Dee., 1880. Zimmerman v. Erhard, 83 N. Y. 74; S. C, 60How. I'r.l63. 9. Where, therefore, a firm is composed of a husband and wife, the latter being represented by the " & Co." in the firm name, in the absence of any intention to impose upon the public by obtaining undue credit, and conceding that a married woman cannot be a partner of her hus- band, this is not a violation of the statute. lb. 10. As to the rights of the successors in busi- ness of a dissolved partnership to the use of the old firm name, trade-marks and labels, see Haz- ard V. Caswell, 46 Superior, 559. II. Power of One Partner to Bind An- other, OR THE Firm. 11. By making or indorsing negotia- ble paper. The plaintifi", a bank, held a pro- tested check drawn by one C, and indorsed for his accommodation by one V. The bank, know- ing thatV. was an accommodation indorser, having pressed him and C. for payment, the lat- ter was induced to give his firm note to V., who indorsed it, and with it took up the protested check from the bank, paying to it asmall balance due on the latter in cash. U., C.'s partner, knew nothing of the giving of the firm note, and never assented thereto. In an action upon the note, — ■ Held, that the transaction itself was notice to the bank, and put it upon inquiry as to whether Uv had assented to the giving of the firm note ; and that, as he had not assented to it, he was not lia- ble thereon.— Supreme Ct., (ist Dept.,] May, I88O4 Union National Bank of Eahway v. UuderhilL 21 Hun 178. 12. The firm of C. F. P. & Co. made their promissory note payable to their order, and in- dorsed the same. L., one of the firm, and also- a member of the firm of J. S.'s Sons, indorsed his own name and the name of the latter firni thereon, without their knowledge or consent, and delivered it to a firm to whom he was indi- vidually indebted, to be applied upon the debt, who transferred the note to plaintiff' for value, before maturity, plaintiff" having no notice of the circumstances attending the execution of the note. In an action against the members of the firm of J. S.'s Sons upon the indorsement — Held, that the defendants were liable. — Ct. of App.y Oct., 1880. Atlantic State Bank v. Savery, 82: N. Y. 291 ; affirming 18 Hun 36. 13. By fraudulent representations. As so the liability of one partner for the fraudu- lent representations of his copartner, and whea his liability therefor is not affected by a dis- charge in bankruptcy, see Braduer v. Strang, 23» Hun 445. 14. Ratification of partner's act. Where one partner, without the knowledge or consent of his copartner, gives to H. his owa notes, with the firm's name indorsed thereon by him, in payment of 'his individual debt, which is secured by a chattel mortgage made by hinv on his individual property, which property, sub- ject to the mortgage, he had brought into the copartnership as his proportion of the capital, H. at the same time surrendering his chattel' mortgage, and thereafter there is a transaction between the firm and H. as to some wire gauze,, and thereafter the firm makes an assignment to H. for the benefit of creditors, and in the schedule of liabilities annexed thereto states- its indebtedness to H. to be $3000, and upon the evidence it appeared that there could not be so large a claim in favor of H., except upon the basis that the firm acknowledged its liability on the said indorsement ; and it also appeared that upon that basis the claim in favor of H. would' be much larger, unless the firm had received a. credit in respect of the wire gauze ; and H. tes- tified as follows: "Q. in Ex. 1," (being the schedule of indebtedness), "The firm's indebted- ness to you is stated at $3000 ; state how that amount was arrived at ? Ans. They owed me $6000, and after deducting the wire gauze, they agreed that the balance should be $3000 j I ac- cepted the assignment upon the schedule of liabilities handed me by Eancke & Bust, which included my debt of $3000"— HeW, a ratifica- tion of the act of the partner who gave the firm, indorsement for his individual debt, and an adoption by the firm of the original claim against the individual partner as a firm obliga- tion.— /Superior Ct., Feb., 1880. Bust v. Hauselt^ 46 Superior 22. 15. When one partner may ratify a chattel mortgage given by his copartner, see Kennedy ■0. Nat. Union Bank of Watertown, 23 Hun 494. 220 PAETNERSHIP, III., IV., V. III. Suits between Paetners. ING. ACCOTJNT- 16. Suits to compel accounting. An accounting may be had for the purpose of ad- justing the accounts of a copartnership, as be- tween the partners, though the complaint fails to show whether there are outstanding claims ■due to or from the firm, or whether there/ is jjroperty owned by the firm. — Superior Ct., April, 1880. Keuhnemundt v. Haar, 46 Superior 188. VJ. In an action for such an accounting, where the complaint shows that an assignment for the benefit of creditors has been made by the firm, the complaint will be held insufBcient on ■demurrer. The cause of action for such sums as may have been withdrawn in excess by any ■of the partners, is in the firm, and passes as an asset by the assignment, lb. 18. M., plaintiff's testator, and defendant ■were formerly partners carrying on a hotel, the leases for which expired at the time fixed for the termination of the partnership. Prior to ithat time the defendant, without the assent or knowledge of his partner, procured new leases in his own name for terms beginning at the ter- mination of the partnership, which, upon dis- covery of the fact by M., he claimed to hold ■exclusively for his own benefit. This action was brought to have M.'s interest in the leases de- ■clared and adjudged. It appeared that during the pendency of the action, M. brought another action for a dissolution of the partnership and sale of its effects. The judgment therein di- rected, among other things, a sale of the furni- ture and fixtures belonging to the firm, leaving the question as to the disposition of the leases ■to be determined in this action. Sale was made accordingly, the property bid oflf by defendant, and M. received his proportion of the purchase jprice. Upon the final trial herein, which did not occur until after the expiration of the new leases of which defendant had had the benefit, plaintiff was allowed to prove, as a basis for computing damages, what the furniture, good- •will and leases, if put up for sale together, would have brought, the partners each having a right ito bid at the sale. Held, no error. — Ot. of App., March, 1881. Mitchell v. Head, 84 N. Y. .556. 19. Opening the accounting— allow- ances for uncompleted contracts. When a settlement of partnership accounts will he set aside because of the false and fraudu- lent statements of one partner, and what allow- ;ance should be made on such settlement for uncompleted contracts, see King v. Leighton, 22 Hun 419. IV. Eights op Ceeditobs. 20. Rights of creditors as to appli- cation of firm assets. The prior right •of the creditors of a firm to its effects cannot be impaired by any consideration having refer- ence to the interests of the individual partners ; and anything which defeats this right and hin- -ders or delays such creditors in enforcing pay- ment of their demands against the firm from the firm's property, is a violation of the statute and a fraud upon such creditors. — Com. Pleas, (Oen. T.,) May, 1881. Schiele v. Healy, 61 How. Pr. 73. V. Dissolution. 21. Notice of dissolution. A bank with which a firm has for several years kept an account, wherein the firm is credited with the amounts deposited by it, and charged with the amounts withdrawn, is a dealer with the firm, within the meaning of the rule requiring actual notice of the dissolution of a firm to be given to all persons who had previously been dealers with it. — Supreme Ct., [Isl Dept.,) March, 1881. Nat. Shoe and Leather Bank v. Herz, 24 Hun 260. 22. This is especially so where, on the disso- lution of the firm, (Martin Herz & Co.,) Martin Herz retires, and, by agreement, his former partner carries on the business undetr the former firm name. lb. 23. Powers of surviving partner. By articles of copartnership it was stipulated that in case of the death of one of the partners, the survivor should continue to carry on the business for the benefit of both parties, for a time specified after such death. Hdd, that the authority thus conferred, if valid and operative, (as to which qwsre,) did not authorize the sur- vivor to bind the estate of the deceased by new accommodation indorsements, nor did it permit and make valid an indorsement of the firm exe- cuted by the survivor as a renewal of an in- dorsement made in the lifetime of the deceased, and with his assent. — Ct. of App., Nov., 1880. Nat. Bank of Newburgh v. Bigler, 83 N. Y. 51. 24. After one member of a firm has been adjudged a bankrupt and has executed an as- signment to his assignee, the solvent partner and such assignee must join in an action to col- lect a claim due to the firm. — Supreme Ct., (IsJ Dept.,) Nae., 1880. Browning v. Marvin, 22 Hun 547. 25. Liabilities of surviving partner. A surviving partner, standing also in the posi- tion of trustee of the deceased partner, who fails to set apart the share of such deceased partner, and wrongfully keeps such share in the business, is liable to the cestuis que trust, on de- mand, for its value, which is payable to them out of the firm assets which came into his hands, or from the proceeds of such assets. — Ct. of App., 1880. Hooley v. Gieve, 9 Abb. N. Cas. 8. 26. Rights and powers of liquidat- ing partner. Upon the dissolution of a part- nership it is competent for the copartners to constitute one of their number a special agent for winding up its affairs ; and when this has been done, third persons who, with notice of the arrangement, deal, in matters connected with the liquidation, with a partner other than the one thus authorized, are subject to the equitable rights of the other partners. — Ct. of App., Nov., 1880. Hilton v. Vanderbilt, 82 N. Y. 592. 27. Upon the dissolution of the firm of U. & Co., v., one of the copartners, by agreement be- tween them, assumed the payment of all the debts, and took charge of the liquidation and settlement of its affairs j U., the other partner, having nothing to do therewith. Of this ar- rangement plaintiffl, who were the factors of the firm, had notice, and they were directed by V. not to sell the goods of the firm in their bands at less than a specified price. Notwithstanding this, plaintiffs, without any notice to V., upon consultation with, and by the direction or advice of U., who had become their clerk, and who was PARTNERSHIP, V.— PATENTS. 221 insolvent, sold the goods at a less price. In an action to recover an alleged balance for advances made by plaintiffs to the &im— Held, that the sale was made without lawful authority; that TJ. had parted with all right to control or direct as to sales. 76. 28. Power of one partner to bind firm after dissolution. By the articles for the dissolution of^a firm consisting of two part- ners the business was to be liquidated at the firm store, and both the partners were to assist and were authorized to sign in liquidation. Thereafter, one of the partners, without the knowledge or consent of the other, made out and sent to the plaintiff a statement of the ac- count due to him from the firm. In an action upon this as an account stated — Held, that it was binding only upon the partner making it, and not upon his copartner.— -Supreme &., {-IdDept.,) May, 1881. Hart v. Woodruff 24 Hun 510. 29. As to the liability of one partner for con- version of partnership assets after dissolution, see Flannagan v. Maddin, 81 N. Y. 623. 30. Marshaling assets— rights of creditors. The owner of a judgment against a surviving partner obtains thereby no lien upon a trust fund created by the deceased partner out of the partnership assets ; and where such fund has been wrongfully permitted by its trustees, who were also partners, to remain in the busi- ness, the rights of a receiver, appointed at the instance of the cestui que trust of the fund, to the partnership assets, are prior to the judgment, if it was not obtained until after the appointment of the receiver. — Ot. of App., 1880. Hooley v. Gieve, 9 Abb. N. Cas. 8. 31. Rights of representatives of de- Qeased partner. The representatives of a deceased partner have a lien upon the whole of the assets of the firm, subject to the payment of the debts of the firm for the amount which may be found to be the deceased partner's share of the firm's assets. lb. 26. 32. The surviving partner is entitled to the whole of the firm's assets for the purposes of liquidation, and he becomes a trustee for that purpose. Ih. 33. If the surviving partner continues the business of the firm and uses the assets of the old firm in such continuation, he commits a breach of trust, and misappropriates property uponwhich a lien has been impressed for the security of the representatives of the deceased partner. Ih. 34. If, by such continuation, the surviving partner has disposed of the assets and stock of the old firm and has invested the proceeds thereof in new stock, so that the identity of the old stock and assets are lost, and has mingled in such new stock property of his own, in such a manner that it cannot be separated, the court will impress the lien of the representatives of the deceased partner upon the whole of the new stock to indemnify the trust fund, except as against a bona fide purchaser or a party having acquired a specific lien by the levy of an exe- cution or attachment. lb. 35. Such a lien will be enforced to the ex- clusion of the individual creditors of the sur- viving partner, upon the ground that it would be more inequitable to appropriate any portion of the trust funds to the payment of the indi- vidual debts of the surviving partner, than that some portion of his individual property, which, he had so mingled with the trust funds that its- identity was lost, should be appropriated to the- indemnification of the trust fund. lb. 27. PART PAYMENT. Effect of, generally, see Debtob akd Cked- ITOB, III., v.; on Statute of frauds, see Con- tracts, IV. ; on Statute of limitatiom, see Lim- itations or Actions, V. PARTY WALLS. Easements,. 7-11. PASSENGERS. Eatlboad Companies, 28-32, 39-42, PATENTS. 1. Patentee's right to royalties ftom manufacturer. It seems, that where a patent is apparently valid and in force, a party using it is liable for royalties agreed to be paid until the patent is rescinded or revoked, or until notice- has been given to the opposite party that he will pay no more under the contract. Actual in- validity of the patent is alone no defence to an- action to recover such royalties. But if the- patent is annulled by proper legal proceedings and priority of invention, and a patent is awarded' to another, no royalty is thereafter recoverable ; and in such case no notice is necessary. — Ot. of App., Nm)., 1880. Marston v. Swett, 82 N. Y. 526. 2. Plaintiff and defendants, S. and M., were joint-owners of certain letters patent which they believed to be valid ; an agreement was entered into between the parties to the effect that de- fendants should have the exclusive right to- manufacture and sell the patented article ia consideration of certain royalties which, they agreed to pay plaintiff. In an action to recover royalties accruing under the contract from Oc- tober 1st, 1869, to January 1st, 1872, defendants offered to prove that on December 8th, 1869, the patent office declared an interference between the patentee and one Gr. respecting the invention, and that on January 19th, 1871, a decision was made by that office declaring G. to be the first and original inventor, awarding priority to him, and directing the issue of a patent to him. This evidence was objected to and excluded. Held, error ; and that had the facts so offered to be proved been established, plaintiff would not have been entitled to recover royalties accruing after the date of such decision. lb. For decisions respecting Trade-marks, see In- junction, 18-21 ; TB.4DE-MAEKS. 222 PAYMENT— PERSONAL PROPERTY. PAUPERS. POOE. PAYMENT. tOonsult, also. Debtor and Okeditob, 6-12] Taking a cheok in payment. In an action upon a promisaory note for $2400, it ap- peared that the note was indorsed by defendant W. for the accommodation of the makers, of which fact plaintiff had notice. The note was ■delivered by the makers to plaintiffs cashier, who indorsed it, and at their request procured it to be discounted by another bank, plaintifi" re- ceiving a compensation for procuring the dis- ■count. On, or ,pi-ior to, the day the note fell •due, the makers delivered to plaintiff another mote, being one of several indorsed by W., and delivered to the makers to take up the note in suit, and other notes previously indorsed by him ; plaintiff's cashier was directed Uo apply the proceeds to take up the paper so indorsed. It did not appear that this direction was revoked. The proceeds were credited to the makers. It did not appear that plaintiff, at that time, held any paper so indorsed by W., save the note in suit, which it had taken up. A few days after, the makers drew a check on, and delivered it to, plaintiff for 12731.62, payable to " notes, etc., ■or bearer." No money was paid the drawers (thereon, and it did not appear that the proceeds ■of the note had been drawn out. Hdd, that the plain inference from the transaction was that •the check was given to pay the note in suit, and that it was paid thereby ; and that, in the .absence of any proof rebutting this presump- •tion, a finding of non-payment was error. — Ct. of App., Jan., 1880. Nat. Bank of Gloversviile V. Wells, 79 N. Y. 498. As to Payment into court, see Tender. As to Application of payments, see Dbbtob AND Ceeditob, 8-12. As to payment of Legacies and Debts of dece- dent, see ExECDTOES and Administratoks, ■57-73 ; LBfflAciES, III. , For rules regulating the Reeovery hack, of money paid, see Monet Eeobived. PENALTIES. 1. For allo-wing cattle to run at large on highway. This action, which was brought to recover the statutory penalties for allowing cattle to run at large upon the high- way, was commenced by the service upon the •defendant of a summons, issued by a justice of the peace, which required the defendant to appear before him, at his office, "to answer .Smith Schoonmaker, in a civil action for penalty for letting cattle run at large on highway, to his damage of two hundred doUars or under." There was no indorsement upon the summons. Hdd, 1. That ? 7 of art. I, title 6, ch. 8, part 3 of the Ee vised Statutes, requiring a general reference to the statute giving the penalty, to be indorsed upon every process issued to compel the appearance of the defendant in an action brought to recover the same, was not repealed by the Code of Procedure. 2. That the statement of the object of the action contained in the body of the summons was not a sufficient compliance with the statute. — Supreme Ct., (3rf Dept.,) May, 1881. Schoon- maker V. Brooks, 24 Hun 553. 2. In such an action the statute must be literally complied with, and the notice must be indorsed upon, and not embodied in the sum- monsi lb. PENDENCY OF ANOTHER ACTION. Abatement, 4; Pleading, IT. PERILS OF THE SEA. Insueance, IV. PERJURY. 1. The oath— ho-w to be admluis- tered. As to what is a sufficient administer- ing and taking of an oath to sustain a prosecu- tion for perjury, see People v. O'Eeilly, 61 How. Pr. 3 ; 9 Abb. N. Gas. 77, But see reversal of this case, 3 Grim. L. Mag. 85. 2. Indictment for subornation. Un- der the provisions of the Eevised Statutes (2 Rev. Stat. 682, § 8,) declaring every person guilty of a felony " who shall, by the offer of ' any valuable consideration, attempt unlawfully and corruptly to procure any other to commit willful and corrupt perjury," it is not essential to the validity of an indictment for the offence that it should aver that the accused incited or solicited the other person to commit perjury. The statute declares in what the attempt pro- hibited shall consist — i. e., the offer of a valua- ble consideration, and an averment of an offer of such a consideration for the purpose specified is sufficient. — Ct. of App., Jime, 1880. Stratton V. People, 81 N. Y. 629. PERPETUITIES. Wills, 16-18. PERSONAL INJURIES. Municipal Goepobations, 33-35; Eail- eoad gompanies, 30-63. PERSONAL PROPERTY. 1. Seat in stock exchange is. The seat of a member in the exchange is property in every proper sense of the term, and can be PERSONAL PROPERTY— PLEADING, I. 223 sold, and is transferable as any other species of property having actual value as such. — Superior a., {Sp. T.,) May, 1881. Sewell v. Ives, 61 How. Pr. 54. 2. Effect of la-w of place on title. As between citizens of this state, the title to per- gonal property cannot be divested without the assent or intervention and against the will of the owner, by the removal of the property from the state by another, having no ■ authority from the owner, and its sale in another country under different laws. — Ot. o/App., June, 1880. Edgerly V. Bush, 81 N. Y. 199. PHYSICIANS AND SURGEONS. 1. Kight to practice — necessity of license or diploma. Ch. 436 of 1874, declaring it to be a misdemeanor for any per- son to practice medicine or surgery who is not authorized to do so by a license or diploma from some chartered school, &c., does not apply to one who undertakes to cure diseases by man- ipulating the patient's body by rubbing, knead- ing and pressing it ; and such person is entitled to recover a compensation agreed to be paid for «uch services, although he is not a graduate of a medical school and has no license permitting him to practice either medicine or surgery. — Supreme Ot., {1st Dept.,) May, 1881. Smith s. Lane, 24 Hun 632. 2. Privilege of communications be- tween physician and patient. The statute prohibiting a physician from disclosing any information which he acquired in attending a, patient in a professional capacity, and which was necessary to enable him to prescribe, (2 Eev. Stat. 406, § 73 ; Code of Civ. Pro., § 834,) includes information received through the sense of sight as well as that communicated through the ear. It needs not that an examination of a patient should be private to exclude information so derived ; nor is it required that it should be «hown, in the first instance, by formal proof, that the information was necessary to enable the physician to prescribe. — Ct. of App., March, 1880. Grattan v. Metropolitan Life Ins. Co , 80 N. Y. 281. 3. The statute includes all knowledge ac- quired from the patient himself, from the state- ments of others surrounding him, and from ob- servation of his appearance and symptoms. lb, 4. The death of the patient does not remove the prohibition, and the physician cannot testify to the cause of death learned by him while at- tending the patient in a professional capacity. lb. See, also. Same v. Same, 24 Hun 43. As to competency of physicians as Witneseea, ■see Witnesses, 61, 73 PLACE OF TRIAL. Tbial, IL PLANkROAD COMPANIES. 1. Extension of term of incorpora- "tion. In so far as ch. 611 of 1875, providing for the organization of business corporations, and authorizing them to extend their corporate existence, applied to plankroad companies, it was repealed by ch. 135 of 1876, and after the passage of the latter act such companies could only extend the term of their corporate ex- istence by taking the proceedings therein pro- vided for.— Supreme Ct., {2d Dept.,) Dec., 1880. People V. Newburgh, &c.. Plank Koad Co., 23 Hun 173. 2. Ch. 187 of 1880, amending oh. 611 of 1875, applied only to existing corporations, and not to such as had then ceased to exist, lb. PLEADING. [Includes rules of pleading in civil actions at law or in equity, except such as are peculiar to some particu- lar cause of action, remedy, or defence, which is the subject of a separate title in the work.] I. Complaint. II. Answer. III. Demueeer. IV. Reply. V. Vebipication op Pleadings. VI. The Issue. Eppect op Admissions in Answer. Vn. Evidence under the Pleadings. VIII. Amended and Supplemental Plead- ings. IX. Eemedies por Errors and Dbpects. I. Complaint. 1. Beqiiisltes, generally. Although it is only requisite that a complaint shall contain facts constituting a cause of action, and the court will give the relief to which those facts entitle the plaintiff, whether legal or equitable, and so the complaint may be framed with a double aspect, yet the plaintiff can have no re- lief that is not "consistent with the case made by his complaint and embraced within the issue." (Code of Pro., § 275; Code of Civ. Pro., 2 1207.) The plaintiff, therefore, must es- tablish the allegations, and if they warrant legal relief only, he cannot have equitable relief upon the evidence. — Ct. of App., March, 1881. Ste- vens V. Mayor, &c., of New York, 84 N. Y. 296. 2. Statement of the cause of action. The evidence by which a cause of action is to be established upon the trial should not be pleaded, but only the facts which constitute the cause of action. — Svpreme Ct., {1st Dept.,) June, 1880. Badeau v. Niles^ 9 Abb. N. Cas. 48. 3. A complaint, in an attorney's action for services, which sets out the original agreement for compensation, the performance of service under it, and that the fruits resulting from the services have been received by one whom the de- fendant, with the knowledge an^ consent of the plaintiff, has authorized to receive the same, and that neither such person nor defendant has paid to plaintiff the proportionate part of such fruits payable to him, States a good cause of action. Upon such a state of facts, the defendant had the power, and was bound to see that the person who received the money paid to the plaintiff liis proportion thereof, or to demand it from such 224 PLEADING, I., II. person and pay it himself. — Superior Ct., June, 1880. Dickinson v. Devlin, 46 Superior 232. 4. As to the proper manner of alleging the making of false representations on the part of defendant, in a complaint, and when a failure to properly allege such representations, will be deemed to have been waived, see Furlong v. Gair, 46 Superior 232. 5. Instances. Plaintiff's complaint al- , leged in substance that there was a sum of money belonging to her in the official custody of the counly clerk of K. county, the same being the surplus arising upon the foreclosure of a mort- gage upon certain lands belonging to her in the town of N. L. ; that an assessment for a local improvement had been in form laid upon said lands in pursuance of certain statutes which were unconstitutional and void and the assess- ment invalid ; that a tax was levied upon the premises to pay such assessment and a warrant issued to the collector of said town, who, by virtue thereof, levied upon and took said money from the county clerk and paid it to the county treasurer to the credit of the town ; that bonds of the town had been issued to provide for pay- ment of the expenses of said improvement, which were valid obligations of the town, and the money so paid was applied to the payment of said bonds, and that said town had wrongfully taken and received said money, without the knowledge or consent of the plaintiff, and ap- plied it to its own use, and had failed and neg- lected to pay over the same. Held, that the complaint set forth a good cause of action against the town, and that a demurrer thereto was improperly sustained. — Ct. of App., Dec, 1880. Horn v. Town of New Lots, 83 N. Y. ,100. 6. Plaintiff's complaint alleged in substance that prior to July, 1866, he was the owner of certain premises in the city of New York, part of an old street which had been closed and a new street opened, of which fact and of his title plaintiff was ignorant ; that defendant sold said premises at public auction, and thereafter ap- plied to the plaintiff for a release and convey- ance of his title, at the time, " fraudulently and with intent to deceive," keeping concealed from him the facts, and falsely informing him that he had some slight claim, a mere equitable one of no value, and " that the plaintiff, misled, de- ceived and induced by such fraudulent conceal- ment and such false and fraudulent statements and misrepresentations, which he believed to be true, executed and delivered such release with- out any consideration." That the premises so conveyed were worth $200,000, and judgment was demanded for that amount. The answer denied the allegations of fraud, and the referee found in favor of defendant. Seld, that the ac- tion was one at law only, and plaintiff not hav- ing sustained the allegations of the complaint, a judgment for defendant was proper, although the case may Have presented matters of equita- ble cognizance. Stevens v. Mayor, &c., of New York, supra. 7. Plaintiff's complaint alleged in substance that B., his intestate, being at the time of un- sound mind, transferred to defendant various sums of money, under an agreement in writing, by which defendant agreed to pay to B. the in- terest on said money during his life, and after his death interest on the whole or a part thereof to his executor or administrator for the benefit of his widow, or directly to his widow and his sister for their benefit during their lives ; that interest was paid by defendant up to the death of B., but not since ; that the sister of B. died shortly after his death ; that plaintifi^ after his appointment as administrator, obtained from the widow her written consent that he might sur- render the written agreement, which he offered to do, and demanded a return of the moneys, which defendant refused. On demurrer to the complaint — Held, that it stated a good cause of action ; that the allegation as to unsoundness of mind was one of fact, and the contract was one that could be rescinded. — Ct. of App., March, 1881. Biggs V. American Tract Soc, 84 N. Y. 330 ; reversing 19 Hun 481. II. Answer. 8. Facts, not conclusions of law, must be alleged. A defence that, upon the facts set forth in the complaint, plaintiff is not the real party in interest, and not the proper plaintiff, is bad on demurrer. — Supreme Ct., {Del- aware Sp. T.,) Sept., 1880. Gleason v. Youmans, OAbb.N. Cas. 107. 9. General and specific denials. De- fendant may admit one or more special allega- tions of the complaint and interpose a general ' denial to the remainder, when the allegations of the complaint are so specified that there can be no mistake in ascertaining what' is put in issue or in prosecuting the defendant for per- jury if the verification is false. — Supreme Ct., (Sp. T.,) June, 1881. Haines v. Herrick, 9 Abb. N. Cas. 379. 10. Where the complaint is not generally de- nied, it is not sufficient for the defendant to deny such portions thereof as are not otherwise admit- ted or avoided, the code not having provided for such a mode of pleading. Accordingly, where the answer contained admissions and specific de- nials of various allegations of the complaint, and, with respect to others, added that the defendant " denies each and every allegation in said com- plaint contained, not hereinbefore admitted or avoided" — Held, that this last-mentioned form of denial was not authorized by J 500 of the code. — Supreme Ct., (1st Depf.,) March, 1881. Miller v. McCioskey, 1 Civ. Pro. 252 : S. 0- 9 Abb. N. Cas. 303. U. Pleading defect of parties. An an- swer setting up a defect of parties plaintiff, must give the names of the necessary parties if they be known to the defendant. — Supreme Ct., {ith Dept.,)Apnl,l881. Maxwell u.Pratt, 24 Hun 448. 12. A general denial is a waiver of the objection that the promise sued upon is joint, and that plaintiff should have joined the other covenantees as parties. — Supreme Ct., {Or- leans Oir.,) Oct., 1880. "Warner v. Boss, 9 Abb. N. Cas. 385. 13. Plea of former action pending. The requirement that to sustain a plea of a for- mer action pending, it must appear to the court that the first action was for the same cause as the second, is to be strictly enforced ; it is not enough that the property in controversy in both actions is the same. Tlie rule is the same in actions of ejectment. — Ct. of App., Jan., 1880. Dawley v. Brown, 79 N. Y. 390. 14. An answer admitting a certain sum to be due by defendant, but alleging as » reason for non-payment that a third party has attached the PLEADING, II., III., IV. 226 indebtedness in an action against plaintiff, that said action " has since been pending," and that the defendant has never been released from its obligations by reason of such levy, is insufficient, and does not constitute a bar to the recovery of the amount, on motion, under Code of Civ. Pro., i 511. The answer should state that the said at- tachment and levy are still in force. — Simenor Ct., Feb., 1880. Marsh v. West, &c., Manuf. Co., 46 Superior 8. 15. Pleading matters arising after suit brougbt. A defendant may set up in his answer any matter arising before it is put in, whether it occurred after suit brought or not. Such an answer, although not a plea in bar, is an answer to the further maintenance of the suft, and if true and sufficient, is equally effective in preventing a recovery. — Marine Ct., (Trial T.,) June, 1881. Keimer v. Doerge, 61 How. Pr. 142. III. Demxtbrer. 16. Grounds, generally. Special demur- rers, as known to the former practice, were abro- gated by the code ; and no pleading is now de- murrable unless it is subject to one or more of the objections specified in the provisions of the code, defining the grounds of demurrer. (Code of Civ. Pro., U 488, etseq.)—a. of App., Nov., 1880. Marie v. Garrison, 83 N. Y. 14 ; reverdng 45 Superior 158. 17. To sustain a demurrer to a complaint it is not sufficient that facts are imperfectly or inform- ally averred, or that it lacks definiteness and precision, or that the material facts are argu- mentatively averred ; it will be deemed to allege what can by reasonable and fair intendment be implied from the allegations. 1 b, 18. It seems that the remedy for indefiniteness is not by demurrer, but by motion. (Code of Civ. Pro., ? 546.) lb. 19. In an action against a ministerial officer for executing a process valid upon its face, issued out of a court having jurisdiction of the action and of the parties, a general allegation that the process was unlawful and void can have no greater force than a previous recital of the facts which shows that it was authorized and valid, and a demurrer to such pleading in a complaint must be sustained.— 5'itpertor Cl., (Sp. T.,) Nov., 1880. Clark v. Bowe, 60 How. Pr. 98 . 20. Where, in an action brought to recover damages for a failure of defendant to perform an agreement as to the sale of a plantation, alleged in the complaint to be situated in the State of Louisiana, the defendant, in her answer, set up as a counter-claim that the plaintifl, while in possesion of " Live Oaks " " the said plantation," unnecessarily injured, wasted and damaged it to the amount of not less than $10,000, it nowhere appearing from the said answer, except by reference to the complaint, that the plantation was situated in another state, a demurrer to the counter-claim on the ground that the court had no jurisdiction of the subject thereof — as being founded upon an in- jury to real property situated in another state — cannot be sustained. — Supreme Ol., (2d Dept.,) Sept., 1880. Cragin v. Quitman, 22 Hun 101. 21. Insufficient statement of cause of action. A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action, cannot prevail. unless it is apparent from an examination of the complaint, taking all its allegations to be true, that no cause of action whatever is stated. — &- preme Ct., (1st Dmt. Sp. T.,) Jime, 1881. Piersoa V. McCurdy, 61 How. Pr. 134. 22. The fact that the plaintiff may, in his complaint, have demanded relief to which he is not entitled, or may have misconceived the na- ture of the judgment which the court should pronounce upon the facts set forth in his com- plaint, does not make the complaint bad upon demurrer, if those facts entitle him to any^udg- ment or any relief. lb. _ 23. Time to demur — extension of time. On April 6th the defendant's attorney, whose time to answer expired April 11th, ap- plied for an extension of time to the plaintiff's attorney, who thereupon signed the following written stipulation : " The time for the defend- ant, Dennis J. O'Connor, to answer the within complaint, is hereby extended twenty days. Dated N. Y.,_ April 6th, 1880." The plaintiff's attorney having refused to receive a demurrer served by the defendant's attorney on April 30th, on the ground that the time to demur had expired, the defendant moved for an order re- quiring the plaintiff to receive the demurrer, which was denied. Held, that the stipulation extended the time twenty days from April 11th, and that the demurrer was served in time. — Sur preme Ct., {\st Dept.,) Dec., 1880 Pattison v. O'Connor, 23 Hun 307 ; S. C, 60 How. Pr. 141. 24. Hearing and decision upon de- murrer. That upon the trial of a demurrer, judgment will be given against the first party whose pleadings are defective in substance, see Gleason v. Youmans, 9 Abb. N. Cas. 107. 25. When the validity or propriety of an order, allowing a person to be made a party de- fendant, cannot be considered on a demurrer to the complaint, see Smiths. Bathbun, 22 Hun 150. 26. Withdra-wal — leave to plead. After judgment has been entered upon an order overruling a demurrer without leave to plead to the merits, or with leave not availed of, the court, in the exercise of its discretion, wUl not, as a general rule, grant leave to withdraw the demurrer and to plead. — Ct. oj App., June, 1880. Fisher v. Gould, 81 N. Y. 228, 231. IV. Beplt. 27. "When proper — leave of court. Section 516 contains nothing authorizing the court to require a reply to a counter-claim. Its provision is that when an answer contains new matter constituting a defence by way of avoid- ance, the court may in its discretion, on the de- fendant's application, direct the plaintiff to reply to the new matter. — Supreme Ci!.,(lst Dept.), May, 1881. Adams v. Boberts, 1 Civ. Pro. 204. 28. Where an answer contains only new matter constituting a defence by way of avoid- ance, a reply put in without the direction of the court is irregular, and should be stricken out. Code of Civ. Pro., U 516, 517, should be con- strued together. — Superior Ct., Feb., 1880. Dil- lon V. Sixth Ave. E. B. Co., 46 Superior 21. 29. Sufficiency. A denial in the reply, upon information and belief, of allegations in defendant's answer, is insufficient where it ap- pears from the complaint that the facts set up in the answer are clearly within plaintiff's 226 PLEADING, IV., v., VI., VIL, VIII. knowledge.— Supreme Ot., (Sp. T.,) Dee., 1880. Fallon V. Durant, 60 How. Pr. 178. 30. Service of reply. Where an answer was served containing a counter-claim, and the cause was then noticed and cross-noticed for trial, and plaintiff, subsequently discovering the counter-claim, countermanded the notice of trial, and then served his reply, which service was within twenty days from the service of the answer — Held, on defendant's motion to strike out the reply, that the service was irregular. — Supreme Ot., {1st. Dept. Sp. T.,) Mareh, 1881. Eeilly v. Byrne, 1 Civ. Pro. 201. 31. It seems that defendant, in serving a notice of trial for April, (having previously noticed the cause for trial at the March Circuit,) and, in serving a bill of particulars, both after receipt of the reply, did not waive defective service of such reply, lb, v. Vebification or Pieadings. 32. Verification by attorney. An answer denying any knowledge or information sufficient to form a belief as to the truth of ma- terial allegations of the complaint, which is verified by the defendant's attorney, who gives as a reason why the verification was not made by the defendant, that the latter was not a resi- dent of the county in which the attorney re- ' sided, and states that the grounds of his belief were statements made to him by his client, raises an issue, and it cannot be stricken out on motion as sham. — Supreme Ot., ( 1st Dept.,) April, 1881. Neuberger v. Webb, 24 Hun 347. VI. The Issue. Effect of Admissions in Answer. 33. Express admissions. Where the complaint alleged that the plaintiff was injured upon the premises owned by the defendant, and used by him, his agents and servants, for the purpose of carrying on a school ; and, in his answer, defendant admitted the ownership of the premises, and denied the other allegations in the general form above stated — Held, that it might properly be assumed, in considering the case on appeal, that the school was carried on by the defendant. — Supreme Ot., {1st Dept.,) Mareh, 1881. Miller v. McGloskey, 1 Civ. Pro. 252. 34. Implied adtmssions. Where a ma- terial fact is alleged which is met by new matter set up in avoidance, and so is impliedly admitted, and the matter in avoidance is sus- tained by the findings, the implied admission does not work an estoppel. — Ot. of App., Sept., 1880. Remington Paper Co. v. O'Doughertv. 81 N. Y. 474. VII. Evidence under the Pleadings. 35. 'What facts must be specially pleaded. In an action against a bank to re- cover a deposit, evidence that the deposit had been attached, is properly excluded, when not set up in the answer.— Oi. of App., March, 1881. McGraw v. Tatham, 84 N. Y. ff77. 36. Where an exception is contained in the enacting clause of a prohibitory statute, one who pleads the statute must negative the ex- ception, and must prove the negative, unless the subject matter of the negative a!nd the means of proof are peculiarly within the knowl- edge and power of the opposite party, or where the negative does not admit of- direct proof. — Ot. of App., Sept., 1880. Harris v. White, 81 N. Y. 532. 37. Wbat need not be. Defendant is not precluded by Code of Pro., ? 149, snbd. 2, (Code of Civ. Pro., § 500, subd. 2,) from resting upon a defence in the nature of matter of avoid- ance, which is not set up in the answer, when the facts upon which the defence is based are stated in the complaint. — Swpirior Ct., Jan., 1880. Fairchild v,. Lynch, 46 Superior 1. 38. Instances. In an action to recover damages for injuries received by plaintiff in consequence of falling through a coal-hole in the sidewalk, in front of defendants' premises, the answer was a general denial. Defendants offered to prove on the trial that they had ob- tained the usual permit from the proper authori- ties, authorizing the construction of the vaults under the walk and the coal-hole. This was objected to and excluded, on the ground, among others, that it was not pleaded. Held; no error ; that, if a permit was material, it could only be to mitigate the act from an absolute nuisance to one involving care in the construction and maintenance ; that it was necessary not only to plead it, but to allege and prove a compliance with its terms, and that the structure was prop- erly made and maintained, to secure the same safety to the public that the sidewalk would have done without it. — G. of App., April, 1880. Clifford V. Dam, 81 N. Y. 52. 39. Where plaintiffi claimed the right to maintain the action in a representative capacity conferred on them by a foreign tribunal, and that the cause of action passed to them by virtue of their appointment and by virtue of the operation of the laws of a foreign country — Held, that these matters constituted traversable facts as to which defendants should have defi- nite information. — Superior Ot., { Gen. T.,) June, 1881. De Nobele v. Lee, 61 How. Pr. 272. VIII. Amended and Supplemental Plead- ings. 40. Service of an amended com- plaint within the prescribed time will defeat a motion to make the original complaint mqre definite and certain ; and such amended com- plaint may set forth a different cause of action from that contained in the original complaint. —Supreme Ol., (1st Dept. Sp. T.,) Aug., 1881. Spuyten Duyvill Boiling Mill Co. v. Williams, 1 Civ. Pro. 280. 41. Supplemental answer. An answer alleged that defendants, on petition of cer- tain of their creditors, were duly adjudged bankrupts under the law of the United States, and such proceedings were thereafter had that a trustee was duly elected ^nd appointed, having certain persons for his committee. The supple- mental answer alleged that, in pursuance of the bankruptcy proceedings, mentioned in the ori- ginal answer, the Distript Court of the United States for the Southern District, sitting as a court of bankruptcy, had (since the service of the original answer) granted to th^ defendanU certificates of discharge under the seal of said court. Held, a sufficient averment of judgment — Superior Ot., June, 1880. Henuequin v. Clews 46 Superior 330. PLEADING, IX.— POOE. 227 IX. Eemedies for Ereors and Defects. 42. Striking out frivolous plead- ings. An answer containing a counter-claim for the amount for which the action is brought, which fails to allege that such set-off belonged to defendant before he had notice of the assign- ment to the plaintiff of the claim sued upon, is frivolous under Code of Civ. Pro., § 502. — Oom. Pleas, (Sp. T.,) Jv/ne, 1881. Venable v. Harlin, 1 Civ. Pro. 215. 43. In an action by one of several residuary legatees to recover his share of the estate, a de- murrer interposed by the executor, the sole de- fendant, on the ground that the other residuary legatees should oe made parties thereto, cannot be adjudged frivolous. — Supreme Ct., (1st JDept.,) Nov., 1880. Leavy v. Leavy, 22 Hun 499. 44. When an answer cannot be stricken out as frivolous, see Dickinson v. Auld, 23 Hun ■275. 45. Judgment on frivolous plead- ings. Under Code of Pro., § 247, whens " a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous no- tice of five days, may apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given accord- ingly." This practice is not changed, but re- mains the same under Code of Civ. Pro., ? 537. -^Simreme Ct., {Jefferson Sp. T.,) Dec., 1880. Koblm V. Long, 60 How. Pr. 200. 46. Striking out sbam pleadings. In an action brought in this state to enforce the judgment and decree of the courts of a foreign state or country, an answer denying any knowl- ■edge or information sufficient to form a belief as to all the material allegations of the com- plaint will be stricken out as sham where the defendant appeared in the original action. lb. 47. Making more definite and cer- tain. It seems that where defendant has moved to make plaintiff's complaint more definite and ., 1880. Felton v. McClave, 46 Superior 53. n. Eights, Duties and Liabilities op- Agents. 3. Bight of agent to deal for his own benefit. Where a duty rests upon a party in respect to the property of another, the viola- tion or omission of which will result in a sale- of the property, and where a sale is made be- cause of such breach of duty, the person owing it is absolutely- disqualified from becoming a purchaser at the sale for his own account, — Of. of App., June, 1880. Bennetts. Austin, 81 N., Y. 308, 332. 4. Duty to account to principal. Where one has received and assumed to sell, as agent of the owner, the personal propeity be- longing to another, the law raises an implied cflntract, that he will account to the owner for the proceeds. — Supreme Ct., (4the bond accompanying the mort- gage became due, F. told the plaintiff to collect the mortgage, " and not to let it run over the time it is due." The court found that when ' the bond and mortgage became due, the obligor was hopelessly insolvent, and had so remained ; there was no finding, or request to find, that the property would then have brought more than at present, nor was there any evidence as to the extent of the depreciation in value, if any. Held, that the notice was insufficient to base a claim thereon that F. was discharged by a delay in bringing an action to foreclose. Also, that F. failed to show any injury resulting from the delay. lb. 16. Liability of estate of deceased starety. Code of Civ. Pro., ? 768, providing that the estate of one jointly liable upon a con- tract shall not be discharged by his death, is not applicable to contracts made prior to its adoption. — Supreme Gt., (2d Dept.,) Dec., 1880. Bichardson v. Draper, 23 Hun 188. For the liability of the surety as fixed by the terms of the Bond, see Bonds. For the liability of sureties on Official bonds, generally, see the titles of the various officers. As to sureties of Personal representatives and Trustees, and proceedings to enforce their lia- bility, see ExBCtJTORS and Administbatoes, 122-127. As to the rights and liabilities of sureties upon BiUs and Notes, see Bills of Exchange ; Promissory Notes. For the liability of Bail, see Bail. PRIORITY. Deeds, 4 ; JiroaMBNT, 43 ; Mortgages, 22-28, 31-35. PRIVATE WAYS. Easements, 12, 13. PRIVILEGE. Of persons under Disabilities, see Husband AND Wife, 9, lO. As to Privileged communications, see Attor- ney AND Client, 25-29 ; Witnesses, 21, 22. PROBABLE CAUSE. Malicious Prosecution, 3, 4. PROBATE. Courts, 17-37 ; Wills, 6-14. PROCESS. 1. Designation of unknown defend- ants. It seems that the provision (Code of Civ. Pro., ? 451,) in reference to the manner of 232 PROCESS— PROHIBITION. designating and of seryice of summons upon unknown defendants, applies to all actions in which service of summons may be by publica- tion, including actions for partition. — Gt. of App., March, 1881. Bergen v. Wyckofi; 84 N. Y. 659 : S. C, 1 Civ. Pro. 1. 2. The title of an action in a summons and complaint did not contain the names of two of the defendants whose names were unknown, but referred to them as the wives of two other de- fendants whose names were given. Held, 1. That the summons was defective and irregular, for the reason that the code requires that the summons shall contain the names of the parties, or so much of his or her name as is known, adding in that case a description identi- fying the person intended. (§§ 417, 451.) 2. That this defect, not altering the issue be- tween the parties, was properly made the sub- ject of amendment. — Supreme Gt., (1st Dept.,), March, 1881, Weil v. Martin, 1 Civ. Pro. 133. In such case the word " Mrs." prefixed to the name of the husband,followed by the de- scription, " his wife," is sufficient. lb. 3. Suffloienoy of service, generally. Where a party legitimately and voluntarily comes within the territorial jurisdiction of the court, not having been induced to do so by fraud, trick, or device, the fact that access to him is by such means obtained, furnishes no ground for setting aside the service. — Superior Gt., Dec., 1880. Atlantic, &c., Teleg. Co. v. Bal- timore, &c., E. K. Co., 46 Superior 377. 4. Service by publication — "wlien proper. Under Code of (Jiv. Pro., ? 2799, relating to the distribution of surplus money in foreclosure proceedings, the citation must be served by publication, on the persons entitled to share in the proceeds. Personal service or service by mail will not confer jurisdiction on the surrogate. — N. Y. Surr. Gt., Dec, 1880. Matter of Solomon, 4 Eedf. 509. 5. Requisites of a£Q.d.avit for order to publish. Under the provision of the Code of Pro., ? 135, which authorized the service of a summons by publication, when it should appear by affidavit, "to the satisfaction of the court, or a judge thereof," that the de- fendant could not, "after due diligence, be found within the state," the court or judge was enipowered to pass upon the sufficiency of the evidence as to the exercise of due diligence. — Gt. of App., Oet., 1880. Belmont v. Comen, 82 N. Y. 256. 6. Where an affidavit contained allegations tending to show that efforts had been made to find the defendant within the state, and that he was not there, it gave jurisdiction to the court, or judge, to pass upon the question of the suffi- ciency of the proof, and if so satisfied, neither the order for publication nor the judgment based thereon can be impeached collaterally. lb. 1. An affidavit, presented on application for an order of publication in a foreclosure suit, showed that plaintiff placed in the hands of the sheriff of the city and county of New York where the premises were situated, and where the venue was laid, a summons in the action, and received from him an official return that he had used due diligence to find the defendants in his county, but was unable to do so. The affidavit further alleged that the deponent, who was the plaintiff's attorney, had been informed by M., a counselor-at-law, who had professional deal- ings with the defendants, that they were non- residents of this state, living in Connecticut, which deponent verily believed to be true. Upon motion to, vacate the order and the judg- ment, the non-residence of the defendants was conceded. Held, that the affidavit was sufficient to give the judge jurisdiction to pass upon the question of due diligence, and to authorize the granting of the order. lb. 8. On an application for an order directing the service of the summons by publication, in an action commenced in July, 1877, an affidavit was presented which alleged " that the defend- ant has not 'resided within the State of New York since March, 1877." Held, that this alle- gation was sufficient evidence of the plaintiff's inability, after due diligence, to find the defend- ant within the state, and was sufficient to con- fer jurisdiction upon the court to make the order. — Sapreme Gt. {2d Dept.), Dec., 1880. Carleton v. Carleton, 23 Hun 251. 0. Personal service out of the state. A citizen of one state or country cannot be compelled to go into another state or country to litigate a civil action by means of process served in his own state or country. And a judgment obtained upon such service, where no appearance is made by the person so served, can impose no personal liability which will be rec- ognized beyond the state in which the action originated. — Supreme Gt.,{\st Dept. Sp. T.,) June, 1880._ Shepard v. Wright, 59 How. Pr. 512. As to Amendment of process, see Amend- ment, 1. As to Mnal process, see Exectjtion. PROFITS. Recovery for Loss of, see Damages, 1, 2. When Agreement to share constitutes partner- ship, see Pabtneeship, 3, 4. PROHIBITION, (Writ of.) 1. When it lies. The writ of prohibition is a preventive remedy, and not a corrective one, and can only be used to prevent the doing of an act about to be performed, not to remedy an act already completed ; and Code of Civ. Pro., ^ 2100, was not intended to alter the com- mon law rule in that respect. — Supreme Gt., (1st 2)ep(. Sp. T.,) Aug., 1881. People, ex rel. Gould, V. Comm'rs-of Excise, &c., 1 Civ. Pro. 244 ; S. C, 61 How. Pr. 514. 2. The provisions of \ 2100 — that the tri- bunal proceeded against may be directed to annul or vacate proceedings theretofore taken in the matter— ^applies only to interlocutory or mesne proceedings prior to the final decision of such tribunal. lb. 3. "When it will not lie. Where, on the return of an alternative writ of prohibition, it appeared that the board of commissioners of ex- cise of the city of New York had revoked the relator's license prior to the granting of the writ, and had ordered the cancellation of his license, but had not, at the time of the return, obtained actual possession of the license — Held, PROHIBITION— PROMISSORY NOTES, I., II. 233 that the judicial proceedings of the board ter- minated when they pronounced judgment re- voking the license, and that taking physical poBBession thereof was a ministerial act as to which prohibition would not lie ; and it thus appearing that the proceeding sought to be pro- hibited had been fully terminated prior to the granting of the writ, the writ must be quashed. lb. . 4. Upon the trial of an action brought in the Marine Court of the city of New York by one T. against one S., T. recovered a judgment, which was, upon appeal to the General Term of the Marine Court, reversed, and a new trial or- dered. T. then appealed to the General Term •of the Court of Common Pleas, without giving the stipulation required by ch. 545 of 1874, to the effect that judgment absolute might be ren- dered against him in the event of the affirmance of the order directing a new trial. The Com- mon Pleas affirmed the order of the General Term of the Marine Court, directing a new trial. S. thereupon, claiming that the Common Fleas should have ordered a judgment absolute in his favor, procured a writ of prohibition, re- straining T. and the Marine Court from taking any further proceedings in the action. Upon an appeal from the order granting the said writ — Seld, 1. That in the absence of the stipulation required by the act of 1874, the Court of Com- mon Pleas could not have ordered a judgment absolute in favor of S. 2. That if the appeal could have been taken without any stipulation having been given, the Common Pieas, in considering the case, were, by subd. 2 of § 43 of ch.479 of 1875, vested with a discretion as to the disposition to be made of it, which discretion was not reviewable at a Special Term of the Supreme Court on an ap- plication for a writ of prohibition. 3. That if the relator was aggrieved by any irregularity in the form of the judgment of the Court of Common Pleas, he should apply to that court for the correction of ihe judgment. 4. That if the Marine Court had no authority to proceed further with the case, the relator could protect himself by raising the proper ob- jections and by taking the proper exceptions when the case should be moved for trial, and by correcting any erroneous rulings thereon by ap- peal. 5. That the order granting the writ should be reversed and the writ quashed. — Supreme Ct., (1st Depl.,) JiUy, 1880. People d. Talcott, 21 Hun 591. 1 PROMISSORY NOTES. [Consult, also, BHiLs of Exchasge.] 1. Natube and Eeqtjisites, generally. II. Tbansfers; and Eights or Pub- CHASEBS. ni. Eights and Liabilities op Indgbsbes. IV. Non-negotiable Notes. V. Law of Place. VI. Actions upon Pbomissoby Notes. I. Natube and Eequisites, genebally. 1. What is a negotiable promissory note. The following instrument: "Fourteen and one-half months after date I promise to pay to the order of the American Engine Company |!450, at seven per centum, at the Havana Na- tional Bank, at Havana, N. T., value received, being in part payment for a portable engine, which engine shall be and remain the property of the owner of this note, until the amount here- by secured is fully paid " — Held, to be a negoti- able note, and that it was the duty of the de- fendant (with whom the note had been left for collection) to demand payment thereof of the maker, and notify the indorser of its non-pay- ment. — Supreme Ot., {ith Dept.,) Oct., 1880. Mott V, Havana Nat. Bank, 22 Hun 354. 2. ConBideration. As to the sufficiency of the consideration for a promissory note, see First Nat. Bank v. Tisdale, 84 N. Y. 655. II. Tbansfees ; and Eights op Pur- CHA8EES. 3. TaMng in payment of pre-exist- ing debt. Prior equities of antecedent par- ties to negotiable paper, transferred in fraud of their rights, will prevail against an indorsee who has received the paper in nominal payment of a precedent debt, where there is no evidence of an intention to receive it in absolute dis- charge and satisfaction beyond that of accepting or receipting it in payment, or crediting it on account. — Ct. of App., June, 1880. Phcenix Ins. Co. V. Church, 81 N. Y. 218. ' 4. "What is parting with value. B., P. & Co., being indebted to plaintiff, gave to it their check in settlement of the balance due. The check, on presentation, was dishonored for want of funds. It was presented to the bank on several subsequent occasions, but was not paid, and said firm at no time had funds in the bank to pay it. Defendant executed a note for the accommodation of one W., who indorsed it he- fore maturity to said firm, by whom it was de- livered to plaintiff in part payment of their debt. Plaintiff, at the time, surrendered the check. Held, that such surrender did not constitute plaintiff a bona fide holder for value so as to shut out the defence that the note was wrongfully diverted by the payees from the purpose for which it was made. lb. 5. The authorities holding that the surrender by a creditor of the debtor's own note, on receiv- ing the negotiable note of a third person is a parting with value, collated and distinguished. lb. 6. Diversion of accommodation paper. When a note is made for the general accommodation of the payee and no restrictions are placed upon him as to its use, he may use it in any way which seems beneficial to him, pro- vided it is not negotiated usuriously, and his failure to apply the proceeds according to a prior agreement with the maker constitutes no defence to the latter in an action brought against him thereon. — Supreme Gl., (4 newal of a promissory note held by the former, made by the latter, plaintiff mailed to defendant a promissory note for him to execute and return. This note was dated and executed by defendant at M. in this State, and was made payable there ; it was returned to plaintiff by mail with a check to pay the discount. The discount was at a rate lawful in Pennsylvania, but greater than lawful interest in this state. In an action on the note, — Held, that as the note was executed to be used in Pennsylvania, the law of that state must con- trol, and that, therefore, the note was not usurious.T— Ct. of App., ^epL, 1880. Wayne Co. Savings Bank v. Low, 81 N. Y. 566 ; S. C, 8 Abb. N. Cas. 390.' 12. The defendant, having gone to Illinois to receive money for the plaintiff, forwarded to him from time to time as the money was received, promissory notes, made and dated in Illinois and bearing interest at the rate of ten per cent, per annum, a rate of interest which was lawful in that state. One of the notes was made pay- able in this state ; in the others no place of payr ment was specified. In an action brought upon the notes in this state the defence of usury was set up. Seld, that the validity of the notes was to be determined by the laws of the State of Illinois, and that being valid there, they were valid and enforceable here. — Supreme Ct.,(2d Bept.,) Feb., 1881. Sheldon v. Haxton, 24 Hun 196. VI. Actions upon Pkomissoby Notes. 13. The complaint. An averment in the complaint that the note in suit was, at the in- stance of the holder, " duly presented for pay- ment, and payment thereof demanded, and refused," is sufficient, lo charge an indorser,' although there is no allegation that the present- ment was to the maker, nor that presentment was made at the place where tne note was pay- able.— ,8Weme Ot., [Sp. T.,) Feb., 1881. Chem- ical Nat. Bank v. Carpentier, 9 Abb. N. Cas. 301. 14. Evidence for plaintiff. The com- plaint alleged that the respondent, being in- debted to the plaintifi^ for goods sold, delivered to them a promissory note made by S. & Co., and indorsed and guaranteed by the respondent, It then alleged the non-payment and protest of the note and demanded judgment for the amount due thereon. The defence was that the note was made for the accommodation of the respondent and discounted by plaintiflS at a usurious rate of interest. Upon the trial the court refused to allow plaintiffi to show that at the time the note was delivered to them the respondents stated and represented that the note was a business note, given by the makers to him for bills receivable. Hdd, 1. That the court erred in excluding the evidence, as such representation would, if proved to have been made, have estopped the respond- ent from disputing the validity of the note. 2. That in any event the plaintiffe were entitled to recover the value of the goods sold and delivered to the respondent, for which the note was given. — Supreme Ot., {1st Dept.,) March, 1881. Fleischmann v. Stern, 24 Hun 265 j S. C, 61 How. Pr. 124. 15. Tlie defence of usury. In an action upon a promissory note, wherein the defence was usury, defendant testified that at the time of giv- QUESTIONS OF LAW AND FACT. 235' ing it he paid interest on the amount at the rate of $1 per day for $1000 ; that it was given in renewal of other notes, on which the same rate of interest was paid ; that the same rate was paid on the note given for the original loan, and that all the notes were received hy, and interest paid to the clerks of plaintiff's tes- tator, at his hanking-house. It was not claimed that any part of the interest was paid to the clerks as commissions for their services, or for their benefit in any way, or otherwise than as clerks for the deceased. One of said clerks tes- tified to payments as sworn to by defendant, and that he, witness, made some of the loans by di- rection of the deceased. Seld, that the evidence justified a finding of usury. — Ot. of App., Feb., 1880. Pratt v. Elkins, 80 N. Y. 198. 16. The note in suit was without interest ; it was transferred to plaintiff, together with twelve other notes whiiih were business paper, at the same time and as one transaction, at a discount from the aggregate amount of the notes greater than legal interest. There was evidence tend- ing to show that there was a difference in the vsilue of the notes, some being poor and considered worth but little, while that of the defendant was good, and it was talked that a greater dis- count should be made upon the former. Hdd, that the inference was proper that plaintiff did not deduct from defendant's note at the same rate as from the others ; and as there were no facts from which the referee could say, with the needed legal precision, what was the rate, he could not say it was greater than the lawful rate ; and that, therefore, a finding that there was no usury was justified. — Gt. of App., June, 1880. Bayliss v. Cockcroft, 81 N. Y. 363, 368. 17. Defendant set up in his answer the de- fence of usury, alleging that plaintiff, in discount- ing the notes, charged interest at the rate of from' ten to fourteen per cent. Upon the trial, he offered to prove that they were discounted at the rate of sixteen per cent. Held, that the variance was fatal, and that the evidence was properly ex- cluded.— Supreme a., '{ith Dept.,) Oct., 1880. Farmers', ^c, Nat. Bank v. Lang, 22 Hun 372. As to Sills of exchange, and Checks, see thos& titles. For rules governing the admissibility of Parol evidence to explain or vary a promissory note, se& Evidence, II. As to when taking a note will operate as Pay- ment, see Payment. As to Premium notes, see Insurance, 50-53. As to the power of a married woman to bind! her Separate estate by a promissory note, see- Husband and Wife, 18. PROTEST. O! Negotiable paper, see Biixs 01' ExOHANCiBy 9-10 ; Peomissoby Notes, 8, 9. PROVISIONAL REMEDIES. For decisions relative to the various provi- sional remedies, provided by the Oode of proce- dure, see their titles, such as Abbest ; Attach- ment ; Injunction ; Eeceivbes, &c. PUBLICATION. Of Oily ordinance, see New York City, 2. Of Wills, see Wills, 2-4. Service of process by, see Process, 4-9. PUNISHMENT. TBL4.L, VIII. Q. QUESTIONS OF LAW AND FACT. [Consult, also, Tbiai,, VI. ; and the titles of the various remedies and rights of action.] 1. Questions of law for the court. As to when the question of negligence is one of law, seeEiceman v. Havemeyer, 84 N. Y._647. 2. Questions of fact for_ the jury. In an action to recover damages for alleged negligence, plaintiff is entitled to have the issue of negligence submitted to the jury when it depends upon conflicting evidence, or on in- ferences to be drawn from circumstances in re- gard to which there is room for a difference ot opinion among intelligent ™e°---C*- ?/ -^PPy Jam., 1881. Payne v. Troy, &c., R. K. U)., S6 N. Y. 572. , ... * J 3. When a jury may infer an intent to de- fraud the inquirer by means of a false state- ment, and when the question should be sub- mitted to the jury, see Meyer v. Amidon, 23 Hun 553. . „ j » j ., 4 When the question of the defendants prudence in relying upon fraudulent represen- tations, should be submitted to the jury, see- Greene V. Hallenbeck, 24 Hun 116. 5 Mixed questions of law and fact.. In an action for libel it is for the court to de- termine whether the alleged libel was a privi- lesed communication; but the questions ot good faith, belief in the truth of the statement,, and the existence of actual malice remain for the iury. The rule is the same where the al- leged libelous charge is made against a pubhe officer as such.-Oi. of App., June, 1880. Ham- ilton V. Eno, 81 N. Y. 116, 122. 236 QUO WAERANTO— EAILROAD COMPANIES, I. QUIETING TITLE. CSlotjd on Title. QUO WARRANTO. 1. The jurisdiction and power of the ■courts was not affected by the provision of the Code of Pro., ^ 428, abolishing the writ of ^Mo warranto and proceedings by information in the nature thereof; it is only the form of the proceeding that was done away with. The rem- edies theretofore had in those forms may now be obtained by civil action. As to whether the jurisdiction of the courts in those matters can be affected by legislation, qy/jere. — Ct. of App., Feb., 1880. People, ex rel. Hatzel, v. Hall, 80 N. Y. 117. 2. Evidence — burden of proof. In an action in the nature of a quo warranto, as be- tween the relator and the defendant, the burden is upon the former to make out a better title to the o£Bce than that of the latter ; while, as be- tween the people and the defendant, the latter may be called upon to show that his possession of the office is lawful. The production of a certificate of election from the proper officer is, however, sufficient. — Cl. of App., Feb., 1880, People, ex rel. Watkins, v. Perley, SON. Y. 624. R. RAILROAD COMPANIES. I. lucoEPOEATioiy, Organization, aud Powers, generally. II. AcquiRiiro Eight op Way, and Con- structing THE BOAD. 1. Proceedings to acquire tiUe. 2. Fences, crossings, and cattle-guards. ni. Eights, Powers, and Duties op Oiti- CEHS, Agents, aitd Sebvants. IV. Powers, Duties, and Liabilities in Eespect to the Management op THE EOAD. 1. Under the contract to carry. 2. JAabilities for injuries caused hy neg- (a) In general. (6) Injuries to passengers. (e) Injuries to persons crossing the track.' (d) Injuries to employees. 3. Mdalive rights and liabilities of con- necting lines. V. EoBSE AND Street Eailroads. I. Incorporation, OROANizATioif, Powers, generally. AND 1. Powers of the legislature over railroads. A railroad corporation cannot, by ■contract, when no statute authorizes it so to do, bind itself to a particular mode of propelling power, regardless of the interests of the people, which may require it to adopt a different one. — Supreme Ct., (Sp. T.,) June, 1880. People v. Long Island E. E. Co., 60 How. Pr. 395 : 8. C. 9 Abb. N. Cas. 181. ' 2. Validity of railroad leases— legis- lative permission. A railroad corporation. organized under the general railroad act, has no authority, without the consent of the legis- lature, to lease its road to an individual ; and where it has so done it is responsible to the public for the manner of operating the road ; as to the public, those operating it must be re- garded as agents of the corporation. — Ct. of App., Feb., 1880. Abbott v. Johnstown, &c., E. E. Co., 80 N. Y. 27. 3. The riglit of incorporation conferred un- der the general law, like a special charter, is in the nature of a, contract. In return for the powers and franchises granted, the corporation is placed under obligations to perform certain duties to the public, and it cannot, without the consent of the other party to the contract, change its terms or absolve itself from its obli- gations, lb. 4. The clause in the act of 1864 (Laws of 1864, ch. 582, | 2,) requiring that where the railroad of any railroad corporation shall be leased to any other railroad, the lessee shall perform certain acts, does not confer power to lease, but applies only when such power has been conferred. Accordingly — HM, where a railroad corporation so organized had leased its road without legislative authority, that it re- mained liable for injuries caused by the negli- gence of those operating the road. lb. 5. It seems that it is coinpetent for the legis- lature, in granting permission to lease, to trans- fer all or any liability to the lessee. lb. Q. Foreclosure of railroad mort- gages. Notwithstanding the facts that ordi- nary proceedings may be entirely inadequate for the foreclosure and sale of a large railroad property, and that it is proper for the parties to adopt a suitable mode for saving the property, and its use by a new organization created in their interest, and that such a course is sanctioned by the statutes, yet there must be no discrimination against those who do not ap- prove of the plan. — Supreme Ct., (I^.'T.,) , March, 1878. De Betz's Petition, 9 Abb. N. • Cas, 246. 7. It is the duty of the trustees on such fore- closure to see that the property is not burdened with unjust demands or unnecessary expendi- tures. The fact that they may be ready to con- RAILROAD COMPANIES, I., II. 237 test an^ item to which the bondholders may call their attention, is not enough, lb. 8. For further decisions as to the foreclosure of railroad mortgages ; the duties of the trustees in such cases ; and the rights of the bondholders, see James «. Cowing, 82 N. Y. 449 ; reversing 17 Hun 256 ; Maas v. Missouri, &o., K'y Co., 83 N.' Y. 223 ; McHenry's Petition, 9 Abb. N. Cas. 256. 9. Rights of stockholders on re-or- ganization. The provision of the act of 1853 in reference to the foreclosure of railroad mort- gages, (Laws of 1853, ch 502, § 2,) which pro- vides that a stockholder of a railroad company may, within six months after a sale of its road under foreclosure, on paying to the purchaser a proportion of the' price paid equal to the pro- portion his stock bears to the whole stock of the company, have the same relative amount of stock or interest in the company, its road, fran- chises and other property, &c., was repealed by the act of 1854, amending the general railroad act, {Laws of 1854, ch. 282,) and by the act of 1874, (Laws of 1874, ch. 430,) "to facilitate the re-organization of railroads sold under mort- gages," &c.—Ct. ofApp., March, 1881. Pratt v. Munson, 84 N. Y. 582. , 10. Rights of holders of mortgage bonds. Under the provision of the general railroad act, (Laws of 1850, ch 140, ? 28, subd. 10,) authorizing a corporation organized under it to borrow moneys necessary for completing, finishing or operating its road, to issue and dis- pose of its bonds, and to mortgage its property and franchises " to secure the payment of any debt contracted for the purposes aforesaid," a railroad corporation may pledge its bonds for moneys loaned, and also as security for a pre- cedent debt incurred for moneys borrowed for the purposes specified. — Ot. of App., March, 1881. Duncomb v. New York, &c., K. E. Co., 84 N. Y.190. 11. Upon foreclosure of a mortgage given to secure its bonds, a holder of bonds so pledged as collateral is not limited to proof of an amount simply equal to the amount of his debt, but is entitled to prove the whole amount of his bonds, and to share in the distribution accordingly up to the amount of his debt. lb. 13. Forfeiture of franchise by non- user. Where a corporation, organized under the general railroad act, leases a portion of the route covered by its franchise to another corporation, with the right to lay tracks there- on, not for the purpose of constructing the road of the lessor, but to enable the lessee to com- plete its own road, the tracks, when built, not to belong to the Ipssor or to be operated by it, but to be constructed at the expense of, and to be operated and maintained for the use of, the lessee exclusively, this is not such a user by the lessor of its franchise as is contemplated by its charter; and in determining the question whether the corporate existence and powers of the lessor have ceased because of failure to be- gin the construction of its road, and to expend thereon ten per cent, of the amount of its capi- tal within five years after filing its articles of association, as prescribed by the act of 1867, (Laws of 1867, ch. 775,) the construction and expenditure by the lessee upon the portion of the route so demised cannot be taken in to con- sideration.— tt. of App., June, 1880. Matter of Brooklyn, &c., K. R. Co., 81 N. Y. 69. 13. Such a corporation cannot retain its cor- porate existence without the expenditure so re- quired, by granting to another company the- privilege of laying tracks over such parts of its- route as the other company may desire to use. /6, IL AcqiriEiNa Right of Way, asd Con- structing THE Road. 1. Proceedings to cuiquire title. 14. Acquiring land by purchase. When, by a conveyance of land to a railroad, an absolute title thereto is conveyed, see Kenney v.. Wallace, 24 Hun 478. 15. Proceedings for appointment of commissioners. Consent of property- o^wners. To authorize a General Term of the- Supreme Court.acting under ch. 582 of 1880, to ap- pomt commissioners to determine whether and in what manner an underground railroad shall be constructed, it must be shown affirmatively, by a statement of the facts, that application for the consent of the owners of the property bounded on the line of the proposed railroad has been made and refused, and that the persons to whom, the same was made were, in fact, the owners of at least one-half in value of such property. — Su~ preme Ot., {1st Dept.,) Feb., 1881. Matter of Broadway Underground E'y Co., 23 Hun 693. 16. A statement that the afSant has endeav- ored, but failed to obtain the consent of one-half in value of the property-owners, and that he be- lieves such consent cannot be obtained because such owners prefer that the railroad should be- built under the guaranties that would be afibrded by a proceeding under the statutes for the ap- pointment of commissioners, is insufficient. lb, 2. Fences, crossings, and catile-gua/rds. 17. Fences. The remedy of an owner of land crossed by a railroad, for a failure on the part of the corporation to comply with the pro- vision of the railroad act of 1854 (Laws of 1854, ch. 282, J 8,) requiring railroad corporations to erect and maintain fences on the sides of their roads, is not confined to an action for damages- given by said act ; but he may enforce the per- formance of this duty. — Ct. of App., Julie, 1880. Jones V. Seligman, 81 N. Y. 190, 194. 18. Farm crossings. A railroad corpo- ration in the discharge of its duty of providing farm crossings is not vested with any absolute discretion as to the number or character of th& crossings. The power must be exercised in a proper manner, having due regard to the neces- sities and the convenience oftheownerofthe land, who may maintain an action to compel the cor- poration to erect necessary and suitable crossings ;. or where crossings have been made which are insufficient, to construct additional ones ; and in such an action the question as to the propriety of additional crossings is one of fact for the court. 76. 196. 19. The court has power to direct the con- struction of a crossing under the tracks of the road. lb. 20. The award and payment of damages in proceedings to condemn land taken for the road, does not preclude the former owner from main- taining an action to compel the corporation to fulfill the duty imposed upon it as to crossings. 16. 238 KAILROAD COMPANIES, II., III., IV. 21. Where a railroad has been taken posses- •sion of under a mortgage, by trustees for bond- holders, and is being operated by them, and where, by the mortgage, power is given to them to make repairs and additions to the road, they may be held for a performance of the duties im- posed by said provision. lb. 22. Highway crossings. A railroad corporation is not relieved from the duty im- posed upon it by the general railroad act (Laws of 1850, oh. 140, ? 28, subd. 5,) to restore a high- way intersected by its road "to such state as not unnecessarily to have impaired its usefulness " by the fact that a street railway company whose road runs along the highway, is obligated to keep the highway between the rails of its track in repair. The duty of maintaining the cross- ing in proper condition is riot limited or re- •strioted by privileges granted to, or duties im-, posed upon others. — Ct. of App., March, 1881. Masterson v^ New York Central, &c., E. K. Co., 84 N. Y. 247. 23. The provision of the general railroad act (Laws of 1850, ch. 140, § 28,) giving to every railroad company authority to construct its road .across any street or highway which the route of its road shall intersect, was not repealed by im- plication by the acts of 1869 and 1874, providing for the laying out of the highways or avenues, known as "Ocean Parkway" (Laws of 1869, •ch. 861 ; Laws of 1874, ch. 583,) so far as it per- tains to those highways ; they are highways within the meaning of the railroad act, and railroads have the same authority to cross them as they have to cross other highways. — Ot. of App., March, 1881. Stranahan «. Sea View E'y €o., 84 N. Y. 308. 24. The act of 1871 (Laws of 1871, ch. ■609,) declaring that "no railway upon which locomotive steam shall be used, or is or shall he authorized or intended to be used as a motive power," shall be constructed across certain avenues therein mentioned, without the approval of the state engineer, has no application to that portion of " Ocean Parkway " constructed uiider said act of 1874. lb. 25. The said act of 1871 has reference to railroads moving cars in the ordinary way by means of locomotive engines, it does not include railways moving their cars by a propelling rope or cable attached to stationary power. Accord- ingly — Hdd, that a railroad corporation organ- ized under the act of 1866 (Laws of 1866, oh. 697,) for the purpose of constructing an elevated railroad to be operated "by means of a pro- pelling rope or cable attached to stationary power," had authority under the said provision 'of the general railroad act, which by said act of 1866 is made applicable to corporations organ- ized under it, to cross that portion of " Ocean Parkway" constructed under the act of 1874, which was intersected by the route of its road. i6. Ill, Eights, Povfers and -Duties oi' Or- FICBBS, AgEHTS and SERVANTS. 26. The president of a railroad cannot occupy th(j position of contractor to claim pay- ment for work done, and that of engineer to certify to its completion and the amount due. To permit him to do so is a dereliction of duty on the part of those having charge of the in- terests of the company. — Supreme Ct,, [Brooklyn Sp. T.,) Dec., 1880. Keeler v. Brooklyn Elevated E. E. Co., 9 Abb. N. Cas. 166. Compare Barnes V. Brown, 80 N. Y. 527. 27. Where the president of a railroad cor- poration received the notes of the corporation secured by its bonds delivered as collateral for a sum due him upon his salary — Held, 1. That such a debt fairly and honestly incurred could be so secured ; and that he was entitled to prove such bonds. 2. That one to whom bonds were pledged as security for an indebtedness for rent of offices was entitled to prove them; that a business office was essential and necessary and was em- braced within the authority to issue bonds. — Qt. of App., March, 1881. Duncomb v. New York, &o., E. E. Co., 84 N. Y. 190. rv. Powers, Diities and Liabilities m Eb- SPECT to the Management op the Eoad. 1. Under the contract to carry, 28. Tickets, and the right to stop over. The holder of a limited ticket, bearing an agreement upon its face that it was good only between the date of its purchase arid the end of the day designated by>.the punch mark on its margin, is not entitled to use such ticket after the expiration of such date, if it be the fault of the passenger that the ticket has expired before he has arrived at his destination. — Com. Pleas, Jan., 1881. Auerbach v. New York Central, &c., E. E. Co., 60 How. Pr. 382. ' 29. Where a passenger, upon applying for information to a train agent or conductor, is in- formed by him that he may get off at a station and continue his journey by the next train upon the same ticket, and the passenger relying upon the said statement, leaves the train at that sta- tion, the company is bound to carry him on the next train to the end of his route upon that ticket, and is estopped from denying the authority of the conductor to make the said agreement. — Supreme Ot., (3d Dept.,) Jan., 1881. Tarbell v. Northern Central E'y Co., 24 Hun 51. 30. Liability for ejecting passenger from car. It seems that where, in consequence of the fractious refusal of a passenger upon a railroad to pay the full fare the company has a right to demand, the train is stopped for the sole purpose of putting him off, he is not entitled to insist on continuing his trip, on paying the fare, but may be removed from the train. But where the train stops at a regular stopping place, and the passenger, before being ejected, or others in his behalf, offer to pay the full fare, it is the duty of the conductor to accept it ; and if he refuses and ejects the passenger, the company is liable. —a. of App., Fa., 1880. O'Brien v. New York Central, &c., E E. Co., 80 N. Y. 236. 31. Liability for passenger's bag- gage. Plaintiff went to defendant's depot in Philadelphia with nine trunks, to take passage with his family to Chicago. He applied to the baggage-master for checks for his baggage, but was informed that he must first procure tickets ; while he was absent for that purpose,, the baggage-master caused his baggage to be weighed, checked and put into the ba^gage-oar. Upon the return of plaintiff with his tickets, he was informed, that under the rules of the com- pany, the tickets were not sufficient to transfer RAILROAD COMPANIES, IV. 239 all his ba^^age and for the excess a charge was made, which p'laintiff refused to pay. He de- manded his checks ; these were refused unless the extra charge was paid. He then demanded his trunks, bat the baggage-master refused to deliver them, for the reason that they were covered with other baggage and could not be reached before the time for starting the train. Plaintiff declined to.go on the train ; his baggage went through to Chicago, and the night after its arrival, the depot was struck and set on fire by lightning, and it, with the baggage, except two trunks and some loose articles, was destroyed. The trial court found that there was no reason- able excuse for the refusal to restore the baggage to plaintiff. In an action for the conversion of the baggage — Hdd, that the facts authorized a finding of a conversion at Philadelphia. — Qt. of App., March, 1880. McCormick v. Pennsylvania Central E. B. Co., 80 N. Y. 353. 32. It appeared that after plaintiff had determined not to take the train, he called upon defendant's president and requested him to cause the baggage to be taken off at Pittsburg, as he intended to stop there. The president gave the necessary directions and the baggage-master telegraphed to Pittsburg, but the baggage was not stopped. The baggage-master also gave to plaintiff an order for the delivery of the baggage at Pittsburg without checks. During the same day plaintiff requested the baggage-master at Philadelphia, to countermand the order to stop the baggage, as he had concluded to go through to Chicago without stopping. Plaintiff took a train the same evening. On arriving at Pittsburg he presented the order and was informed that the baggage had gone on. He expressed his grati- fication and took an order from the baggage- masler to the one at Chicago, directing the delivery of the baggage without checks. Upon his arrival at Chicago he claimed and took pos- session of the baggage saved. Held, that by the acts of plaintiff subsequent to the conversion, he resumed control of his baggage in the con- dition it was on board the train, and elected to hold defendant as carrier ; that, as such, it was not liable for the loss, and for the original con- vei'sion was only liable in nominal damages. lb. 2. lAahUityfor injuries caused by negligence. (o) In general. 33. Injuries to cattle in course or iransportation. Plaintiff's cattle were trans- ported by defendant from B. to W. A., under a contract which provided, among other things, that in consideration of a reduced price for transportation, plaintiff would assume the risk of damage sustained by delay in transportation ; also that pl»ntiff should load and unload at his own risk, defendant furnishing help, and that plaintiff should send a person with the cattle to ■take charge of them. The train was delayed by a flood which submerged the track, and the cattle being without food were injured. In an action to recover damages for the injury — Hdd, that defendant was not bound to unload the cattle when the train was stopped, but that it was its duty, upon reasonable request, to so place the cars in which the cattle were as to be convenient to the usual and accessible means of unloading, if practicable, and for a failure so to do it was liable.~Oi!. of App., Feb., 1881. Bills v. New York Central, &c., K. E. Co., 84 N. Y. 5. 34. Plaintiff's agent made such a request. The engine drawing the train was disabled. It appeared, however, that defendant had engines at U., forty-three miles distant ; also that other motive power might have been readily obtained. The court, after referring to the evidence on this subject, and to a statement of defendant's conductor that he did not telegraph to U., sub- mitted it to the jury as a question of fact whether it was not gross negligence for defend- ant to omit to send for assistance if help could readily have been obtained. Held, no error ; and that this was so even if the fair import of the charge was that the jury might determine that it was negligence not to send for assistance to U. lb. 35. The engine of the train was disabled by the engineer running it into the water, and there was evidence tending to show negligence on his part in so doing. The court charged that if the engine was disabled by the negligence and reck- lessness of defendant's agents, then their refusal to place the cars where plaintiff could unload, was not to be excused by an absence of motive power. Held, no error; that defendant could not plead its own previous negligence as an ex- cuse for its inability to perform a distinct and affirmative duty. lb. ' 36. Plaintiff's damages could not be miti- gated, by speculating upon what might have happened had his request been granted and the cattle unloaded, lb. 37. When the train was at U., and those on board were warned of the high water, plaintiff's agent requested the conductor to place the cars therein a convenient position for unloading. This request was declined. The court was asked, but declined to charge, that defendant was not liable for such refusal. It charged, however, that if the jury believed the conductor had reason to think he could run the train through without serious detention, defendant would not be liable because of such refusal. Hdd, no error. lb. • _ 38. Killing stock on track. As to the liability of a railroad company for an animal killed on its track, through its neglect to main- tain cattle-guards and fences, and when interest on the value of the animal killed will be al- lowed, see Lackin v. Delaware and Hudson Canal Co., 22 Hun 309. (b) Injuries to passengers, 39. Oare required from the com- pany. A passenger, when taking or leaving a railroad car at a station, has a right to assume that the company will not expose him to un- necessary danger, but will discharge its duty which requires it to provide passengers a safe passage to and from the train. — Ot. of App., March, 1881. Brassell v. New York Central, &c., E. E. Co., 84 N. Y. 241. 40. Contributory negligence of pas- senger. A passenger is not in all cases liable to the charge of contributory negligence because he attempts to cross an intervening track with- out looking for approaching trains. lb. 41. Defendant ran a train upon its road daily from 8. to E. S., primarily for the purpose of carrying its employees to E. S., where it had a machine-shop and freight-house. It carried, how- ever, on this train persons going as ordinary pas- sengers, on payment of fare, and it was in charge of a uniformed conductor. There was a station- 240 RAILROAD COMPANIES, IV. house at E. S , on the aputh side of the road. This train did not stop at the station, but at a point thirteen hundred feet further east, opposite the freight-house located north of the road. At this point there were about twenty tracks. The road was not planked, and there was nothing to in- dicate on which side passengers should leave the train. E., plaintiff's intestate, a girl seventeen years of age, took this train, in company with an old lady, at S., to go to E. S., where she resided. The train stopped at the usual place on the third track from the south. The two south tracks were used for ordinary passenger trains. E. got off on the south side of the train, and as- sisted her companion to alight. There was a path about seventy feet west, leading south to or near the house where she was employed, which was south of the road. The two walked a few steps in a southwesterly direction, until they reached the second track, when a passen- ger train from the east, which was behind time and running thirty-five or forty miles an hour, struck and killed them both. In an action to recover damages the evidence tended to show that they did, not look to the east after leaving the car, and that if they had done so they could have seen the approaching train ; also, that no ■person connected with the train gave any in- structions to passengers where to alight, or any warning of the approaching train. Hdd, the fact that the deceased did not look, while it was a material and important one for the considera- tion of the jury upon the point -of contributory negligence, did not establish it as matter of law, and that a refusal of the court to charge that it was per se negligence was not error. lb. 42. Company not liable for negli- gence of postal-car of9.cial8. A rail- road company is not liable to a passenger who, while entering the station for the purpose of taking an approaching train, is struck and in- jured by mail bags carelessly and negligently thrown from the mail car by a postal clerk em- ployed by the United States government. — Su- preme Ot., {SdDept.,) Jan., 1881. Carpenter v. Boston and Albany E. E. Co., 24 Hun 104. (o) Injuries to persons crossing the track. 43. Duty to look out for the tra,in — absence of flagman. Where a person sees an engine upon a railroad, and knows, in time to avoid an injury, that it is approaching a crossing, the railroad company is not charge- able with negligence in not ringing the bell upon the engine, or because of the absence of a flagman usually stationed at the crossing, or the absence of a light upon the engine in the night time ; as ihe sole object of ringing the bell or of keeping a flagman or of having a light, so far as travelers upon a highway are concerned, is to notify them of the approach of trains. — a. of App., Nov., 1880. Pakalinsky v. New York Central, &c., E. E. Co., 82 N. Y. 424. 44. Plaintiff, in attempting to cross the tracks of defendant's road, after dark, caught his foot between a rail and the planking, and before he could extricate himself was struck by the tender of an engine backing upon the track, and injured. In an action to recover damages the negligence charged was that the bell of the engine was not rung, that there was no flagman at the crossing, although one had usually been stationed there ; that the regular fireman was not at the time upon the engine, and that there was no light on the rear of the tender. Plain- tiff testified that he saw the engine while it was standing still, and when it was backing. He could have passed over the track in safety if his foot had not caught. It did not appear and was not claimed, that the engineer could have seen plaintiff in time to have avoided the acci- dent, and it did not appear that the absence of the fireman in any way cor^ributed to the acci- dent. Held, that the evidence failed to show any negligence on the part of defendant which caused or contributed to the injury ; and that a charge to the jury that they could base a find- ing of negligence against defendant on the ab- sence of the flagman was error. lb. (d) Injuries to employees. 45. Injuries occasioned by defect- ive machinery. The duty of maintaining machinery in proper repair for the protection of employees operating it, devolves upon the master, and he is liable for injuries resulting from a failure to perform it. Therefore — Held, where an engineer upon a railroad locomotive was killed by an explosion of a boiler which had been for some time out of repair, and had been frequently reported and sent to the repair- shop for repairs, that defendant who was ope- rating the road was not excused from liability by the facts that there was no negligence on his part in the employment of a superintendent of repairs, or in omitting to make proper regula- tions, that the master mechanic having charge gave proper instructions for the thorough ex- amination and repair of the engine, and that the negligence causing the accident was that of the mechanics directed to make the repairs. — Ot. of App., Feb., 1880. Fuller v. Jewett, 80 N. Y. 46. 46. Where two or more persons or corpora- tions are operating a railroad, their liability to an employee for an injury resulting from de- fective machinery furnished by them for use in the course of his employment, is several as well as joint, and an action is maintainable against one of them. — Ct. of App., April, 1880. Kain v. Smith, SON. Y. 458. 47. Every railroad operator owes to bis em- ployees a duty to furnish machinery adequate and proper for the use to which it is to be ap- plied, and to maintain it in like condition. For every injury happening by reason of neglect to perform this duty, he is liable as for a tort ; and this whether the act or omission causing it was due to his personal neglect, or the neglect of an agent employed by him, and whether there were one or more parties concerned as operators or employees. lb. 48. Where the employee of a railroad cor- poration was injured by the sudden starting of a locomotive, caused by its being defective and out of repair, of which defects the corporation had notice — Hdd, that it was no defence that the engineer could have so managed the engine as to have prevented the accident. — Ot. of App., June, 1880. Cone v. Delaware, &o., B. E. Co., 81 N. Y. 206. 49. — by act of co-servant. This ac- tion was brought to recover damages for an in- jury alleged to have been occasioned by the de- fendant's negligence. The plaintiff had, for several years prior to the accident, been em- ployed by the defendant as a yard switchman, it being his duty to break up the trains coming RAILROAD COMPANIES, IV. 241 into the yard, and shift the fcars to outgoing trains, - or to the repair-shop, according to the directions contained on a card furnished to him by the yard dispatcher, whose duty it was to order sent to the repair-shop all cars marked as out of repair by the car inspector. At about four o'clock in the morning of March Ist, the plaintiff, while coupling a coal car to an out- going train, caught his glove upon a piece of iron projecting from the bumper of the coal car, and had his hand crushed. He claimed that the car inspector was negligent in not dis- covering that the bumper of the coal car was out of repair, and ordering it sent to the shop instead of ordering it sent out with another train. Held, that the plaintiff and the car in- spector were co-servants, engaged in a common service, and that the defendant was not liable for the neglect of the car inspector to discover this particular defect. — Supreme Ot., (3d Dept.,) Sept., 1880. Gibson v. Northern Central B'y Co., 22 Hun 289. 50. The car inspector, a, man of thirty-four or five years of age, had, prior to his coming to this country, been employed as a common la- borer, except for a few months, when he had worked in a railroad yard, p utting brasses into freight cars. Upon entering the defendant's employment, he had no knowledge of machi- nery, and worked in the carpentert shop, bolt- ing, putting in brasses and boxes, and assisting in the shop. After so working for from one to two years, he was made car inspector. His so- briety and intelligence were unquestioned. Held, that the evidence failed to show that he was incompetent to act as a car inspector, or that the master of the repair shop was guilty of negligence in appointing him to that posi- tion. Jb. 51. In an action to recover damages for an injury received by an employee of defendant, through its alleged negligence, it appeared that plaintiff was employed in loading and unload- ing a dirt train ; the train had been standing for about an hour on a down grade while being loaded. The evidence showed that not all, and tended to show that but two of five brakes upon the cars of the train were set. Those employed in loading were directed to get aboard, and while climbing on the cars, from some cause they started, and plaintiff, who was between two of them, attempting to get aboard, was injured. It appeared also that the brakes, although not the best in use, were such as were in common use on dirt cars, and that they had been in- spected and put in order a short time before the accident ; also that the cars were suitable for the purpose for which they were used. There were two brakemen on the train whose duty it was to look after and apply the brakes. It was not shown that they were incompetent. Held, that the court erred in refusing to %iismiss the com- plaint ; that the jury were not justified in find- ing that the movement of the cars was attribu- table to any defects in the brakes ; but the only reasonable inference was that it was owing to the fact that only part of the brakes were set ; and if the injury was caused by the neglect of . the brakemen in this respect, it was the negli- gence of co-servants, for which the defendant was not liable.— C«. of App., Jvrn, 1880. Henry V. Staten Island K'y Co., 81 N. Y. 373. 52. At the time of the movement of the cars, the engine was standing on the track, reversed, the engineer was upon the tender of the engine^ calling to the men, the movement pushed the engine forward a few feet, the fireman let on a little steam, and the engine backed the train about the distance it had moved forward, and on the engine being again shoved forward, the fireman again backed it. This was repeated two^ or three times. The evidence was not clear as to the precise time plaintiff was injtired. He was between the cars when they first moved for- ward. The evidence was to the effect that this handling of the engine was proper under the circumstances. Held, that, assuming plaintiff. was injured by the backing of the train, the evidence failed to show that the conduct of the fireman was not discreet and prudent. lb. 53. It was claimed that defendant was neg- ligent in not sending out a conductor with the train ; that if one had been sent the engineer would have been upon the engine, and might have managed the train, more skillfully. Held, that upon the facts proved, no presump- tion arose that if the engineer had been upon the engine the accident would not have hap- pened, lb. 3. Relative rights and liabilities of connecting lines 54. Contracts and leases bet'ween them. As to whether ». lease by a railroad corporation of a portion of its route to another corporation, with the right to lay tracks, is valid, qwsre. — Ct. of App., June, 1880. In re Brooklyn, &c., E'y Co., 81 N. Y. 69. 55. Liability of lessee for negli- gence. Defendant was operating, as lessee, the road of another railroad corporation, which was built under the act of 1850. (Laws of 1850, ch. 140.) The road was laid through a street in the city of U., which was not restored to its former state, as required by said act, (§ 28, subd. 5,) the rails being left projecting about four and one-half inches above the surface of the street, without any planking or filling between them, M., plaintiff's intestate, was peddling kindling wood in said street, with a horse and wagon, which he left near the sidewalk, while he stepped across the walk, about six feet from the wagon, to solicit a purchase. An approaching train frightened the horse, which ran diago- nally across the railroad track. The hind wheel of the wagon caught upon and slid along the further rail. About the time the horse started the attention of M. was called to the approach- ing train, then between two hundred and three hundred feet distant. He at once ran to catch his horse. He crossed the track, seized hold of the harness of the horse, when the engine struck the hind wheelof the wagon, and M. was thrown upon the track and killed. The rails in use at the time of the accident were laid by defendant. An or- dinance of the city prohibited defendant from running its trains through the city at a rate ex- ceeding eight miles an hour; the train was running about twelve miles an hour. In an ac- tion to recover damages — Held, that the evi- dence justified a finding of negligence on the part of defendant, and of the absence of con- tributory negligence on the part of M. ; that in the absence of proof that the horse was vicious, unsafe or unmanageable, it was not negligence per se for M. to leave his horse unfastened when he was near enough so that he might reasonably expect to control him, in an emer- gency, by his voice, or to reach him before he 242 EAILROAD COMPANIES, IV., V.— RECEIVERS. tsould escape ; also, that it could not be said, aa matter of law, that he violated an ordinance of the city which forbade any person leaving a horse in the street unless securely tied ; also, that defendant could not escape liability for the 'Condition of the road because it was lessee. — Ct. •of App., Feb., 1880. Waamer v. Delaware, &c., B. B. Co., 80 N. Y. 212. , 56. It seems that even if M. was chargeable with negligence in leaving his horse in the street, this could not defeat the action, as such negligence was not in any proper sense the im- mediate or proximate cause of the accident. lb. V. HoB8£ Am) Street Baii.boads. 57. Horse railroads. The provisions of the act of April 2d, 1850, in relation to the lia- bility of railroad companies for injuries to pas- sengers while on the platform, &c., does not ap- ply to street railroads. — Superior Ct., Dec., 1880. Lax V. Forty-second street, &o., E. B. Co., 46 Su- perior 448. 68. Elevated railroads. That the au- thorities of Kings county cannot restrain the construction of an elevated railroad over the Ocean Parkway to the Concourse, see Super- visors of Kings County v. Sea View B'y Co., 23 Hun 180. For decisions applicable to railroad companies In common with other carriers, see Cabkiees. For decisions upon the validity of Municipal bonds in aid of railroads, issued under the Tovm bonding laws, see MuNicrPAx Cobpobations. 28-32. RATIFICATION. Of act oi Agent, see PamciPAi and Agent, 12, 13. ' REAL PROPERTY. [Embraces only general principles relativeto title. Md the nghts and liabilities of the owner in the use ■of realty. See heads referred to at end of this title.] 1. Title to land submerged by the sea If hin.l once submerged by the sea shall again be left by the reflex and recess of the sea, the owner shall again have his land as before, if he can make out where and what it was. Al- though while the land continues covered by the 'i^*j*u^ 'it'e is in the sovereign, yet when the land by natural means emerges, the title of the origmal owner is restored— &preme a., (2d PjPi- SP- T.,) May, 1881. Murphy ». Norton, 61 How. Pr. 197. 2. Bights of owner in regard to drainage. The right of an owner of lands through which a water-course runs, to have the same kept open and to discharge therein surface water which naturally flows thereto, is not lim- ited to the drainage and discharge of 'such water into the stream in the precise manner it was dis- charged when the land was in a state of nature. He may change and control the natural flow of the surface water on his lands, and by ditches or otherwise accelerate the flow, or increase the volume of water which reaches the stream, and if he does this in the reasonable use of his lands, and does not discharge the water into the stream in quantities beyond its natural capacity, he ioi- cursno liability to a proprietor below him. — Ct. of App., Jvme, 1880. McCormick v, Horan, 81 N. Y. 86, 89. As'to the capacity to Hold and Tranter tide to land, see Auiais ; Descent ; Devbej Hus- band AND Wife, VI. ; Infants, 2-13 ; Muni- cipal Cobpobations, 2, 3. For decisions as to How title to land may be acquited and transferred, see Adyebse Posses- sion; Dedication; Deeds; Eminent Do-; main; Fbaudulent Conveyances; Most- gages; Paktition. As to Suceetdon to real property, and. the rights of heirs and devisees, see Descent ; De- vise; Executohs and Administbatobs ; Tbusts ; Wills. As to the VaMdity of contracts relating to land, generally, and under the provisions of the Stat- ute of Frauds, see Contbaots, 7-14 ; Land- lord AND Tenant ; Leases ; Vendor and PUBCHASEB. For decisions relative to Boundaries,' Ease- ments. Fixtures, Water-courses, see those titles'. As to Wrongs relating to real property, see Nuisance ; Trespass. RE-ARGUMENT. Appeal, 132. RECEIPTS. For decisions upon questions growing out of the relation of Debtor and creditor, and as to what constitutes Payment, and its effect, see Debtoe and Creditor ; Payment. RECEIVERS. [Consult, also. Banks, V. ; Cobpobations, VII. ; ExBODTiON, 31-37; Ihsubanoe, 94-103; Mahxt- VAcnraiire Companies, IV. ; Fabtitebship, V.] 1. When a receiver may be ap- pointed. Where an action is brought by a judgment creditor to reach certain shares of mining stock, claimed to belong to the judgment debtor, but which are, at the time of the com- mencement of the action, standing on the com- pany's books in the name of his wife, the creditor has such "an apparent right to or interest in" the stock, as to entitle him to apply, under Code of Civ. Pro., I 713, ,for the appointment of a receiver thereof, ^hen there is reasonable grourid toapprehend that before the suit can be deter- mined the stock will be removed beyond the jurisdiction of the court, or lost in sonie adverse turn of the defendant's affairs. — Supreme Ct,, (4«A Dept.,) Jan., 1881. State Bank of Syra- cuse V. Gill, 23 Hun 410. 2. The fact that a receiver of the judgment debtor's property has already been appointed in proceedings supplementary to execution, does not bar such an application, nor does it make it necessar;y that the same receiver should be ap- pointed in granting it. lb. RECEIVERS. 243 3. When a receiver may be appointed in an action brought for the purpose' of having set aside a conveyance of real property, see Mitch- ell V. Barnes, 22 Hun 194. 4. Who is disqualified to act as re- ceiver. A director of a company who has known of, and acquiesced in the mismanage- ment for which the suit was begun, and who has been improperly interested in contracts made by the company, is not a proper person to be ap- pointed, and exercise the powers of a receiver ; and the fact that the suit is instituted for his ben- •efitwill not justify his appointment as a receiver ■of the company.— Supreme Ot., (Brooklyn Sp. T.,) Bee., 1880. Keeler v. Brooklyn Elevated K. B., 9 Abb. N Cas. 166. 5. Compensation of receiver. There is no question as to the right of the court to award to the receiver compensation out of the fund which he holds, even though the title to that fund be found to have been from the first and to be now in the defendants. The receiver's compensation cannot be made to depend upon the result of the litigation. — Com. Pleas, (Gen. T.,) Nov., 1880. Eopfensack v. Hopfensack 61 How. Pr. 498. 6. He is the oflBcer of the court who takes property, the right to which is involved in dis- pute, and by order of the court holds it for the benefit of the party who shall ultimately be found to be entitled to it. While it may some- times happen, that by the unfounded claim of a plaintifi) the rightful owner of property is deprived temporarily of the possession of it, and that when he gets it back it is encumbered with the charges of the receiver to whom the court has given the care of it pendente lite, yet great as may be the misfortune to the owner, he must bear the loss unless he can obtain redress from the party on whose application the receiver was appointed, lb. 7. The appellants were defendants charged with having property belonging to a co-partner- ship, to which they got no title because of the fraudulent character of the transfer to them. The court, by its receiver, took the disputed property into its custody to abide the determina- tion of the action. Held, that there being no other fund from which the receiver's legal fees and expenses were payable, he was entitled to them out of the fund in his hands, i. e., the pro- perty in dispute, no matter to whicli of the parties to the action possession of such property had been adjudged. lb. 8. Suits against receivers. While the receiver of a railroad may be protected from an action at law, in respect to the property in the possession of the court, or in his hands as its re- ■ceiver, or from the consequences of an accident occurring in its management, as to other property the management of which he has voluntarily assumed, and over which the court has no control, he is responsible individually for its careful and proper management. — Ct. of App., April, 1880. Kain v. Smith, 80 N. Y. 458. 0. Defendant S., and others, who had been appointed receivers of the V. C. R. E. Co., a Vermont corporation, by the Court of Chancery of that state, with the consent and authority of said court, together with the V. C. R. E. Co., leased of the O. & L, G. E. E. Co., a New York corporation, its road, rolling-stock, etc., for a term of years ; the lessees covenanting among other things to ieep the demised property in good repair, and to " assume all obligations" of the lessor, " either by statute or at common law, as_ common carriers, warehousemen or other- wise." Under this lease the lessors took posses- sion of and operated said road. Plaintiflf was in the employ of said lessees upon the road, and while engaged in loading a car was injured by the fall of a jigger belonging to and furnished by them for such use, but which was insufficient for that purpose ; S. was not present at the time, and no personal negligence on his part was claimed, Seld, that an action to recover damages was maintainable against S. alone ; that the fact of his being a receiver did not afiFect his liability, as he was not in possession of the road so leased as an officer of any court or by its authority, but by virtue of a contract simply permitted by the court ; that, outside of the State of Vermont, the court had no jurisdiction, and S. could do no act virtute officii in this state ; his liability was that of an individusil, and he could not be shielded by a description of his office, or a declaration that he was acting in an official character, lb. 10. A receiver appointed by the courts of another state cannot be sued in the courts of this state, although he has property in his hands in this state. If such a suit is begun and an attachment granted it will be vacated on mo- tion.— Siipreme Ot., (Sp. T.,) April, 1880. Kill- mer v. Hobart, 8 Abb. N. Cas. 426. 11. Substitution of recieiver as de- fendant in suit against corporation. It is not necessary that the receiver pendente lite of a corporation should be substituted as defendant in an independent action brought against the corporation prior to his appointment, in order to enable the plaintifi" therein to proceed to judg- ment. — Superior Ct., Nov., 1880. Knauer v. Globe Mut. Life Ins. Co., 46 Superior 370. 12. Inspection of receiver's books and accounts. The receiver of a railroad is an officer of the court, and the books, con- tracts and accounts relating to his connection with the road are in the custody of the law. He is a trustee for all the bondholders, stock- holders and creditors of the company, and they are entitled, upon reasonable application, to an inspection of the books, papers and accounts relating to the receivership. — Supreme Ct., (Sp. T.,) 1878. Fowler's Petition, 9 Abb. N. Cas. 268. 13. Where a charge is made against a re- ceiver, an inspection of his books and contracts, as distinguished from those which belonged to the company prior to his appointment, will be granted on petition. lb. 14. But the examination must ba limited to such time as will not interfere with the business of the company, and to such, books as are in the office of the company situate in the judicial district in which the application is made. lb, 15. Removal. When individuals have voluntarily placed their property in the hands of a receiver appointed by the court, by no consent of theirs can he be removed and the trust ab- rogated. The court has assumed a duty which is beyond their control. This doctrine is es- pecially applicable to a proceeding against a life insurance corporation, because the course of procedure is all defined by statute. — Smreme a., (Alb. Sp. T.,) June, 1880. People v. Globe Mut. Life Ins. Co., 60 How. Pr. 82, 97. 244 RECEIVERS— REFERENCE. 16. Suits on receivers' bonds. In an action between copartners, E. was, on July 9th, 1874, appointed receiver of the partnership as- sets, and upon that day entered upon the per- formance of the duties of the trust. On Janu- ary 30th, 1875, he gaye a bond with defendant as his surety, conditioned that he would " hence- forth faithfully discharge the duties of his trust." E. was subsequently removed as re- ceiver, and plaintiff appointed in his place. Upon the accounting of E., to which defendant was not a party, E. was ordered to pay over to plaintiff a sum which was adjudged to be the balance of the trust funds in his hands. This order E. did not obey. In an action upon the bond it did not appear when the deficiency or misappropriation of the funds occurred. De- fendant offered to show that no liability accrued after the date of the bond. The evidence was objected to and excluded. Held, that the order was not conclusive upon defendant, and the re- jection of the proof offered was error ; that the contract of defendant that E. should thereafter faithfully discharge his duties did not bind him by the order, and in the absence of express terms in the bond, binding him to submit to the judgment of the court, such a liability could not be imposed upon him. — Ct. of App.. Sept., 1880. Thomson v. MacGregor, 81 N. Y. 592 ; reversing 45 Superior 197. RECOGNIZANCE. BAIIi. RECORDS. As to recording Deeds and Mortgages, see Deeds, 4, 5 ; MoETGAaES, 22-28, 31, 32. As to the sufficiency of the record on Appeal or -Error, see Appeai, 26, 27, 48-53, 102, 125-127 ; Ebbob, 3. As to the admissibility and effect of records' As eoidence, see Evidence, 71, 72. RECOUPMENT. Set-opp. REDEMPTION. Execution, 12, 13; Moetqages, 80-85; Taxes, 28. REFERENCE. 1. What actions are referable. This action was brought by plaintiff, as committee of the estate of a lunatic, to obtain an accounting of the rents and profits of real estate owned in common by the lunatic and by defendant's tes- tator, received by the latter, and of personal property belonging to them jointly, which the complaint alleged had been fraudulently appro- priated by said testator, the defendant, and her former husband, in pursuance of a conspiracy between them in fraud of the rights of the luna- tic. Held, that the action being for an account- ing was referable ; that the allegations of fraud- ulent conspiracy did not change its character ;, and that an order of reference was not review- able here. — Ot. of App., Feb., 1881. Harringtoa V. Bruce, 84 N. Y. 103. 2. An action was brought by an administra't tor to recover damages for a conversion and conspiracy, and the defendant had been arrested and was in jail. Held, not referable, but that the cause was entitled to a preference. — Supreme Ct., {1st Dept. Sp. T.,) March, 1881. Eeilly v, Byrne, 1 Civ. Pro. 2pi. 3. Where, from the return of an answer to aa alternative mandamits, it appears that the trial of the issues made thereby will involve the ex- amination of a long account, a compulsory ref- erence may be ordered. — Supreme Ct., (3d Dept. Sp. T.,) April, 1881. People, ex rel. Parmenter, V. Wadaworth, 61 How. Pr. 57. 4. When an action to recover damages for breach of contract is referable, see Chambers ji. Appleton, 84 N. Y. 649. 5. When a comptilsory referenca "Will be refused. Notwithstanding the fact . that in an action by attorneys for professional services and disbursements, the bill of par- ticulars contains a large number of charges, yet, if the services were performed and the dis- bursements made in the prosecution of a single action, it is not a case in which a compulsory reference may be ordered. — Supreme Ct., (Isff Dept.,) Tracy v. Stearns, 61 How. Pr. 265. Compare Carr v, Berdell, 22 Hun 130. 6. As to when a reference cannot be ordered without the consent of the parties ; and as to- the right to order one as affected by the fact that one of the parties is a receiver, see Durkia V. Sharp, 22 Hun 132. 7. Effect of,referee's refusal to serve. Under Code of Civ. Pro., I 1011, as amended by ch. 542 of 1879, when the referee to whom the parties have agreed to refer the action re- fuses to serve, the court must, on the application of either party, appoint another referee, unless, the stipulation expressly provides otherwise.. — Supreme Ct., (1st Dept.,) April, 1881. May V. Moore, 24 Hun 351. 8. A referee in an action is not obliged to act, and may see to it before rendering service that he is reasonably certain his fees will be paid. — Ct. of App., Jime, 1880. Fischer v. Eaab, 81 N. Y. 235, 238. 9. The hearing ; and powers of the referee, generally. Under Code of Civ^ Pro., ?? 521, 1204, a referee does not exceed his power in giving to one defendant afiBrma- tive relief against his co-defendant. — Superior Ct., [Gen. T.,) Jan., 1881. Derham v. Lee, 60i How. Pr. 334. 10. In an action on trial before a referee, after the case was closed, it was re-opened ' by order of the court for the sole purpose of allow- ing defendant to put in evidence certain ex- hibits and records ; on the re-hearing, defend- ant offered oral evidence to sustain a c(>unter- claim. Held, that it was properly excluded. — &. of App., Jan., 1881. Stephens v. Fox, 83 N. Y. 313 ; affirming 17 Hun 435. 11. After plaintiff had been partially exam-r EEFERENCE. 245 ined as a witness, the hearing was adjourned, and was set down for two successive days. The referee upon the first day informed the attorney for the parties that the case would not be pro- •ceeded with that day, but would be the next. He was advised by defendant's attorney that he could not attend the next day. He did not ap- pear, and the case was proceeded with on the second day, several witnesses being examined for plaintiff without any one appearing for de- fendant. A motion was made on behalf of de- fendants at Special Term to strike out the evi- •dence so given, which was denied. A similar motion was thereafter made before the referee upon a subsequent hearing. Hdd, that the mo- tion was properly denied ; that the claim of a mistrial because of the proceeding of the ref- •eree without an adjournment was a question of irregularity disposed of on the motion, and not reviewable on appeal from the judgment. — Ct. ■o/App., Feb., 1880. Cominsa. Hetfield, 80 N.Y. 261. Compare Matter of Crooke, 23 Hun 696. 12. — in respect to allowing amend- xaents. In an action on a life policy, the •complaint alleged that proper proofs of death were furnished ; on the trial, which was before a referee, he gave the plaintiff leave to amend the complaint, by alleging a waiver of the re- quirement as to proofs. This was granted upon terms, among others, that plaintiff should pay ■costs, which were accordingly paid, and the amendment made. Hdd, that it was within the power of the referee to allow the amendment, a.nd, if otherwise, defendant, by accepting the costs, was precluded from raising the objection. — &. of App., March, 1880. Grattan v. Metro- jpolitan Lite Ins. Co., 80 N. Y. 281. 13. Time -within -which to file report. Under Code of Civ. Pro., 3 1019, either party may terminate the reference, unless the referee has, within sixty days from the time when the cause was finally submitted to him, made his report and filed the same with the clerk, or de- livered it to the attorney for one of the parties ; it ig no longer sufficient for him to have made his report and notified the party in whose favor it was made that it was ready for delivery. — ■Supreme Ot.. (3d Dept.,) Nov., 1880. Phipps v. Oarman, 23. Hun 150. 14. Piling testimony -with report. Under General Kule No. 30, the testimony taken before a referee must be filed with his report, and until this is done the filing is in- complete, and the time within which excep- tions to the report must be filed and served ■does not begin to run. — Supreme Ct., {1st Dept.,) Sept., 1880. Pope v. Perault, 22 Hun 468. _ 15. Although a stenographer is not obliged to part with his notes until his bill has been paid, yet if he do deliver them to the referee to be examined by him and used as the basis ■of his report, he cannot limit the effect of such delivery, and it is the duty of the referee to file them with his report, even though the fees ■of the stenographer remain unpaid. lb. 16. Application to confirm report. Where an order of reference, in an action for an accounting reserves certain questions for the court, an application to confirm the report and for leave to enter a judgment thereon, must, notwithstanding a stipulation that judgment, may be entered on the report, be made to the court. — Supreme Ct., {Ath Dept.,) Jan., 1881. Bon V. Sanford, 23 Hun 520. 17. Entry of judgment on report. This action was brought for an accounting by defendant as plaintiffs agent, and was by or- der sent to a referee to hear and determine all the issues. After the filing of the referee's re- port which stated, as a conclusion of law, " that the defendant should be ordered and adj ndged to account," &c., an exparte motion for an interlocu- tory judgment thereon was made by plaintiff, at Special Term, and the order entered "ad- judged and decreed that it be referred to the same referee to take and state an account," &c., and proceeded to specify in detail, the manner in which the accounting should be had. Held, 1. That the above conclusion of law was a sufficient order for judgment by the referee, as required by Code of Civ. Pro., ? 1022. 2. That the court below did not exceed its powers by " ordering more than a simple judg- ment that defendant account," &c., the excess ob- jected to being only a correct statement of the mode of procedure in an accounting, which was binding upon the referee. — Superior Cl., April, 1880. Hathaway v. Russell, 46 Superior 103. 18. Time to file exceptions to report. By force of rule 30, a referee's report becomes absolute and confirmed, unless exceptions thereto are filed and served within eight days after ser- vice of notice of filing the report. No order of confirmation, either upon motion or exparte, is necessary. — Superior Ct., Feb., 1880. Eustsj. Hauselt, 46 Superior 22. 19. If, notwithstanding no exceptions are filed, a motion is made to confirm, which, after opposition, is granted, an appeal from the order of confirmation entered thereon, brings up noth- ing for review. 1 b. 20. The court has power to permit the filing of exceptions nuric prro nunc, and to that end may make such disposition of an appeal from an order confirming a report to which no excep- tions were filed, as may be necessary to prevent a failure of justice. lb. _ 21. Hearing and determining excep- tions. Where the findings of fact by a referee conflict, the defeated party is entitled to those most favorable to him, and may rely upon them in aid of exceptions to the referee's conclusions of law. — Ct. of App., Dec., 1880. Schwinger v. Eaymond, 83 N. Y. 192. 22 Where findings contained in the case as settled by a referee, differ from those contained in his report, the former will be deemed correct, as it is upon the case that exceptions stand. (Code of Civ. Pro., ? 997.) lb. 23. Motion to vacate the order. An order of reference cannot be set aside or vacated until it has been entered of record. — Buff. Su- perior Ct., {So. T.,) Dec., 1879. Stafford v. Ambs, 8 Abb. N. Cas. 237. 24. Two causes against the same defendants were referred by consent to the same referee, and he heard and determined the first in favor of the plaintiff. A number of questions involved in the second cause were also involved in the first one. On motion by defendants — Held, that the order of reference should be vacated, and a new referee substituted. — City Ct. of Brooklyn, {Sp. T.,) July, 1880. Conley v. Petrie, 60 How. Pr. 299. 25. Referee's fees, and ho-w secured. The fees of a referee who is required to act also as an auditor may properly exceed the amount the statute would allow for his actual sessions as referee.— Com. Pleas, {^. T.,) Mm). 246 EEFERENCE— EEMOVAL OF CAUSES. 1881. Matter of Hulbert, 9 Abb. N, Cas. 132. 26. A referee appointed to sell real property pursuant to a judgment in an action, other than an action to foreclose a mortgage, is, under Code of Oiv. Pro., ? 3297, entitled, to the same fees and disbursements as are allowed a sheriff un- der subd. 7 and 11 of ? 3307 ; and also, upon distribution of the proceeds of the sale, to a commission equal to one-half of that which is allowed by law to an executor or administrator for receiving and paying out money; and ? 3308 does not exclude these provisions from operating in the city of New York. — Supreme a., (1st Dept. -&!. T.,) April, 1881. Maher v. CCtonner, 1 Civ. Pro. 158 ; S. C, 61 How. Pr. 103. 27. Laws of 1874, ch. 192, is not a " special statutory provision relating to the fees of the sheriff of the city and county of New "£ork," and so far as that act relates to the fees of officers other than the sheriff— e. g., referees— it is modified by the general and comprehensive provisions of ^ 3297. lb. 28. Where, after payment of judgment, the surplus realized from the sale of real property was deposited by the referee with the chamber- lain of the city of New York — Edd, that the amount so deposited was not distributed or ap- plied within the meaning of § 3297, and that the referee was entitled to no commissions thereon, lb. 29. The Supreme Court has no power to grant an order, on application of the referee in an action, requiring the plaintiff to pay the ref- eree's fees and take up the report.— Oi. of App., Nov., 1880. Geib v. Topping, 83 N. Y. 46. _ 30. It seems that as referees act voluntarily, their rights are to be enforced according to the principle of the law of contracts. lb. 31. It seems, also, that a referee is not bound to part with his report without payment of his legal fees ; and when he has his report ready within the statutory time, and offers to deliver it on payment of such fees, the offer will be daemed a sufficient delivery to prevent a for- feiture of fees declared by ? 1019 of the Code of Civ. Pro. 16. 32. Agreements and stipulations for compensation. A stipulation by a party, at the commencement of a reference, with the opposite party to pay half the referee's fees, will be enforced. — Supreme Ct., {1st Dept. Sp. T.,) March, 1881. Brick v. Fowler, 61 How. Pr. 153. As to references to Arbitrators, and effect of ' their Award, see Abbitbation and Awabd. REFORMATION OF CONTRACTS. Equitt, 8-13. RE-INSURANCE. Insubance, 32. RELEASE. What amounts to a release As between debtot and creditor, generally, see Debtor and Cbed- ITOR, II. Power of Partner to release firm claims, see- Partnership, 11-15, 28. RELIGIOUS SOCIETIES. As to the right of a church to enforce pay- ment of money collected by an unincorporated association for its benefit, see First Baptist Church V. Pryor, 23 Hun 271. As to Legacies to religions corporations, se& Legacies, 9, 10. REMAINDERS. Estates ; Wills, V. REHEARING. Appeal, 132. REMOVAL OF CAUSES. 1. Grounds of removal— citizenship in different states. To warrant a removal under the act of congress of 1875, covering suits between citizens of different statra, if any person who is a necessary plaintiff and any person who is a necessary defendant are citizens of the same state, there is no right of removal. All the de- fendants compose the " party " who may ask for a removal, and they must all be other states' citizens. — Supreme Ct., (Ghamb.,) Feb., 1881. Miller v. Kent, 60 How. Pr. 451. 2. In an action brought by an insurance com- pany to compel persons who had recovered a judgment against it, to interplead with others who claimed to be assignees of or to have ac- quired liens upon the said judgment, the plain- tiff, the judgment creditors, and all of the de- fendants except two, were residents of this state. Held, that the action could not, upon the peti- tion of one of the non-resident defendants, be removed to the United States District Court un- der the act of congress of 1875. — Supreme Ct., {1st Dept.,) Jan., 1881. Eepublic Fire Ins. Co., V. Keogh, 23 Hun 644. 3. — prejudice -or local influence. Subd. 3 of ? 639 of the Eevised Statutes of the United States providing for the removal of ac- tions into the United States courts, on account of prejudice or local influence, was not repealed by the act of March 3d, 1875, (10 U. S. Stat, at L. 470,) and is still in force. — Supreme Ct., (3d Dept.,) May, 1881. Nye v. Northern Central E'y Co., 24 Hun 556. 4. Under the said subdivision, the case may be removed at any time before the trial or final .hearing, and the fact that it has been on the cal- endar for five or six circuits before the applica- tion is made is no ground for refusing it. lb. REMOVAL OF CAUSES— REPLEVIN. 247 5. Right of removal as dependent on amount in dispute. An action waa brought in a state court for less than $500, and defendant, in his answer, pleaded a counter- claim exceeding $500, which was replied to by tlie plaintiffl. On an application for removal of the cause to the federal court — Held, that the counter-claim^ must be considered, and that the matter in dispute exceeded $500. — Z7 S. Qir. Ct., {So. Dist.,) JVo!)., 1880. Clarkson v. Manson, 60 How. Pr. 45 ; overriding 49 Id. 480. 6. Time to apply for removal. Un- der the provisions of the act of congress of 1875 providing for the removal of causes into the United States courts, " before or at the terra at which said cause could be first tried, and before the trial thereof," it is too late to mate the ap- plication after a demurrer has been interposed and duly argued and decided. — Supreme Ct., (Ghamb.,) Feb., 1881. Miller v. Kent, 60 How. Pr. 451. 7. In all the states there is, by law or rule, a term, i. e., a term at which a cause may for the first time_be_ called for Iriali This is the term at which, withii^the meaning of the law, the cause could first be tried, and, therefore, is the term at or before which the petition for the removal must be filed. lb. 8. The petition. It is not necessary that the petition for removal on account of prejudic# or local influence, (U. S. Eev. Stat. ? 639, subd. 3,) should show that the parties to the action were residents of differpnt states at the time of its commencement ; it is sufficient if it appears that the requisite citizenship exists at the time of the filing of the petition for the removal. Nye V. Northern Central E'y Co., supra. _ 9. The bond. The petitioner need not join in the bond required to be given upon the granting of the application. 76. lO. The hearing in the state court. The averments of the petition are not conclu- sive on the state court ; that court has the power and the right to examine other papers than the mere afiBdavit of the petitioner, to ascertain whether the statute permitting the removal of the cause has been complied with. Miller v. Kent, supra. RENT. Landlord and Tenant, III. REPLEVIN : CLAIM AND DELIVERY. 1. VThen the action -will not lie. An action of replevin cannot be maintained against a freight agent of a railroad company for a refu- sal to deliver freight to the consignee thereof until certain charges thereon have been paid, where he makes no claim to, and has no posses- sion or control of the property, except as the agent or servant of the company. — Supreme Ct., (3d Depl.,) May, 1881. McDougall v. Travis, 24 Hnn 590. 2. Eeplevin will not lie by one tenant in com- mon of a chattel against another for taking the chattel, and if one of them sells his interest to a third party he hos the right to deliver the chat- tel to the purchaser, and neither he nor any one assisting him in so doing is liable to an action. — Ct. of App., 7a».,.1881. Hudson v. Swan, 83 N. Y. 552. 3. The plaintiff s claim of title. Where, in the complaint and upon the trial of an action to recover possession of personal proporty, the plaintiff claims as sole owner, he must stand or fall upon that claim, and cannot, if his alleged title turns out to be invalid as against the true owner, fall back upon an alleged lien. The claim of title is a waiver of any lien ; and, in any event, before the lien can be restored, the false claim of title must be abandoned, the title of the true owner conceded, and the claim re- duced to one of lien. lb. 4. The undertaking'. In replevin pro- ceedings in the District Courts, the undertaking on the part of the plaintifi" must be approved by the justice, and not by the marshal. — Com. Fleas, (Gen. T.,) May, 1881. Grotz v. Hussey, 61 How. Pr. 448. REPLY. Pleading, IV. REPORT. Manufacturing Companies, II. Keference, 13-22. REPRESENTATIONS. Fraud, 2-4 ; Insurance, 3, 16, 17, 35, 36, 44. Sales, 16, 17. Vendor and Pur- chaser, 9-11. RESCISSION. Contracts, 52 ; Sales, 28-33. RETURN. Sheriffs, 7-9. REVIEW. Appeal ; Certiorari ; Error ; New Trial. REVIVAL. As to revival of Actiorw, generally, see Abatement and Kevival, II. EflTeot of New Fromise, see Limitations of Actions, V. REVOCATION. Of License, see License, 3, 4. Of WUl, see Wills, 5. •248 KIPARIAN EIGHTS— ROBBERY. RHINEBECK. Mdnioipai Cobfobationb, 58-63. RIPARIAN RIGHTS. [Oonsult, also, Mills ; Bbal pbopeety ; Wateb- COUBBES.] 1. Relative rigb.ts of riparian owners .and the public. The bed and banks of a fresh-water river, where the tide does not ebb and flow, are the property of the riparian pro- prietors, the public having an easement only for passage as on a public highway ; and such pro- prietors may use the land or water of the river in any way not inconsistent with this easement. —Gt. of App , Bee., 1880. Chenango Bridge Co. *. Paige, 83 N. Y. 178. 2. The legislature, except under the power of eminent domain, can interfere with such a river only for the purpose of regulating, preserving and protecting the public easement. 76. 3. The natural flow of the stream, and right to obstruct it. ^The parties were adjoining proprietors. A stream of water ran across plaintiff's lands northerly upon and across defendant's lands below. Near the line was formerly a butternut tree, the stump of which remains ; the natural channel of the stream is on the east of the stump, but in times of high water, some of the water of the creek flowed on the west side. Plaintiff's predecessor constructed and plaintiff maintained an embank- ment upon his land which caused the water of the creek in its ordinary stages as well as in .times of floods to flow on the west side of the stump. Defendant thereupon constructed an ' embankment which prevented any water from flowing on said west side, and turned it to the east side. Seld, that plaintiff had no right of action because thereof ; that defendant had the right to dam against the water so turned upon his land, and if in order to protect himself from the consequences of plaintiff's acts he obstructed the flow of flood-water plaintiff could not com- plain. — Ot. of App.,' Nov., 1880. Avery®. Em- pire "Woolen Co., 82 N. Y. 582. RISK. Insubance, 31, 37. ROBBERY. 1. What constitutes the ofTence — evidence. Upon the trial of an indictment for robbery in the first degree, the property taken being charged to be one key of the value of $1, evidence on the part of the pros- ecution was to the effect that certain persons, one of whom was the prisoner, entered the room of W., who was janitor of a bank, masked, while he was in bed ; that they suffocated and handcuffed him, and by putting a pistol to his head compelled him to disclose the combination of the lock of the bank safe, and put him into such a state of terror as to be incapable of re- sistance ; that they then took and carried away the bank keys from a table in his presence, one of them being the key of the street door, and subsequently entered and robbed _ the bank. There was no evidence of any intention to return the keys, or that the street door key was ever recovered. Held, 1. That the evidence justified the jury in finding a felonious taking of the key from W. against his will and in his presence by vio- lence to his person and h^ putting him in fear of immediate personal injury, and that such a finding established robbery in the first degree (2 Bev. Stat. 677, § 55) ; that the intent with which they took the key was a question of fact for the jury, and if they found that the robbers took it with intent to appropriate it, the use subse- quently made of the key, although in the minds of the robbers at the time of the taking, could not affect the question of their guilt ; and that it was immaterial whether the robbers formed the plan of taking the key before they entered the room or whether it was an after-thought suggested by seeing-it on the table. 2. That evidence of the burglary committed at the bank was admissible for the purpose of showing that it was committed by the same party who committed the robbery, and by con- necting the prisoner with the burglary to con- ,nect him with the robbery. — Ct. o/ App., Jan., 1881. Hope V. People, 83 N. Y. 418. 2. Evidence was competent of the complicity of the prisoner in^a'prior scheme to enter and rob the bank. lb. 3. The necessary for6e and vio- lence. Upon the trial of McG, for robberj; in the first degree, it appeared that on the evening of January 6th one S. entered a saloon kept by McG.'s wife, and while there took out his pocket-book to put some money in it; that McGr., wlio stood at the end of the bar, knocked it out of his hand, and that one K., who stood behind the bar, picked it up. McG. then seized S. by the shoulders, turned him around and put him out of the saloon and shut the door; that S. demanded his pocket-book, and was told by McG. that he had better go away, as he would never see it again. The court charged that if the force used by McG. in taking the pocket-book from the hands of S. was suflicient, under the circumstances, to deprive him of his property, and if it was done with a felonious intent to steal it, that then the element of vio- lence required by the statute to constitute the offence of robbery was made out. Held, that this was error. — Supreme Ot., {3d Dept.,) Jan., 1881. People v. McGinty, 24 Hun 62. For decisions as to offencgs Analogovs to rob- bery, see Embezzlement; False Pbetenoes; Laecent. ROCHESTER. Municipal Coepobations, 64-66. RULES OF COURT. COUETS, 2-4. SALES, I., II. 249 S. SALES. I. The Contbaot. Validity ; Eights op THE Paetibs, &c. 11. Delivery and Payment. III. Waebanties. Sales by Sample. IV. Remedies between Buyee and Seller. I. The Conktract. Validity; Rights of THE Parties, &o. 1. What amounts to a valid con- tract of sale. As to what is sufficient to constitute a valid sale of goods, and when the memorandum of it need not be signed by both parties, see Steele v. Taft, 22 Hun 453. 2. B., the lessee of certain premises, sublet the same for the unexpired term, together with certain of his chattels thereon, by a lease pro- viding as follows : that on performance of cov- enants and payment of rent (a large part of which was paid in advance by indorsed notes), B. would, at the expiration of the term, convey «aid chattels to the subtenant ; that if a loss by fire occurred, B. was to receive out of the insur- ance money (the subtenant agreeing td keep the chattels insured), such proportion as the rent then due might bear to the whole rent, the balance to go to the subtenant ; that upon de- fault, re-entry could be made, and the chattels sold, and the rent due taken from the proceeds, the balance to go to the sub-tenant. Held, that under the above agreement, B. did not part with title to the chattels ; also that a sale thereof by B. during the tenancy, unaccom- panied by manual delivery, raised no presump- tion of fraud. — Superior Ct., Dec, 1880. Bean V. Edge, 46 Superior 455. 3. Bequirements of the statute of frauds. A broker's note or memorandum of sale of goods, containing the names of the ven- dor and vendee and the terms of sale, and de- livered to both parties, makes a valid contract of sale within the statute of frauds. — Ct. of App., March, 1881. Newberry v. Wall, 84 N. Y. 576. 4. Where, after the making of an oral con- tract for the sale of goods, void under the statute of frauds, a payment is made thereon, and at the time of such payment, the essential terms of the contract are re-stated, this takes the case out of the operation of the statute and validates the contract. — Gt. of App., March, 1881. Hunter v. Wetsell, 84 N. Y. 549._ 5. Where a check is delivered and received as a payment, which is good when drawn and is • paid on presentation, this is a payment " at the time" within the meaning of said statute (2 Rev. Stat. 136, § 8, subd. 3,) and satisfies its require- ments, lb. II. Delivery and Payment. _ 6. Necessity and sufladency of de- livery. Where the price of certain specific chattels is fixed and paid, e. g., by orders upon a fund due the vendee from the city of New York, and delivery is to be made at a place designated by the vendee, nothing else remain-, ing to be done by the vendor, the title passes absolutely without delivery. — Superior Ct., Dec., 1880. Gray v. Mayor, &c., of New York, 46 Superior 494. 7. While, as a general rule, no action lies on the part of a vendor upon a contrapt for the sale and delivery of a specified quantity of goods, until the whole quantity is delivered, yet where the whole delivery is to be at one and the same time and the vendee elects to receive a portion and appropriates the same to his own use, and by his acts evinces that he waives the condition pre- cedent of a complete delivery, the vendor may recover for the portion delivered. — Cl. of App., June, 1880. Avery v. Willson, 81 N. Y. 341. 8. Conditional sales. As to the effect of the destruction of part of the property, before Sayment of the price, where the sale is con- itional, the title remaining in the seller, see Humeston v. Cherry, 23 Hun 141. 0. When the title passes— payment as a condition precedent. PlaintiSs con- tracted to sell to A. a quantity of corn to be paid for in cash on delivery. At the request of A. plaintifis caused a portion of the corn to be loaded on board a vessel, for their account, and received the weigher's return, which they in- dorsed and delivered to A., to enable him to pro- cure bills of lading in his own name and to sell his exchange drawn against the same, it being agreed that the title of the corn should not pass until payment, which was to be made on that day. A. procured the bills of lading, which he transferred to defendants as security for three bills of exchange drawn against the corn, form- ing part of a parcel of exchange sold to defend- ants by A. Defendants paid to A. a portion of the proceeds of the exchange so purchased, and forwarded the three bills with the bills of lading to their correspondents. On the same day plaintiflTs notified defendants that they were the owners of the corn, and demanded the same or the bills of lading, or that defendants should agree to account to them for the proceeds ; de- fendants refused. At tbat time they had in their hands, of the purchase price of the ex- change, more than the value of the corn. In an action for tlie conversion of the corn, the defence was that defendants bought and paid for the corn in good faith without notice. Held, that no title to the corn passed from plaintiff's to A. ; that the condition precedent of payment was not waived by the symbolical delivery ; that as de- fendants, at the time of plaintiffs' demand, had sufficient means in their hands to protect both themselves and plaintiffs from loss, their refusal to comply was without justification; that they were to be regarded as holding the proceeds in place of the property, and were liable to pay it over to plaintiffl as. the rightful owners; and that, by payment of a portion of the purchase ihoney before notice of plaintiff's claim, defend- ants were entitled to protection as bona fide pur- chasers, only to the extent of such payment. — a. of App., Feb., 1881. Dows v. Kidder, 84 N. Y. 121. 10. The fact that other moneys were mingled with the proceeds of plaintiffs' property did not impair their right. lb. 250 SALES, II., III., IV. 11. The claim that the money in defendants' hands represented in part the price of bills of exchange drawn against other property as to which defendants were in the same position, was no^ tenable ; the question between the parties must stand as of the date when plaintiffi made their demand, and a payment then would have been good against every one, no demand by other claimants having then beeu made. lb. 12. Such a claim was not within the issues, but was inconsistent with the answer, lb. 13. Stoppage in transit. As to whether a stoppage in iramsUu, by a vendor, of goods sold on credit, is to be regarded as a rescission of the sale, or simply as an assertion of a right to en- force a lien for the purchase price, quaere. — Cl. ofApp., Feb., 1880. Babcock v. Bonnell, 80 N. Y. 244. 14. Upon the theory that the right is to en- force a lien, the vendor must hold the property until the expiration of the credit, and be able to deliver it upon payment of the price, the purchaser having the right to pay the price aud take the property. If not paid at the time stipu- lated, the vendor may sell upon giving notice. lb. 15. The authorities as to the principle upon which the right of stoppage in trarmRi is found- ed collated ; the prevailing current of American decisions stated as favoring the theory of a lien. lb. III. Wabrantibs. Sales by Sample. 16. Rights of buyer of goods infe- rior to sample. Where, upon an executory contiaol; for the sale of a cask of gin, the vendor represents it to be of good quality and to be ■worth more than the price paid for it, and at the same time exhibits a sample of gin which is of a good quality, the vendee is entitled to a reason- able time to examine the gin after its arrival, and may, if it proves to be inferior to the sam- ple and of poor quality, set up the damages arising from the breach of warranty as a defence to an action brought to recover its price, although he has not returned or offered to return the gin, but has retained and used the same. — Supreme Cl., {4th Dept.,) Jan., 1881. Marshuetz v. Mc- Greevy, 23 Hun 408. V7. The defendants agreed to sell to the plaintiffs "one hundred and ten thousand pounds Bussia camel's hair, to arrive from Eu- rope. * * * Hair to be equal to sample." The hair intended to be sold arrived and was tendered to the plaintiffi, who refused to receive it, on the ground that it was inferior to the sam- ple shown to them, and thereafter brought this action to recover daju&ges for the breach of the contract. Sdd, that the stipulation that the goods should be equal to the sample was not a substantive part of the agreement, and did not render it conditional upon the arrival of goods of the prescribed quality, but amounted to an express warranty of the quality of the goods sold, for a breach of which the plaintiff were entitled to recover. — Supreme Cl., (2d Dept.,) Dee., 1880. Dike v. Reitlinger, 23 Hun 241. IV. Eemedies between Btjyeb and Seller. 18. Rights of the seller— election of remedies. Where, under a contract of sale of personal property, the place of delivery was to be designated by the vendee — Held, that a tender was not required on the part of the ven- dorbefore action to recover the purchase price; that readiness and an offer to deliver were suf- ficient. — Ol. cf App., Ma/rcli, 1881. Hunter v. Wetsell, 84 N. Y. 549. The measure of damages in such an action i» the contract price less payments made thereon. lb. 19. The vendor may, but is not bound to sell the property at auction, after due notice, and on account of the vendee. He may abandon the property, treat it as the vendee's, and sue the latter for the contract price. lb. That the property was perishable does not affect the question. lb. 20. Seller's action for the price — right of action. Where separate purchase* of jgoods are made at different times upon a credit for a specified time, the different sales do not constitute an entire and indivisible demand, but a cause of action accrues when the term of credit expires as to any one sale, and the ven- dor may bring separate actions for each sale. — Cl, of App., Dec., 1880. Zimmerman v. Erhard, 83 N. Y. 74; S. C, 60 How. Pr. 163. 21. The pendency of an action, therefore, to- recover for goods so sold at one date is not a de- fence to an action for goods sold at a subsequent date. lb. 22. The rendering of an account by the ven- dor, containing all the items, does not change the nature of the contracts, or show that the transactions were not separate and distinct. lb. 23. As to when an action by the seller to recover the property from an assignee of the buyer, is not a bar to an action for the purchase price, see Talcott v. Brouner, 46 Superior 566. 24. Matters of defence. In this action, brought to recover the price of goods sold and delivered to the defendant, the defence was that they were sold upon a credit which had not ex- pired at the time when the action was com- menced. To this the plaintiffs replied that the sale was procured by fraud, and that the credit had be6n waived. The only evidence of waiver was the avowed insolvency of the defendant within the time for which the credit was given, followed by a notice to the plaintifis of his ina- bility to pay the debt. Held, that this did not amount to a waiver of the credit. — Sv/preme Cl-y {1st Dept.,) Jan., 1881. Keller v. Strasburger, 23 Hun 625. 25. Evidence. In an action to recover the alleged purchase price of a quantity of hops, wherein the statute of frauds was set up as a de- fence, plaintiff's evidence was to the effect that after an oral contract of sale had been made, de- fendant made a payment thereon by check, and at that time the contract was restated. After defendant had been called as a witness for plain- tiff to prove payment of the check, he, as a wit- ness in his own behalf, contradicted plaintifi'-^ evidence as to payment and restatement of cons tract ; he was asked, on cross-examination, if the price of hops went down after the time of the alleged payment ; this was objected to as imma- terial and irrelevant, and the answer received under objection and exception. Held, no error ; that the evidence was competent as showing the interest of the witness. Hunter v. Wetsell, supra. 26. In an action to recover the purchase price of goods alleged to havebeen sold, to ar- SALES, IV.— SCHOOLS. 251 rive, by plaintiffs to defendants, through a bro- ker, it appeared that the broker entered the contract of sale in his book, made two copies thereof, one of which he delivered to the plain- tiffs, and sent the other by his clerk to the de- fendantsJn the usual course of business ; that subsequently the broker had a conversation with one of the defendants as to the purchase, and in- formed him that he had executed the broker's note ; that after the arrival of the goods defend- ants requested plaintiffs to enter the goods at the custom-house in bond, which they did, and then sent defendants an order for the goods and an account of the sale, to which no objection was made ; that defendants made arrangements with warehousemen to store the goods, stating that they had bought them, and that subsequently they rejected the goods on the ground that the quality was inferior to that contracted for* The defendants did not deny, as witnesses, the receipt of the broker's note. Held, that the evidence of such receipt was sufficient to require the sub- mission of that question to the jury, and that a nonsuit was error. — Ct. of App., March, 1881. Newberry i>. Wall, 84 N. Y. 576. 27. Upon the trial, the action being for the value of the goods sold, the sample by which the sale was made was not produced in court, and the evidence as to it was very vague. The plaintiff offered to read from the deposition of plaintiff's agent the answer to the question — " From what sample of wine did you take your order from said Lax ? " which answer was ex- cluded. Held, error for which a new trial must be granted. — Superior Ct., April, 1880. Sonoma Valley Wine, &c., Co. v. Lax, 46 Superior 137. 28. Seller's action to rescind— evi- dence. For the purpose of establishing a fraudulent intent on the part of a vendee in purchasing goods, it is competent to show simi- lar transactions between him and other parties, occurring at or about the time of the purchase in question. — Supreme Ct., [lat Dept.,) Nov., 1880. Naugatuck Cutlery Co. v. Babcock, 22 Hun 481. 29. In an action to rescind a sale of goods on the ground that it was procured by false and fraudulent representations made by the vendee, the plaintiff was allowed, against the defendants' objection and exception, to prove that in Decem- ber, 1875, a member of the defendants' firm, for the purpose of infiuencing the conduct of those to whom they were to apply for credit, made a statement to the reporter of a mercantile agency, who came to inquire as to the standing of the firm, as to its assets, and as to the property owned by one of its members, which statement was to the knowledge of the firm, utterly false ; that in March following, the plaintiff wrote from Connecticut to a person in New York, inquiring as to the defendants' responsibility, and received a letter in reply thereto from him, in which he stated among other things, that he had made in- quiry at a mercantile agency, who reported them well. He had seen the statement made to the reporter of the agency, though it was not shown that he was a subscriber thereto. Held, that the evidence was properly received. 1 b. 30. Putting vendee in statu quo. A vendor, seeking to rescind a contract of sale and to recover the property on the ground of fraud, is not required to reimburse the fraudulent ven- dee for advances to others or for expenditures made by the latter to effectuate the fraud ; and this although the vendor would have the benefit of the advances or expenditures on repossessing himself of the property.— Ci. of App., June, ISSOi. Guckenheimer u.Angevine, 81 N. Y. 394. 31. The doctrine of equitable subrogation win not be applied in such case to relieve the vendee from a loss occasioned by his own un- ISiWrul 9iCli _i o 32. Plaintiffs sold to J. & J. P. 8., defend- ant's assignors, a quantity of whisky then in a U. S. bonded warehouse and subject to a gov- ernment tax. The sale was induced by fraud on the part of the vendees. Defendant A., who- was privy to the original fraud, paid the tax in order to get possession of the whisky. Held, that plaintiffs, in seeking to rescind the sale and to reclaim the property, were not bound to re- imburse to A. the tax so paid. lb. 33. Reclaiming the g'oods in hands' Of third person. A judgment creditor, by levying upon goods in the possession of the debtor, acquires no better or greater title thereto than the debtor has, and if the latter's titl& thereto is defective because procured by false and fraudulent representations, his vendor ha» the same right to rescind the sale and retake the goods, as against such creditor, as he had as against the^ vendee. — Supreme Ct., (lit Dept.,) Nov., 1880. Naugatuck Cutlery Co. v. Babcock, 22 Hun 481. As to sales of Land, see Vendob and P0R- CHASEB. As to Judwial sales, see that title ; also. Exe- cution, 7-13 ; MoBTGAGES, 63-69. SARATOGA SPRINGS. Mtjnicipal Cobpobations, 67, 68. SATISFACTION. Of Omiracts, generally, see Conteacts, VI> Of Mortgage, see Mobtoages, Vni. SAVINGS BANKS Banes, VI. SCHOOLS. 1. Power of school district to con- tract. A school district has power to author- ize its trustee to accept a conveyance of land to- be used as a Site for a public school, and to agree, as part of the consideration for the con- veyance, that the district shall build and keep in repair the whole of the division fence be- tween such land and adjoining land of the grantor. Such a contract is valid though made before any tax to build or repair the fence has been voted.— Supreme Ct., [ith Dept.,) Oct., 1880; Albright v. Riker, 22 Hun 367. 2. The College of the City of New- York, as organized by ch. 264 of 1866, is a body corporate,- with the full powers and privi- 252 SCHOOLS— SET-OFF : COUNTER-CLAIM: leges of a college conferred by the revised stat- Dites, and the trustees thereof are endowed with all the powers conferred upon trustees of col- leges by such statutes. — Supreme Ot., (ls< Dept.,) Jan., 1881. People, ex rel. Burnet, v. Jackson, 23 Hun 568 ; S. C, 60 How. Pr. 330. 3. The college is in no legal sense a depart- ment of the city, but is an independent corpora- tion, not subject to the control, management or visitation of the authorities of the city, except as Bday be specially provided for and permitted by ithe legislature, lb. 4. The disposition of the fund authorized to be raised by ch. 471 of 1872, is conferred alto- gether upon the trustees of the college and the board of education of the city of New York, and ao supervisory or inquisitorial control over the same is given to the finance department of the •city, nor is it subject to the review or control of the auditor or comptroller. 1 b. SEAL. As to the necessity and efiect of a seal upon any Particular mstrv/meni, see the title of the in- strument in question. SECURITY. As to bonds on Appeal, see Appeal, 24, 25, 44,152-160. As to the security required on granting either •of the Prouisional remedies, see Arkest, 12-16 ; Attachment, 26, 27 ; Injunction, IV. ; Heceivebs, 16 ; BefiiEvin, 4. As to Official bonds, see the titles of the various officers. As to Seearity for coata, see Costs, III. SEPARATE ESTATE. Husband and Wipe, V. SERVANTS. .aster and Servant ; Bailroad Com- panies, 45-53, Services. SERVICE OF PROCESS. Process, 3-9.. SERVICES. 1. Interpretation of contracts for services. The plaintiff and defendants entered into an agreement by which the former agreed to work for the latter for the term of one year ibr the sum of $1200, payable in equal weekly installments, and the defendants agreed to pay' therefor, "provided his work and services should be to their satisfaction. Should there be any disagreement the installments are to be paid only to the time of such disagreement, unless an amicable settlement can be arranged." Held, that the employment of the plaintiff was only to continue during the pleasure of the defendants, and that the latter might discharge him at any time without assigning any reason therefor. — Supreme Qt., (2d Depl.,) Feb., 1881. Spring «. Ansonia Clock Co., 24 Hun 175. 2. A contract between a corporate body, a seminary, and a professor, construed with re- ference to its duration, and the sufficiency of a notice of termination thereof, given by the cor- porate body to the professor. Tyn^ li. Theological Seminary, &c., of Ohio, 46 Superior 250. As to the Damages recoverable in actions upon contracts for services, see Damages 5. ■For further decisions illustrating the above principles, see Master and Servant, 1, 2. SET-OFF : COUNTER-CLAIM. 1. Wliat demands may be set off. Cross-demands, though unliquidated by judg- ment, and although not within the statute of set- off, will in equity be set off against each other, if, from the situation of the parties, justice can- not otherwise be done. — Ct. of App., April, 1880. Davidson v. Alfaro, 80 N. Y. 660. 2. To compel a set-off both debts must have been due and payable at the same time, and be- fore a change in the ownership of either. It is not necessary, however, that, at the time, an action could have been maintained upon the debts ; it is the condition or state of the demands at the time which is to be looked at, and not any special rule or regulation touching the situation of the debtor or creditor which prevents him from then bringing suit upon the demand, or re- quires something as a prerequisite. — Ct. of App., Sept., 1880. Taylor v. Mayor, &e., of New York, 82 N. Y. 10. S. The fact, therefore, that by the charter of a municipal corporation no action can be main- tained upon a demand against it, until after presentation and demand of payment of some officer of the corporation, does not prevent a set-off of the claim in an action by the corpora- tion upon a demand against the owner thereof. lb. 4. On April 2, 1880, the defendant deposited with the plaintiffs' assignor, one P., who was car- rying on business as a private banker, $600, and received therefor a certificate stating that the same would be paid to himself or his order on return of the certificate properly indorsed, with interest at the rate of five per cent, per annum, if left four months. At that time P. held a note made by the defendant which had fallen due on January 23d, 1880 On June 2d, 1880, P. failed and made a general assignment to the plain- tiffs. Prior to that time the defendant had made no demand for the money deposited. In an action by the assignees upon the note — Held, that the defendant was entitled to set off the amount deposited against (he amount due upon the note. — Supreme Ct., (3d Dept.,) Jan., 1881. Seymour v. Dunhani, 24 Hun 93. 5. "What may not be. The plaintiff SET-OFF : COUNTER-CLAIM. 253 cannot have a judgment recovered by him, from which an appeal has been taken by the defend- ant, set off against the costs of two motions awarded to the defendant in the same action. — Supreme Ct., {1st Depl.,) April,' 1881. Hardt*. Sohulting, 24 Hun 345. 6. Tliree of the defendants, in an action brought by them against M., plaintiff's assignor, to recover possession of personal property, gave an undertaking executed by them and by the other defendants as sureties, on a claim for the immediate possession of the property. M. suc- ceeded in the action, recovering a judgment for the value of the property; execution was issued thereon and returned unsatisfied. In an action upon the undertaking defendants claimed to be allowed as a set-off an indebtedness of M. to the principals in the undertaking, part of which was due and payable before the assignment of M. to plaintiff, and a part after ; but all of which was due and payable before there arose a cause of action upon the undertaking. Held, that at law defendants were not entitled to the set-off. (1) Because it was a several indebted- ness of M. to but three of the defendants, while tlie liability of defendants was joint. (2) Be- cause it was due and payable before there was a cause of action in the plaintiff. — Ct. of App., April, 1880. Coffin v. McLean, 80 N. Y. 560. 7. The assignment to plaintiff by M. was for the benefit of the creditors of the latter, he being insolvent ; it was made before the termi- nation of the replevin suit ; the principals in the undertaking, also, before that time, became insolvent. Held, that, upon equitable princi- ples, defendants were not entitled to the set-off, as the equities in plaintiff and the creditors of M. were superior to those of the defendants. lb. 8. What may be interposed as a counter-claim. Upon the trial defendant moved and was permitted, without objection, to amend his answer by setting up an over-pay- ment and demanding judgment for the amount thereof. It was prov©i that said over-payment was Qiade after the commencement of the ac- tion. Seld, that defendant was entitled to judg- ment for the amount of such overpayment; that under Code of Pro., ^ 150, subd. 1, which was in force at the time of the trial, as it was a claim arising out of the contract upon which the action was brought, it was a proper counter- claim ; that defendant might have been allowed to set it up by supplemental answer (? 177) ; and that the amendment was in effect a supple- mental answer, and gave the same right to judg- ment.— 0!. of App., Oct., 1880. Howard v. Johnston, 82 N. Y. 271. 9. In an action to foreclose a purchase money mortgage, the mortgagor set up as a counter- claim in one count, that the mortgagee falsely represented that an assessment on the premises had been adjudged void, and that he, relying upon the representations, took the conveyance without deducting the assessment, which was a valid lieu, and which he was compelled to pay. In another count defendant alleged that by mis- take both parties supposed the assessment had been adjudged void, and so defendant took the deed subject to it; this he asked to have re- formed. It appeared that the grantor made the alleged statements, and that defendant took the deed and gave the mortgage in reliance thereon. Hdd, that if the grantor believed his statement, there was a material mistake of fact ; if he did not, there was a fraud ; in either case it was a. proper counter-claim, and defendant was en- titled to the relief asked. — Ot. of App., Sept., 1880. Waring y. Somborn, 82 N. Y. 604. 10. In an action on a contract to build sewers, defendant set up, as a counter-claim, damages, for breach of contract in not completing the work. Held, that while defendant might have- claimed the contract forfeited by refusal to com- plete performance, yet not having done so it could not now insist upon it, but this did not preclude it from insisting upon the counter- claim. — Gt. of App., Jan., 1881. Taylors. Mayor- Ac, of New York, 83 N. Y. 625. 11. In an action by the plaintiff, to recover damages for an alleged conversion of certain wood by the defendant, the latter alleged, as a counter-claim, that the wood in controversy Was. the product of trees grown upon certain lands, upon which it had a mortgage ; that the plain- tiff, being a junior mortgagee in possession, and knowing that the lands were an insufficient se- curity for the payment of the defendant's mort- gage, and that the mortgagor was insolvent, wrongfully and fraudulently, and with intent t» cheat and defraud the defendant, and to impair the security of its mortgage, committed waste on the said premises, by cutting the said wood, to the defendant's damage of $500. Held, that the cause of action set up in the counter-claim, was "connected with the subject of the action," and that it might be pleaded as a counter- claim, though the action was for a tort. — <9m- preme Gt., {2d Dept.,) Sept., 1880. Carpenter v. Manhattan Life Ins. Co., 22 Hun 49. 12. The defendant set up as a counter-claim, that plaintiff had transferred to her testator a. claim against the estate of James B. Taylor, by an assignment providing, among other things, that "in case the money received by me from John Langhaar cannot be collected from the rep- resentatives of James B. Taylor, I agree to pay the same to John Langhaar, with interest," and sought to recover the money so paid by John Langhaar on the ground that she had been un- able to collect it from Taylor. Upon the trial it appeared that the claim was presented to and allowed by the executors of the Taylor estate, and afterwards again allowed by a receiver of the said estate, with the exception of one item, which was disallowed because the article had never been delivered by the plaintiff; that the estate was the subject of long-protracted litiga- tion, and that the greater part of it was thereby used up and consumed ; that the defendant did not incite and could not stop the litigation j that finally a dividend of twenty-five per cent.^ was received upon the claim by the defendant and the other creditors. Held, that it suffi- ciently appeared that the claim could not " be: collected," and that the court properly allowed the defendant to recover upon the counter- claim.— (Supreme Gt., (2d D&pt.,) Feb., 188L Schmitz V. Langhaar, 24 Hun 168. 13. Where plaintiff brought an action to re- cover for the professional services of his as» signor, an attorney-at-law, rendered in four cer- tain actions, and the defendant interposed a counter-claim for loss arising from the bad, il- legal and foolish advice of such attorney, given in another action, and demanded an affirmative judgment, and plaintiff demurred on the ground that defendant's counter-claim was not a causa 254 SET-OFF: COUNTER-CLAIM— SHERIFFS/ 1., II. of action arising out of the contract or transac- tion set forth in the complaint, as the founda- tion of the plaintiff's claim — Held, that although the plaintiif did not count upon the services ren- dered by his assignor in that action, in which £uch bad, illegal and foolish advice was given, that the contract and transaction between an at- torney and client is the employment, and that both the plaintiff's claim for his assignor's ser- vices and the defendant's claim for incapacity grew out of such employment, and that judg- ment be given for the defendant upon the de- murrer. — Supreme Ct., {2d Dept. Sp. T.,) June, 1881. Harlock v. Le Baron, 1 Civ. Pro. 168. 14. What may not be. Where sureties are sued for a default of their principal in per- forming the condition of the bond, they cannot, where their principal is not a party to the ac- tion against them, set up as a counter-claim causes of action in favor of their principal against the plaintiff. — Supreme Qt., (4(A Dept.,) Oct., 1880. Emery v. Baltz, 22 Hun 434. 15. In an action founded on fraud, a coun- ter-claim founded on contract cannot be allowed. — Ct. of App., March, 1881. People v. Dennbon, «4 N. y. 274. 16. Plaintiff's complaint alleged in substance that, under color of a contract, defendant fraud- ulently obtained money from the state by means of false representations, false vouchers and col- lusion with state officers. Defendants set up as a counter-claim a balance due them from the state for work done under the contract. To the answer a reply was served. Held, that the cause of action set up as a counter-claim was not one arising out of the transaction upon which plain- tiff's claim was founded, within the meaning of Code of Pro., i 150 ; and that a counter-claim founded on contract was not proper in such an action. lb. 17. Oounter-claims in actions by the general government. It seems that the light of a debtor of the United States govern- ment, when sued by it, to interpose a counter- claim or counter-credits, rests in all cases upon the provisions of the act of congress granting and regulating it, (Act of March 3d, 1797, §g 3, 4) ; and while, under said act, a defendant, upon complying with its conditions, may give in evidence any counter-claim he may have in his own right, which is a proper subject of set- o^ such counter-claim is available only to the extent necessary to defeat the claim of the gov- ernment, and no affirmative judgment for any excess can be rendered against it. lb. 18. Effect of reply to counter-claim. As to whether or not a plaintiff, by replying to a counter-claim, waives his right to insist that the matters therein set up are not the proper subject of a counter-claim, see Carpenter v. Man- hattan Life Ins. Co., 22 Hun 49. SETTLEMENT. Of Case, on appeal, see Appeal, 48-53, 102. SHERIFFS. I. Eights, Powers and Duties. II. Liabilities. SHAM PLEADINGS. Pleading, 46. I. Eights, Powers and Duties. 1. Rights of outgoing sheriff— com- pleting unfinished business. A judgment of foreclosure directing the sale of mortgaged prembes by the sheriff, b a " mandate " in his hands within the meaning of the provbion of Code of Civ. Pro., prescribing the duties of an outgoing sheriff, (§ 184, sub. 4,) and an adver- tisement of the prembes for sale is a "seizure" within said provisifln. — Ct. of App., Dec., 1880. Union Dime Savings Inst. v. Anderson, 83 K. Y. 174; affirming 19 Hun 310. 2. Where, therefore, a sheriff of the county of Kings had, prior to the expiration of hb term of office, under such a judgment, adver- tbed premises for sale upon a day after hb term had expired — Held, that he had authority, and was bound to proceed with and complete the sale. J 6. 3. Bonds of indemnity, and rights thereunder. The plaintiff a sheriff, while attempting to levy upon certain property under an execution, was informed that it belonged to the judgment debtor's father, and thereupon de- manded a bond of indemnity &om the judgment creditors, the defendants in thb action, who gave to him such a bond containing a provbo that, in case any suit should be brought against the sheriff, the judgment creditors should be no- tified and permitted to defend. The sheriff then levied upon the property, sold it, and paid over . the proceeds to the defendants. Thereafter he was sued by the judgment debtor's father, who recovered from him the value of the property taken. In an action brought by him upon the undertaking — Held, 1. That he could not recover upon it, as he had failed to notify the defendants of the suit, and to give them an opportunity to Jefend it. 2. That the action could not be maintained upon an implied prombe to repay the money received from the sheriff, as the express contract made between the parties prevented the impli- cation of any other or different contract. — Su- preme Ct., (3d Dept.,). May, 1881. Preston v. Yates, 24 Hun 534. ., 4. Fees. Under Code of Civ. Pro., ? 3307, subd. 4, the sheriff is entitled to three term fees after that code took effect, although he had pre- viously received three term fees. — Supreme a., {Alb. Bp. T.,) Oct., 1880. Little v. Coyle, 60 How. Pr. 76, II. Liabilities. 5. For wrongful levy. Where a sheriff has levied, under an execution, upon property beloi^ging to a person other than the judgment debtor, which property formerly belonged^ to and had been sold under an execution against said judgment debtor, and is at the time of tlie levy in the possession of the judgment debtor, holding it as a servant of its owner, an action for its conversion lies by the owner against the sheriff without any previous demand made. — SHERIFFS, II. 255 Supreme Ct., {3d Dept.,) Jan., 1881. Masten v. Webb, 24 Hun 90 ; reversing 60 How. Pr. 302. 6. For surplus moneys. While, as a general rule, a sheriff who has levied under ex- 'Ccution upon, and sold certain property as be- longing to the judgment debtor, will not be per- mitted, when called upon to account for the proceeds, to allege that the property in fact did not belong to him, yet when, upon a motion to compel payment of a surplus, such defendant has put himself on record, under oath, that the propert;^ taken belonged to his wife, and that he had no interest therem, his right to recover the alleged surplus is not so clear that the court should enforce it on a summary application. — Superior a., (^. 2".,) Nov., 1880. Prankel v. Elias, 60 How. Pr. 74. 7. For failure to return execution. The sheriff is not relieved from his obligation to make return of his proceedings upon an exe- <;ulion against the property of defendant, by the fact that prior to the return-day thereof he was served with a warrant of attachment against the plaintiff, granted upon the application of de- fendant as plaintiff" in another action. If he neglects to return the execution, he is liable to be proceeded against by attachment, and it is no defence that he has not been ruled or notified to make a return. Return can be made according to the facts, and if a sufficient excuse for not paying the money is presented, the court will not compel the sheriff to pay over. The court is this case held that as the sheriff had not been ruled or notified to make a return, the order di- recting an attachment against him should be modified by the addition of the words " unless within ten days a return of it [the execution] shall be made according to the command there- •of." — Superior Gl., June, 1880. Parker v. Brad- ley, 46 Superior 244. 8. Where, in an action against a sheriff for a failure to return a certain execution, defendant proved, in mitigation of damages, that prior to the return-day the judgments were levied upon by virtue of attachments issued to him against the judgment creditor — ^fleH, that the fact that the sheriff failed to make a valid levy by virtue ■of the execution did not destroy or weaken the -effect of the proof in mitigation ; that it was im- material whether the failure to return was be- cause of a neglect to levy, or arose after levy -and collection. In either event, while the at- tachments remained in force, plaintiff was only entitled to nominal damages. — Ct. of App., Dee., 1880. Wehle v. Conner, 83 N. Y. 231. 8. For false return. Defendant, in Jan- uary, 1877, as sheriff, levied under an execution upon certain goods belonging to P., the judg- ment debtor, and took possession. On February -3d, 1877, P. made a general assignment for the benefit of creditors. An attachment against the property of P. was issued to defendant February €th. He sold sufficient of the property to sat- isfy the execution, and then, upon demand of •the assignee and refusal of the attachment cred- itors to indemnify, delivered the residue to the •assignee and returned nuUa bona to the attach- ment and the execution issued, upon the judg- ment in the attachment suit. In an action for a false return, there was evidence that defend- ant assumed to levy under the attachment. HM, that by surrendering the property with- out calling a jury to pass upon the title, as pre- scribed by the statute, (2 Eev. Stat., ?g 4, 10,) defendant assumed the burden of showing that the property was not subject to the attachment, but that the facts established that defence, and, being undisputed, the complaint was properly dismissed.— Oi!. of App-, Nov., 1879. Mumper v. Eushmore, 79 N. Y^ 19 ; affirming 14 Hun 591. 10. For escape of prisoner. In an ac- tion against a sheriff for an escape, it is a de- fence for him if he shows that a valid order for the discharge of the debtor has been made, though it has never been formally served upon him.—Supreme Ct., (3d Dept.,) May, 1881. Rich- mond V. Praim, 24 Hun 578. 11. Where a sheriff is sued for an escape from custody under an attachment of a Surrogate's Court, the plaintiff is entitled to recover the damages sustained by him, (Code of Civ. Pro., § 158,) to wit, the sums awarded to him by the surrogate's decree, with interest from its date. — Ct. of App., March, 1881. Dunford v. Weaver, 8iN. Y. 445. 12. Where an action is brought against a sheriff for an escape, he cannot set up an error in the process under which the arrest was made which renders it simply voidable, not void. 16. 13. Instances. The complaint, in an action against a sheriff for an escape under an attachment of a surrogate, alleged that defendant wrongfully permitted the debtor to escape ; no proof of assent or Knowledge was given on the trial. Held, that a motion for a nonsuit, because of failure to prove such averment, was properly denied, as under the provision of the Code of Civ. Pro., g 1-58, in reference to such ac- tions, it was immaterial whether the escape was through negligence or voluntary on the part of the sheriff; an averment and proof that the debtor was at large beyond the liberties was sufficient, lb. In such an action the fact of the insolvency of the debtor is no defence. lb. 14. The administrator gave a bond as such ; one of the creditors furnished money wherewith to buy up the claims against the administrator, which on payment, were assigned to plaintiff. Held, that this was not a payment and ex- tinguishment of the claims, lb. 15. Two attachments were issued by the surro- gate and arrests made before said code went into effect ; the escape occurred thereafter ; it was claimed that the provision of the code did not apply. Held, untenable, as the cause of action was, not the issuing of process and arrest, but the escape, lb. 16. One A. having been arrested by a con- stable by virtue of an execution against his person, issued upon a judgment recovered by the plaintifi) was allowed by the constable to go at large upon his promise to appear the next morn- ing and give bail. On the next day the con- stable not finding A., left the execution at the sheriff's office, where it was received by a deputy who found A. and told him that he had the exe- cution and had come after him, whereupon A. voluntarily went with him to the jail and there gave bail for the limits. A. having afterwards gone beyond the jail limits, this action was brought against the sheriff for an escape. Held, that although after the voluntary escape suffered by the constable the sheriff had no right forcibly to take and detain A. under the execu- tion, yet that upon his voluntarily surrendering himself to the deputy the sheriff had the right 266 SHERIFFS, II.— SHIPPING. to receive him and was liable for his subsequent escape. — Supreme Ct., (Mh Dept,) Jan., 1881. Stickle V. Eeed 23 Hun 417. 17. Liability of outgoing sheriff for escape. An outgoing sheriff cannot be held liable for failure to deliver to his successor, or for the escape of a prisoner held on a body exe- cution, who was in custody of such outgoing sheriff, confined within the jail limits, where no certificate of election is shown to have been served by the incoming upon the outgoing sheriff. Until such service the powers of the outgoing sheriff, as to prisoners in his custody, remain unchanged, and therefore there can be no escape so long as the prisoner is in actual custody, and has not left the jail limits. — Gom. Pleas, (Gen. T.,) March, 1881. Feeriok v. Con- ner, 60 How. Pr. 506. 18. Service of summons in actions against elieriffs. Under the provision of Code of Civ. Pro., J 426, subd. 3, which author- izes the service of a summons in an action against a sheriff by delivering it at his office during office hours to his deputy, clerk or other person in charge, when a sheriff has an office in the city or village where the county courts are held, delivery of a summons at such office to a person in charge is a good service, although the I sheriff has omitted to file a notice of the place in the county clerk's office, as required by the statute (2 Eev. Stat. 285, § 55) ; he cannot, by omitting to file notice, debar a suitor of the right to serve a summons, as provided by the code. — Dunford v. Weaver, mipra. 19. Where a summons was served upon a sheriff by delivery to his deputy at his office, — Held, that an omission to prove the filing of notice on the trial, if required, was cured by the bringing of the notice to the General Term, on appeal from a judgment against the sheriff. lb. As to the powers and duties of sheriffs in re- spect to arrests, attachments and exeeutions, see Areest ; Attachment ; Execution. SHIPPING. 1. Liability of owners for delay in transportation of freight. October 14th, 1869, the defendant engaged to transport for ac- count of the plaintiffs on board its steamship Minnesota or Nevada, for Liverpool, three hun- dred bales of cotton at one hal^enny per pound ; at that time the cotton was on its way from Mo- bile, the date of its arrival being uncertain. The Minnesota was to sail on October 27th, and the Nevada on November 3d. The cotton arrived on October 23d, and was all delivered at the defendant's pier by the 26th. When it arrived there was sufficient cotton loaded, and on the pier, which had been specially engaged for the Minnesota, to fill that vessel. For that reason the plaiutiflti' cotton was not taken by that ship, but was taken by the Nevada, and arrived in Liverpool seven days after that taken by the Minnesota. In an action brought by the plain- tiffs to recover damages occasioned by a fall in the price of cotton, between the times of the arrival of the two ships — Held, that they were not entitled to recover. — Supreme Ot., (2d Dept.,) Dee., 1880. Fowler ij. Liverpool, &o., Steam Co., 23 Hun 196. 2. Contracts for towage ; and rights and liabilities arising thereunder. The owner of a cargo in a barge may recover for a loss against the owners of the steamboat towing the barge, for negligence, although there is no privity of contract. Unseaworthiness of the barge is not necessarily a defence to this action, nor is overloading. — Superior Ot., (Trial T.,) April, 1880. Davidson v. Holden, 60 How. Pr. 327. 3. Pilotage regulations. Under the act of congress of August 7th, 1789, providing that all pilots, in the bays and harbors of the United States shall continue to be regulated in conform- ity with the laws of the several states then ex- isting, or which such states might thereafter enact, the legislature of this state has the power to create a board of pilots, and refer to it the determination of the qualifications of pilots and of the suitability and qualifications of the ves- sels to be employed by them. — Supreme Ot., (1st Dept.,) Jan., 1881. People, ex rel. Sisco v. Com" missioners of Pilots, 23 Hun 603. 4. Under § 9 of ch. 467 of 1853, as amen- ded by § 1 of ch. 196 of 1854, the board of commissioners of pilots thereby created have power to prescribe the kind of boats to be used by pilots, and may exclude steam vessels from being used for that purpose, and suspend or re- yoke the license of any pilot using a steamboat in the pilotage service. lb. 5. Bights of the master. As to whether, where the master of a vessel is induced by false representations of the vendor, to give a bill of lading for a larger quantity of goods than he has received, and, in consequence, has been com- pelled to pay for the deficiency, he can be sub- rogated to the claim of the purchaser and ship- per, and so recover of the vendor, see Van San- ten V. Standard Oil Co., 81 K Y. 171. 6. Barratry by master. To consti- tute barratry of the master, it is enough that the barratrous act was done willfully, and with a knowledge that it was wrong, irrespective of any fraudulent intent on his part. — Superior Ot., Dec., 1880. Borland v. Mercantile Mut. Ins. Co., 46 Superior 433. T. Enforcement of liens upon vessels. A sailing vessel, in process of construction, was launched before it was completed, and thereafter the plaintiff contracted to furnish her with sails, as part of and to complete the work of construc- tion. She was then drawn out of the water, and again put upon the ways, and while there her construction was completed and the sails fur- nished. Held, that the contract was not a mari- time one ; and that a lien upon the vessel for the price of the sails, perfected in accordance with the provisions of the act of 1862 (Laws of 1862, ch. 482,) was valid and enforceable. — Ot. of App., Nov., 1880. Wilson v. Lawrence, 82 N. Y. 409 ; affirming 18 Hun 56. 8. Liability for collision. When two steam vessels are sailing in the same direction, and the second one, which is going at more than double the speed of the first, has given the requisite signals to indicate her intention to pass the first, but has received no response there- to, it is the duty of those in charge of the second vessel to immediately repeat her signals, and to provide against the possibility of a collision,_by slackening her speed, and, if necessary, changing her course in some degree ; and they are guilty of negligence if, instead of so doing, they assume SHIPPING— SOCIETIES AND ASSOCIATIONS. 25T that the silence of the first vessel is an acqui- escence in the intention of the second, as indi- cated hy the signals, and proceed accordingly. — Swpreme Ct., (1st Dept.,} Jan., 1881. Erwin v. Neversink Steamboat Co., 23 Hun 573. 9. Neither the statutes of the state, nor the rules of navigation, nor the decisions of the courts require a vessel to keep a lookout stationed for the purpose of discovering and avoiding ves- sels approaching from the rear, and sailing in the same direction. I b. As to BUh of lading, see that title. For further decisions as to the liability of ship-owners as Carriers, see Carriers. SIDEWALKS. MuNicrPAii Corporations, 33-35. SIGNALS. Liability of Railroad company for failure to give, see Eatlroad Cokp antes, 43. SLANDER. 1. The complaint— innuendo. Charges that plaintiff adulterated sugar, that he cheated the government, and that, being guilty of cheat- ing the government, he swore that he did not do so, are neither singly nor collectively actionable per se, but may become actionable by reason of surrounding circumstances to be pleaded and proved, from which the fair inference can be drawn that the words used were spoken and understood in such a way as to presumptively work an injury. Where these surrounding cir- cumstances are not set forth, the meaning of the words cannot be enlarged by pleading an in- nuendo, for the ofiBce of an innuendo is by a reference to a preceding matter, to fix more precisely the meaning. — Superior Ct., (Oen. T.,) Feb., 1881. Havemeyer v. Fuller, 60 How. Pr. 316. 2. It may help to explain, but it cannot enlarge the meaning of words, unless it be con- nected with some matter of fact expressly averred. It cannot be used to establish a new charge, for it is not the nature of an innuendo to beget an action, lb. 3. As an innuendo cannot perform the office of a colloquium, showing by extrinsic matter that the words charged are actionable cannot be supplied by an innuendo attributing to those words a meaning which renders them actionable. lb. 4. Where the special damage is the founda- tion of the cause of action, it is a material allega- tion and must be fully and accurately stated, lb. 5. A plaintiff who brings an action for slander, by which he lost his Customers in trade, ought in his complaint to state the names of those customers, in order that the defendant may be en- abled to meet the charge if it be false. The general allegation of the loss of customers is not sufficient to enable the plaintiff to show a particular injury. i5. 6. Evidence in mitigation of dam- ages. Facts proved in an action of slander in mitigation of damages must, to have that effect, have been known and believed by defendant at the time he uttered the slanderous words. — CJ. of App., June, 1880. Hatfield v. Lasher, 81 N. Y. 246. 7. The provision of the code (Code of Pro., g 165 ; Code of Civ. Pro., § 535) authorizing proof of mitigating circumstances, notwithstand- ing defendant has pleaded or attempted to prove a justification, was intended simply to change the rule of pleading and not the effect or admis- sibility of evidence further than the change in the form of pleading did so. lb. 8. In an action for slander plaintiff gave evidence tending to show that defendant accused her of having had a venereal disease. Evidence was given on the part of defendant tending to show improper intimacy between plaintiff and one W. Defendant offered proof that a son of plaintiff made statements at his, defendant's, house to the effect that W. ha!d the disease spoken of. Held-, that it was properly excluded, as it did not tend to prove the charge made to be true, or that defendant had information or had heard reports which should per se have led him to believe that they were true. lb. 9. The damages recoverable. In an action for slander, the court charged the jury that plaintiff was entitled to recover for the ex- pense necessarily attending her coming into court to vindicate her character ; also, that plaintiff might recover not only the damages already occasioned, but those that might be oc- casioned in the future by the speaking of the words. HeM, that the charge was erroneous. — Supreme Ct., {ith Bept.,) April, 1881. Halstead V. Nelson, 24 Hun 395. 10. Privileged communications. As to what communications are privileged, and the nature of a plea of privileged communications, see lb. For the law of lAbel, see Libel. For further decisions as to Privileged commu- nications, see Attorney and Client, IV. ; Witnesses, II. SOCIETIES AND ASSOCIATIONS. [Includes only decisions applicable to iminoorpor- ated associations and charitable societies ; for other cases, COEPOBATIOHS, and the respective titles of the varions distinctive corporate bodies, should, be con- sulted.] 1. Voluntary associations, generally —expulsion of members. An association whose members become entitled to privileges or rights of property therein, cannot exercise its power of expulsion without notice to the mem- ber, or without giving him an opportunity to be heard.— Ct. of App., Feb., 1881. Wachtel v. Noah Widows, &c., Soc, 84 N. Y. 28 ; S. C, 60 How. Pr. 424. 2. It seems that, in the absence of any agree- ment by the members, or any provision in the charter or by-laws for a different mode of ser- vice, notice should be served personally. lb. 3. One of defendant's by-laws provided for giving written notice to any member in arrears six months for dues, calling his attention to the 258 SOCIETIES AND ASSOCIATIONS. fact that he will be stricken from the roll in ■case he does not pay his dues. Another by-law imposed a fine for an omission of a member to give notice to the association of a change of residence. At the time of joining, plaintiff's intestate gave notice of his then place of resi- dence. He subsequently changed his residence, but did not give notice. Because of failure to pay hb dues, he was struck from the rolls. No notice was given him as provided by the by- laws. In an action brought to recover the sum provided by defendant's by-laws to be paid on the death of a member — Held, that plaintiff was eptitled to recover ; that the omission of the de- ceased to give notice of change of residence was no excuse for a failure to give him the pre- scribed notice. lb. 4. — dissolution. A voluntary associa- tion instituted for moral, benevolent and social objects, should not be dissolved by the courts for slight causes ; and, if at all, only when it is en- tirely apparent that the organization has ceased to answer the ends of its existence, and no other mode of relief is attainable.— 0<. of App., Sept., 1880. Lafond v. Deems, 81 N. Y. 507. 5. Such an association, where there is no power to compel the payment of dues, and where the right of the member ceases on his failure to make such payment, is not a partner- ship, lb. 6. The parties hereto were members of an association for moral improvement, relief in sickness and in case of death. In an action brought to dissolve the association, the court granted the relief, upon the ground that the as- sociation was divided into factions ; that the feelings of hostility between the members were such as to render it impossible for them to agree as to the transaction of its business and the care of its funds, and that the usefulness of the asso- ciation had departed. By the constitution and by-laws of the association, provision was reade for the redress of grievances and for the punish- ment of parties offending, and it was within the power of the association to suppress conduct of the kind complained of. An appeal was .also authorized to a higher tribunal. No complaint before the association had been made against the members charged by plaintiffs with a viola- tion of the rules. The by-laws provided that the association should not be dissolved save by a unanimous vote, and that no motion to dissolve should be entertained so long as ten members re- mained in good standing. Mdd, that the action was not maintainable ; that plaintiffs, at least, were required, in the first instance, to resort to the remedies provided by the rules of the associa- tion before seeking the interposition of a court of equity, lb. 7. The association, in order to obtain the room desired for their meetings, was obliged to hire more room than was actually required. It fitted up, furnished and sublet the portion it did not, require, and rented its own room when not in use, and from the rents received, with the other income, a considerable fund had accumu- lated. HeM,, that this was not such a departure from the objects of the association as called for a dissolution, or as authorized a conclusion that the members were copartners. lb. 8. Benevolent societies. As to the power of benevolent associations to make pro- vision for sick members; that the rights of members may be taken away by an alteration of the constitution ; and that no notice of such proposed alteration need be given, see McCabe V. Father Mathew T. A. B. Soc, 24 Hun 149. 9. The TSew York stock exchange. Plaintiff was expelled from membership of the stock exchange upon an accusation of "obvi- ous fraud," and the court held such expulsion to be illegal. In the meantime, defendant, treat- ing plaintiff as effectually expelled, sold his seat and appropriated- the proceeds to the pay- ment of his creditors in the exchange. HM, that the exchaijge, sued in the name of its pres- ident, was liable to plaintiff for the amount of the. proceeds realized for such seat. — Stiperior a., {Sp. T.), May, 1881. Sewell v. Ives, 61 How. Pr. 54. 10. The New York stock exchange being composed of more tjian seven persons, owning and having an interest in property in common, and who would be liable to an action on ac- count of such ownership and interest, this ac- tion being brought by the plaintiff, a member, in relation to his interest in that property, is properly brought against the defendant as pres- ident, lb. 11. The property wrongfully taken or appro- priated by defendant in satisfaction of a demand against plaintiff, as owner, cannot be set up in bar or in mitigation of damages suffered by him. lb. 12. Trades-unions. The orderly and peaceable assembling or co-operation of persons employed in any profession, trade or handicraft for the purpose of securing an advance in the rate of wages or compensation, or for the main- tenance of such right, is now permitted by statute. — Supreme Ct., (Monroe <§). T.,) Nov., 1880. Johnston Harvesting Co. v. Meinhardt, 60 How. Pr. 168. 13. This statute does not, however, permit an association or trades-union, so-called, or any body of men in the aggregate, to do any act which each one of such persons in his indi- vidual capacity and acting independently had not a right to do before the act was passed. lb. _ 14. This act does ndt shield a person from liability for his action in intimidating or coer- cing a fellow-laborer so that he shall leave his employer's service. Such conduct is, in its na- ture, a trespass upon the rights of business of the employer. 76. 15. If he compels by assault or violence, by threats, by acts of coercion, a fellow-craftsman to leave the employ of another, he commits an offence against the rights of such person which is hardly distinguishable from an act which should itself injure or destroy the product of that man's labor. It is a direct injury to prop- erty rights, and may be regarded as the sole proximate cause of such injury, for the laborer in such cases has not freedom of action and cannot himself be deemed to take any part in the transaction. 1 b. SPECIAL PROCEEDINGS. Reference of claim against estate. A proceeding by reference under the statute to determine and enforce a disputed claim against an estate is not an action, but a special proceed- ing. — Ct. of App., June, 1880. Boe v, Bovle, 81 N. Y. 305. SPECIFIC PERFORMANCE— STATE, I. 259 For decisions relating to any special pro- ceeding having a distinct najne, see th^ title of the proceeding, such as Contempt; Discoveey; Habeas Corpus; Mandamus; Mechanics' Lien; Pkohibition; Quo Wakranto. For proceedings to obtain the Condemnation ■of Icmd to public use, see Eminent Domain; Highways; Municipal Corporations; Eaii- BOAD Companies. For Summary proceedmga to recover leased premises, see Landlord and Tenant, IV. For proceedings /Supplementary to execution, see Execution, V. SPECIAL VERDICTS. Trial, SPECIFIC PERFORMANCE. 1. "What contracts may be enforced. As to when a court of equity will, enforce the performance of a conveyance of property, upon a verbal trust; the admissibility of oral evi- 'dence, as to the directions given by the grantor ; and when the testimony of the grantee is inad- missible after the death of the grantor, see Moyer v. Moyer, 21 Hun 67. 2. "What ■will not be. Plaintiff sued to compel defendant to e:xecute and deliver a lease of certain premises in the city of New York, for the period of four years from May 18th, 1881, upon tiie ground of part performance of an agreement to lease. Defendant claimed that plaintiff was in possession under an oral lease for one year. Seld, under the evidence, that the possession of plaintiff, as it might have been taken under a letting for a year, could not be held to be a part performance of the contract al- leged by him ; nor could the improvements upon the premises be a part performance, as they were not made in pursuance of any pro- vision of the agreement. — Com. Pleas, (Eq. T.,) Jtme, 1881. Mclneres v. Hogan, 61 How. Pr. 446. 3. The parties entered into a contract by ■which plaintifis agreed to deliver, transfer and «et over to defendant two tax leases, made by the corporation of the city of New York, " with a.11 and singular the premises therein mentioned and described, and the buildings thereon, with the appurtenances," for and during the residue of the term of years specified in the leases, for a certain sum which defendant agreed to pay as specified, and to secure a portion by bond and mortgage. In an action for a specific perform- ance of said contract, the court found that the leases, and the proceedings taken to authorize them, were irregular and defective. Sdd, 1. That as the agreement was not merely to transfer the leases, but the lands and build- ings for the terms of the leases, and the leases being invalid, so that plaintiffs could not trans- fer a good title, a specific performance on the part of defendant could not be decreed. 2. That the question as to whether defendant entered into possession under the contract was not material ; that if he did so enter it would not entitle plaintifib to a specific performance if they had no title, nor would it preclude de- fendant from objecting to the title.— Cl!. of Arm April, 1880. Bensel v. Gray, 80 N. Y. 517. 4. Subsequent to the agreement, defendant purchased and received a conveyance from the owner of the lands.- Held, that this did not cure the defects in plaintiffs' title, as the title so ac- quired was independent of and hostile to the one plaintiffi undertook to convey. 16. 5. Damages in lieu of specific per- formance. Where, in an action brought by vendees to enforce the specific performance of a contract for the exchange of real estate, the court, on account of the refusal of the vendor's wife to join in the conveyance of one of the pieces, refuses to decree a specific performance, but re- tains the action for the purpose of determining aiid awarding to the plaintiffs the damages occa- sioned by the breach of the contract, it may, in cose the vendor becomes insolvent and makes a general assignment during the pendency of the action, direct that the judgment be declared a lien on the premises which were to have been conveyed, and direct that the same be sold for the payment of the amount thereof. — Supreme Ct., (4«A Bept.,) Jan., 1881. Price v. Palmer, 23 Hun 504. STATE. L IL General Principles. Contracts with the State. I. General Principles. 1. Wbat actions may be brought in the name of the people. ■ An action to re- cover real property is not within the purview of the act of 1875, (Laws of 1875, oh. 49,) au- thorizing actions to be brought by the people of the state to recover " money, funds, credits and property " held by public corporations, boards, officers or agents for public purposes, which have been wrongfully converted or disposed of ; the word " property " associated with the pre- ceding words of specific description in the act is to be construed as referring to property of the same general character. — Ct. of App, March, 1881. People v. New York, &c., K. B. Co., 84 N. Y. 565 ; affirming 22 Hun 95. 2. The said act was not intended to confer jurisdiction to review, by means of an action, as therein prescribed, the proceedings of towns in town meetings or to set them aside upon the al- legation that the action of a town meeting w^ produced by corruption, intimidation or vio- lence. Accordingly — Held, that an action by the people was not maintainable under said act to recover lands of a town, the title to which, it was alleged, had been wrongfully acquired, through the wrongful interference of its ser- vants and agents with the action of a town meeting ; they procuring the passage of a vote authorizing the conveyance of the lands for a grossly inadequate sum, by the action of per- sons not legal or qualified voters. Ih. 3. Oounter-claims in suits by the state. A state, by coming into court as a suitor, does not subject itself to an affirmative judgment upon a set-off or counter-claim. Authority to 260 STATE, I., 11.— STATUTES, I. II. render a judgment against the state in one of its own courts cannot be implied, but must be ex- press. It cannot be claimed under general laws in which the state is not mentioned. Ac- cordingly — Held, that the provision of the Re- vised Statutes (2 Eev. Stat. 552, § 13,) providing that civil actions or proceedings instituted in the name of the state '' shall be subject to all provisions of law respecting similar suits and proceedings" instituted by individuals, save where otherwise provided, and that the state shall be liable to be nonsuited, etc., did not au- thorize an affirmative judgment against it on a counter-claim. — Ct. of App., March, 1881. People V. Dennison, 84 N. Y. 274. 4. Judgment was rendered upon the report of referees in favor of plaintiff. This was re- , versed by the General Term. The attorney- general, on appeal to this court, gave the re- quired stipulation for judgment absolute, ndd, that this was not an assent to an affirmative judgment on the counter-claims, that it waived no legal objection to the counter-claim, or im- munity of the state from such a judgment Ih. 5. It was claimed on the part of defendants that the counter-claim, having been put in issue, would be barred if no judgment was rendered thereon. Sdd, untenable ; that defendants' de- mand for a balance due, not being the proper subject of a counter-claim in this action, was not properly in issue, and the judgment ren- dered would not conclude defendants in respect thereto. lb. U. CONTBACTS WITH THE StATE. 6. Po-wers of comptroller — auditing' bills. Eelator, an appraiser duly appointed by the superintendent of the insurance department, presented an itemized bill for services as such appraiser, which was approved by said superin- tendent. Seld, that the duties of the state comp- troller, under the acts of 1873 and 1879, requir- ing him then to audit such bUl, were confined to an examination for the purpcse of seeing whether the .preliminary steps required by law had all been taken ; and that he had no power, arbitrarily, and on his own sense of right and justice, either to increase, decrease or reject the bill altogether, because the charges as made did not meet his approval. — Supreme Ct., [Alb. Sp. I.,) 1880. Matter of Murphy, 60 How. Pr. 268. STATUTE OF FRAUDS. contracts, iii. ; gtraeanty, ii. ; sales, 3-5 ; Vendor and Purchaser, STATUTES. i. constitutionamty. validity. 11. Interpretation and Effect. III. Kepeal ; AND its Effect. I. Constitutionality. Validity. 1. Constitutionality, generally. The legislature has not power to control future legis- lation upon matters of public interest. Thus, one legislature cannot prevent a subsequent one from legalizing the use of steam upon a particti- lar street. — Supreme Gt., [Alb. Sp. T,,) Jwne, 1880. People v. Long Island B. K. Co., 9 Abb. N. Cas. 181. 2. A general law for the administration of justice, either civil or criminal, which professes to be for the government of the whole state, must operate equally upon all. — Supreme Ct., (Alb. &>. T.,) June, 1881. Matter of Bayard, 61 How. Pr. 294. 3. Unless the legislature have the grounds of the application to condemn lands, showing the necessity and the public use of the lands to be taken, laid before it and incorporated in the act, such act is unconstitutional and void. — Sur- preme Ct., Dec, 1880. Carleton v. Darcy, 46 Su- perior 484. 4. Local statutes. An act providing for the length of the term of office of supervisors ir» four counties of the state, is a local bill within the meaning of § 18 of art. III. of the constitution, and is therefore void. — Supreme Ct., {Alb. Oire.,) Jan., 1881. People, ex rel. Hassell, v. Hoffinan, 60 How. Pr. 325. 5. Statutes passed under the police power of the state. Ch. 190 of 1878^ mak- ing it a misdemeanor for any person to remove any sand, earth or clay from the beach on the , south shore of Staten Island opposite and con- tiguous to the seaside boulevard, in the town of Southfield, from within twenty feet of ordinary high-water mark, so as in any manner to injure, undermine, encroach upon or endanger the said boulevard or the meadows adjacent thereto, or render the same liable to be overflowed or washed by the tide or water of the bay of New York, is constitutional and valid as against one in possession and having title to such beach, it having been passed by the legislature under and in pursuance of the police powers vested in it. — Supreme Ct., {2d Dept.,) May, 1881. Hodges. V. Perine, 24 Hun 516. II. Interpretation and Effect. 6. Referring to title or preamble. When the language of a statute is apt, and the construction plain, the construction cannot be affected by the title ; that can only be resorted to when the statute itself is doubtful or ambig- uous.— Ci. of App., Sept., 1880. Matter of Vil- lage of Middletown, 82 N. _Y. 196. 7. The preamble can neither restrict nor ex- tend the enacting part of the statute where the language of the latter is plain both as to its meaning and scope. — Supreme Ct., {i^. T.,) Feb., 1881. Hatch v. Amer. Union Teleg. Co., 9 Abb. N. Cas. 223. 8. Effect given to oontemporaneoua construction. The construction placed upon the statute of another state by the courts of that state is, as a general rule, controlling, and will be followed by the courts of this state. — Ct. of App., April, 1880. Jessup v. Carnegie, 80 N. Y. 9. It seems, however, that where a statute has- been construed by the courts of the state whose legislature enacted it, and obligations have been entered into on the faith of such decisions, a subsequent decision giving a different construc- tion will not control as to such prior transac- tions, I b. STATUTES, II., Ill,— STAY OF PROCEEDINGS. 261 10. The practical construction put upon a statute by public oflBcers whose duty it is to obey it, is not controlling upon the courts. — Cl. of App., Sept., 1880 . Matter of Manhattan Savings Inst., 82N. Y. 142. 11. Effect given to foreign statutes. The exercise of comity in admitting or restrain- ing the application of the laws of another coun- try, rests in sound judicial discretion dictated by the circumstances of the case. Where those laws are in contravention of the policy and the laws of this state, and to give them effect here, would be to the inconvenience and injury of citi- zens, the courts, at least as between citizens of this state, are not required to give them that ef- fect. — Ct. of App., June, 1880. Edgerly v. Bush, 81 N. Y. 199, 204. 12. References to prior statutes. A general reference in an act; to another act which, at the time of the reference had been amended, is a reference to the act as amended, and not as originally passed. Therefore, where_ a statute provided that an act passed at a specified date should be deemed a part of it — Held, that the act with its amendments, and not the act as it was at the dale of its passage, was intended. — Supreme a., [ith Dept.,) 1880. Matter of Mundy». Ex- cise Commissioner* of New York City, 9 Abb. N. Cas. 117. 13. What la-ws operate retrospec- tively. Ch. 254 of 1880, exempting corpora- tions organized under the general manufac- turing act from the operation of § J 5, 6 and 8 of 1 Rev. Stat. 603, providing for the determina- tion, on a summary application, of the claims of persons to have been elected ^cers of a corpo- ration, operates retrospectively, and prevents the farther prosecution of proceedings theretofore commenced, and then pending under and in pur- suance of the said sections of the Revised Stat- utes.— %>reme Gt., (1st Bept.,) Jan., 1881. Mat- ter of New York Express Co., 23 Hun 615. ■ 14. Interpretation of penal statutes. The court will not imply a term into a statute for the purpose of extending or imposing a pen- alty ; on the contrary, a penal statute will be strictly construed.— Ci!. of App., Feb., 1880. Bon- neU V. Griswold, 80 N. Y. 128. III. Repeal ; and its ErrEcr. 15. Implied repeal. Where a later stat- ute, not purporting to amend a former one upon the same subject, covers the whole subject, and was plainly intended to furnish the whole law thereon, the former statute will beheld to be re- pealed by necessary implication, although the later statute contains no repealing clause. — Ol. of App., June, 1880. Heckmann v. Pinkney, 81 N. Y. 211, 215. STAY OF PROCEEDINGS. [Includes only General 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. Consult, also, iMJUBOTioif, 6-8.] Vacating stay improperly granted. During the pendency of this action and prior to the recovery of a judgment herein, defendant procured from the Court of Common Pleas of the city of New York an order directing him to make an assignment of all his property, and discharging him from his debts, under the " Two-Third Act." Thereafter this order was, upon plaintiff's application, vacated and the dis- charge canceled on the ground that it was fraudulently and irregularly procured. From this last order defendant appealed to the General Term of the Common Pleas, and procured a stay of all proceedings in the Court of Common Pleas during the pendency of such appeal. Thereafter plaintiff having recovered a judg- ment in this action and instituted proceedings to procure the appointment of a receiver, de- fendant obtained an order staying all proceed- ings in this action pending the stay granted by the Common Pleas. Upon an appeal from that order, Hdd, 1. That the stay of proceedings was in effect an injunction staying proceedings upon a judgment for a sum of money, within Code of av. Pro., U 613, 618, and could only be granted upon the payment of the amount thereof into court, or upon security therefor being given as therein provided. 2. That in the absence of any averment of fraud or error, it would be subversive of right and contrary to precedent to stay the enforce- ment of a valid and regular judgment, without statutory authority, merely because another court might hereafter decide that the defendant was entitled to be discharged from his debts. — Supreme Ct., (Ist Bept.,) Sept., 1880. Eastman V. Starr, 22 Hun 465. As to stay upon Appeal, see Appeai., 45-47, 112. As to staying proceedings for Nonrpayment of costs, see Costs, 63. STENOGRAPHERS. Liability of Attorneys for fees of, see Attob- NEY AND Client, 2. STILWELL ACT. Abbest, 1. STOPPAGE IN TRANSIT. Sales, 13-15. SUMMARY PROCEEDINGS. Landlobd and Tenant, IV. SUPPLEMENTARY PROCEEDINGS. ExBCtTTION, V. 262 TAXES, I., II. SUPREME COURT. CotJBTS, 10-13. SURETIES, Peincipai, and Sttbett. SURROGATES' COURTS. Courts, III. SYRACUSE. Municipal Cobporations, 69. TAXATION OF COSTS. Costs, 54-60. TAXES. I. The Poweb to Impose Taxes. II. Who may be Taxed, and foe what Peopertt. Exemptions. III. Assessment and Collection. IV. Sale of Land fob Non-Payment. Tax Titles. V. Remedies foe Illegal Taxation. I. The Powee to Impose Taxes. n. Who may be Taxed, and fob what Peopeety. Exemptions. 1. Agents. Ab to the liability of an agent to taxation upon moneys held by him for in- vestment in behalf of his principal, see Matter of Boardman a. Sup'rs of Tompkins Co., 22 Hun 231. 2. Corporations, generally. For the purposes of taxation, the designation of the place in which the principal office is to be lo- cated, in the certificate of incorporation of a company organized under the act providing for the incorporation of companies to navigate the lakes and rivers, (Laws of 1854, ch. 232,) is conclusive ; and in the county thus designated alone can the personal property of the corpora- tion be lawfully taxed. — Ct. of Am., Oct., 1880. Union Steamboat Co. v. City of Buffalo, 82 N. Y. 351. 3. It seems that the facts that the principal office of such a corporation was located by its certificate with a view to avoid taxation, and that the business of the company is mainly car- ried on in another county, are immaterial, lb. 4. The certificate of plaintiff, a corporation organized under said act, located, as specified therein, the " principal office for managing the affairs of such company," instead of using the language of the statute in relation to the taxa- tion of corporations, (1 Rev. Stat. 289, I 6) to wit, " the principal office or place for transact- ing the financial affairs of the company." Sdd, that the variance was immaterial ; that, withio the meaning of said statute, the principal office was that fixed by the certificate in accordance- with the mandate of the act under which it was- incorporated, lb. 5. The act of 1859, (Laws of 1859, ch. 388,) " to make corporations in the city of Buffalo taxable the same as corporations in other cities," did not change the rule as to corporations doing business in that city whose principal office was located by its certificate in another county. lb. 6. Fire insurance companies are not taxable under Laws of 1880, ch. 542, on re- ceipts during the five months preceding the pas- sage of the act. — Supreme Ct., {Albany Oirc.,) Jan., 1881. People v. Nat. Fire Ins. Co., 61 How. Pr. 342. 7. Bailroads. Laws of 1866, ch. 546, ? 33, creating the Poughkeepsie and Eastern Rail- road Company, provided "that the real and personal property of said corporation, and the capital stock of the same, shall be exempt from • taxation for state, county, town or municipal purposes, until a single track of said road shall be completed, for a term, however, not exceed- • ing ten years. Held, that it was the intentioa of the legislature to exempt the road from tax- ation until a single track should be completed ; provided, however, that in no case should the exemption continue for more than ten years from the time of the passage of the act. — Su- jpreme Ct., (3d Bept.,) Nov., 1880. Poughkeep- sie, &c., R. R. Co. V. Simpson, 23 Hun 43. 8. Ch. 702 of 1872, providing for the regu- lating of the grade of tlie New York and Har- lem Railroad Company in Fourth avenue, in the city of New York, above Forty-second street, and the construction of viaducts and bridges over the same, was intended to relieve the pub- lic from the great dangers and annoyances of a steam railroad constantly passing and repassing with its locomotives and trains upon the sur- face of the avenue, by so placing the tracks and structures of the railroad that the avenue might, as far as practicable, be exclusively and safely used by the public, and at the same time the railroad enjoy equal or greater facilities of in- gress or egress to and from its depot in the city than before ; and the alterations and changes in the avenue are to be considered, as, in effect, the laying out or alteration and construction of a street, and the work done and structures erected to put the avenue in the condition required by the act are not a subject of taxation as against the railroad company. Supreme Ct., (IsiDepi.,) Feb., 1881. People, ex rel. New York, &c., TAXES, II., III. 263 K. E. Co., V. Commissioners of Taxes, 23 Hun 687. 9. By virtue of the said act the railroad company acquired a perpetual and exclusive easement in the lands upon which its tracks and other appurtenances were constructed, inde- pendently of the public generally and of the city, in which the fee of the soil remains. lb. 10. This easement and the railroad con- structed and used upon it are lands within the meaning of the statute relating to taxation, and are to be assessed at their fair value as a por- tion of a continuous railroad, having its con- nections and relations with the lines of rail- roads beyond the city and the terminus within it. lb. 11. Elevated railroads. The founda- tions, columns and superstructure of an ele- vated railway are included in the words " lands" and " real estate " as defined in the statute in reference to taxation (1 Eev. Stat. 387, H 1, 2,) and so are taxable as real estate. — Ol. of App., Nov., 1880. People, ex rel. New York Ele- vated E. E. Co., V. Comm'rs of Taxes, 82 N. Y. 459 ; affirming 19 Hun 460. 12. The person or corporation owning these fixtures may be assessed therefor, although the fee of the land to which they are affixed is in another ; and this without regard to the ques- tion whether that other is a natural person, or a municipality, or whether the land is or is not liable to taxation. J b. 13. The provisions of the statutes in refer- ence to the W. S. and Y. P. E. Co., to whose rights the relator succeeded, requiring that company to pay five per cent, of its net income from passenger traffic upon JManhattan Island, into the treasury of the city of New York, as a compensation to the city for the use of its streets (Laws of 1867, ch. 489, ? 9 ; Laws of 1868, ch. 85-5, ?§ 2, 8, 4,) do not exempt any part of the property of the relator from taxa- tion, lb. 14. Foreign corporations are included in the provision of the act of 1855 in relation to the assessment and collection of taxes (Laws of 1855, ch. 37,) which provides that all non- resident " persons and associations" doing busi- ness in this state " shall be assessed and taxed on all sums invested in any manner in said busi- ness the same as if they were residents." — Ct. of App., Feb., 1880. People, ex rel. Bay State Shoe, &o., Co. V. McLean, 80 N. Y. 254. 15. Under this act, a foreign corporation doing business in this state, and having a prin- cipal office or place for the transaction of that business, is to be assessed upon all sums invest- ed therein, as the personal estate of a domestic corporation is assessed (1 Eev. Stat. 390, § 6,) i. e., in the town or ward where such principal office or place of business is located, without regard to the situs of tlie property. lb. 16. Where, therefore, certain materials and machinery belonging to the relator, a foreign corporation doing business in this state, and having only one office for the transaction of its financial concerns, which was in the city of New York, was assessed and taxed in the town of O., to H., an agent of the corporation, and also a resident of that town, who had chargf of the property therein, for the purposes of the business of the corporation — Seld, that no assessment upon the property could be made save in the city of New York ; that the assess- ors of said town had no jurisdiction ; and that the assessment was void. 26. 17. A certiorari to correct the assessment-roll, by striking out the illegal assessment, was is- sued after the assessors had completed the roll and delivered it to the supervisor of the town. This fact appearing on the return to the writ, a supplemental writ was issued to the supervisor, cornmanding him to bring the roll into court, which was done, and a hearing was then had on both writs, on the merits. The objection that the writ was not the proper remedy, because of the fact-that the roll had passed out of the hands of the assessors, was not raised. Seld, that the defendants were concluded from raising it here. lb. 260. 18. Exemptions in favor of national guard. The provision of the national guard act of 1870, (Laws of 1870, ch. 80, g 253,) en- titling a member of the national guard to an ex- emption from the assessed valuation of his prop- erty to the amount of 11000, during the period of his military sftvice, was repealed by its omis- sion from the section as amended in 1875. (Laws of 1875, ch. 223, § 59.)— Oi. of App., March, 1881. People, ex rel. Sears, v. Board of Assessors of Brooklyn, 84 N. Y. 610._ 19. No contract relation existed between the state and a member of the national guard who had enlisted prior to the passage of the repeal- ing act, and whose term of service had not then expired, which would prevent it from taking effect as to him. He enlisted subject to the right of the state at any time to modify or repeal the exemption ; and upon the repeal, his right to the exemption, as to all subsequent assessments, ceased. 26. IIL Assessment and Collection. 20. The assessment-roll — affidavit of assessors, &C. To the assessment-roll of the town of Ulysses was attached, in attempted compliance with ? 8 of ch. 176 of 1851, the fol- lowing affidavit of its assessors : " We, the un- dersigned, do severally depose and swear that we have set down in the foregoing assessment- roll all the real estate situated in the town of Ulysses, according to our best information, and that, with the exception of those cases in which the value of the said real estate has been changed by reason of proof produced before us, we have estimated the value of said real estate at the sums which a majority of the assessors have decided to be the assessed value thereof; and also that the said assessment-roll contains a true statement of the aggregate amount of the taxable personal estate of each and every person named in such roll, over and above the amount of debts due from such person respectively, and exclud- ing such stocks as are otherwise taxable and such other property as is exempt by law from taxation, at the value thereof, according to our best hnowledge and belief." Seld, that the substi- tuting of the words "the assessed value thereof" for the words '' the full and true, value thereof, and at which they would appraise the same in payment of a just debt due from a solvent debt- or," the omission of the words " full and true " before the words " value thereof," and the sub- stitution of the word " knowledge " for "judg- ment," rendered the affidavit fatally defective, and any tax levied by the board of supervisors upon the said assessment-roll wholly void.— /Sit- 264 TAXES, III., IV. preme Ct., Sept., 1880. Hinckley v. Cooper, 22 Huu253. 21. The ■warrant— amending assess- ment-roll, Gieve, 9 Abb. N. Gas. 8, 24. 31. —for debt due from trust estate. In an action brought by a creditor of B. against trustees holding a trust estate for his benefit, to- reach and collect the debt out of said estate, a judgment was rendered which fixed the amount of " the surplus income of said trust estate * * * during the three years subsequent to th& commencement of the action," and directed that plaintiff's debt and costs be paid out of said surplus. No appeal was taken from this judg- ment ; a copy thereof was served on defendants' attorney and on defendants, with a formal de- mand requiring payment according to the terms- of the .tudgment. The demand not having been complied with, an order was granted on motion, directing execution against the property of T., one of the defendants. Seld, no error ;. that the order was within the power and discre- tion of the court ; that the judgment in efl^ect determined that so much of accrued income was in defendants' hands, and defendants were con- cluded thereby from showing that such was not. the fact ; and that, by disobeying the command of the judgment, T. became personally liable- for the debt.— 08. of App., June, 1880. Wil- liams V. Thorn, 81 N. Y. 381. 32. It seems that defendants' remedy in case the judgment was not correct, in determining that the amount stated was in their hands, Vras by motion to correct the judgment. lb. 33. — for costs. When a trustee during the pendency of an action brought by him,, receives and voluntarily disburses money be- longing to the estate, and the defendant there- after recovers a judgment against him for costs, the court may, if the trustee has no money wherewith to pay the judgment, allow the de- fendant to enter a judgment against him person- ally for the amount thereof. — Svpreme Ct., {3d Dept.,) Jan., 1881. Butler ». Boston and Albany E. E. Co., 24 Hun 99. 3. Meiignation,' removal and gubstitution. 34. Resignation, and substitution of new trustee. The will appointed ftur trustees of certain trusts, and gave the testator's widow, and, after her death, the competent trustees, the power to appoint a trustee or trus- tees in the place of such as should die, or be unwilling or incompetent to execute the trusts. Two of the trustees failed to qualify; of the- cther two, one promised to resign ; the widow TRUSTS, II., III.— TURNPIKE COMPANIES. 277 nominated another trustee. Upon motion to compel such substituted trustee to file a bond — Hdd, that the power of appointment was valid ; that while under Code of Civ. Pro., ^ 2418, the surrogate could entertain the application of the resigning trustee, and, under Laws of 1879, ch. 406, could appoint his successor and require a bond from him, the appointment by the widow was not dependent on such resignation, and that the surrogate had no power to require a bond from her appointee.— Westchester Co. Surr. Ct., Jan., 1881. Rogers v. Eogers, 4 Eedf. 521. 35. Grounds for removal. It is suffi- cient to authorize the.removal of a trustee, that it is shown that his relations with his two co- trustees are so unfriendly and hostile as to en- danger the execution of the trust, and that the differences between them are irreconcilable, without inquiring into the causes of such hos- tility and differences. — Supreme Ct., {2d I)mt.,) Sept., 1880. Deraismes v. Dunham, 22 Hun 86. 36. Delegation to others of the exercise due from a trustee of his judgment, is evidence of incompetency, and so is the investing of trust funds on second mortgages and conversion of £Ood securities for re-investment. — Supreme Ct., (3d Dept.,) Jan., 1880. Savage v. Gould, 60 How. Pr. 234. 37. The taking of commissions on loans made by a trustee, or by his partner for him, is ■evidence of dishonesty warranting removal. lb. 38. Where the will directs the trustees to withdraw the trust property from the testator's business and invest it in a specified manner, and they, instead of so doing, continue the busi- ness for their own profit, using therein the trust property, this constitutes such a breach of trust ■as to render their removal proper. — Ct. of App., 1880. Hooley v. Gieve, 9 Abb. N. Cas. 8. 30. Effect of removal. Where an ex- ecutor and trustee is removed and a new one ap- pointed, this does not affect a separate trust cre- ated independent of the will, and the old trustee is entitled, unless removed in appropriate pro- ceedings, to hold and control such separate trust fund. — a. of App., March, 1880. Matter of Clute, 80 N. Y. 651. 40. Effect of death of trustee. The executor or administrator of a deceased trustee of personal property found separate from the decedent's assets, succeeds to the trust, and in the absence of an assertion of claim by the bene- ficiary, may take possession of the fund, and a depositary of it will be exonerated on payment or delivery to him. — Ct. of App., Fd>., 1881. Soone V. Citizens' Savings Bank, 9 Abb. N. Cas. 146; reoerdng 21 Hun 235. See, also, Matter of Howell, 61 How. Pr. 179. III. Rights and Remedies of the Cestiji QUE Tbust. 41. In general. When accumulated in- come arising under a trust goes to those entitled to the principal sum from which the income was derived, see EUingwood v. Beare, 59 How. Pr 504. 42. Right to follow trust funds di- verted by trustee. The cestui qui trust may follow, not only the trust estate, but also other property bought with the proceeds of the trust estate and remaining in the hands of the trus- tees ; but that which is not part of the trust estate, nor was purchased with its proceeds, can- not be reached except by execution or attach- ment. A Court of Chancery cannot, for the pur- pose of enforcing the equity of the cestui que trust, authorize a receiver to seize and retain property of the trustee not embezzled from the trust estate. — Ct. of .4pp.,;i880. Hooley v. Gieve, 9 Abb. N. Cas. 8, 17. 43. Where there has been a misappropriation of a trust fund, and the fund is traced, the lien of the cestui que trust is prior to the rights of the trustee's individual creditors. lb. 44. Trustees formed a copartnership, and traded with the trust property, commingling it with their own. Held, that the cestuis que trust had a right to satisfaction out of the mingled mass, and that a receiver appointed at their in- stance having obtained possession of it, he held it free from the claims of the general creditors of the firm, and with rights prior to those of a receiver subsequently appointed at their in- stance, lb. For rules applying to any Particular class of trustees, or to persons occupying Fiduciary rela- tions, see such titles as Assignments poe Bene- fit OF Ceeditobs; Attorney and Client; Executors AND Administratobs ; Guardian AD Litem ; Guardian and Ward ; Infants ; Insane Persons ; Principal and Agent ; Receivers. TURNPIKE COMPANIES. 1. Liability for obstructing the road. Where a turnpike company placed beside the traveled part of its road a pile of stones for the purpose of making repairs, which had a ten- dency to and did frighten horses traveling upon the road, of which it had notice, and neglected • to remove the stones — Held, that it was liable for damages to a traveler upon the road, occur- ring after the lapse of a reasonable time (in this case, four or five days, J after such notice, occasioned by his horse having been so fright- ened.— Oi!. of App., Oct., 1880. Eggleston v. Columbia Turnpike Co., 82 N. Y. 278. 2. Where such notice was given to one who was the secretary and treasurer of the company, and it appeared that he had some part in the practical management and superintendence of the road—JHeW, that this was a sufficient notice to the company. lb. For the law of Highways, see that title. 278 USURY. U. UNDERTAKINGS. Appeal, 24, 25, 44, 152-160 ; Abbest, 12-16; Attachijent, 26, 27; Costs, 30- 45; Injunction, 24, 31-36; Keoeivebs, 16 ; Beplevin, 4. UNDUE INFLUENCE. CoNTBACTS, 38 ; Wills, 42, 43.; USAGE. Custom and Usage. USES. Tbusts. USURY. [Consult, also, Ihtbbisst.] 1. 'Wliat constitutes usury in respect to loans. A mortgage on certain premises owned by plaintiff haying been foreclosed, and a sale of the premises being about to take place under the judgment, he agreed with the agent of defendant B., to pay a bonus of ten per cent, for a loan of $2000, the judgment to be assigned to B. as collateral security. In pursuance of the agreement, said agent gave to plaintiff the $2000, which he paid to the holder of the mort- gage, who thereupon assigned the judgment to B., and plaintiff paid the bonus agreed upon. B. subsequently caused the premises to be sold under the decree, and they were bid off by defendant G., and judgment entered against plaintiff for a deficiency. Gt. paid no considera- tion, but acted as agent for B. Held, that the transaction with B. was a usurious loan, not a purchase by him of the foreclosure judgment ; that the agreement to pay the bonus was part of the contract of loan, not a separate agreement to pay the agent, and, so far as appeared, waff for B.'s benefit; that the contract between the parties being void, the assignment made as security for its performance was also void, and transferred to B. no right to enforce the judg- ment; and that a judgment setting aside the assignment and all subsequent proceedings- under the foreclosure judgment was proper. — a. of App., March, 1881. Wyeth v. Braniff, 84 N. Y. 627 ; reversing 14 Hun 537. 2. Effect of usury. Where a national bank, in the discount of a note, has usuriouslj? reserved a sum greater than the lawful rate of interest, the amount so reserved is forfeited, (U. S. Rev. Stat., ? 5198,) and cannot be recov- ered in an action upon the note. — Ct. of App., April, 1880. Nat. Bank of Auburn v. Lewis, 81 KY. 15. 3. Wlio may avail himself of the de- fence. A corporation cannot set up the de- fence of usury when sued upon its own obliga- tions. — Supreme Cl., (1st Dept.,) March, 1881. Frazier *. Trow's Printing, &c., Co., 24 Hun 281. 4. The assignee of a mortgage given by the defendants having threatened to foreclose the same, and the defendants having applied to the plaintiff to take an assignment thereof, the lat- ter agreed to take such assignment and extend the time of payment for one yea^r, in considera- tion of which the defendants paid to him the sum of $250. The plaintiff took the assign- ment in good faith, and without any notice or knowledge that the mortgage had been given to secure an usurious debt. In an action brought by him to foreclose the mortgage — Held, that the defendants were estopped from alleging that the mortgage was void for usury. — Supreme ■ Ct., {1st Dept.,} March, 1881. Barnett v. Zaoha- rias, 24 Hun 304. 5. For an illustrati6n of the principle that an agreement to waive the defence of usury, and not to set it up as a defence is void, and cannot be enforced, see Mabee v. Crozier, 22 Hun 264. 6. Pleading usury as a defence. In an action brought to recover the amount of a promissory note discounted by a national bankj it cannot be set up by way of counter-claim or set-off that the bank, in discounting a series of notes, the proceeds of which were used to pay other notes, knowingly took a greater rate of interest than that allowed by law. The remedy in such case is an action of debt to recover back twice the amount paid. Nat. Bank of Auburn V. Lewis, mpra. 8. P., Farmers', &c., Nat. Bank V. Lang, 22 Hun 372. VENDOE AND PUECHASER. 279 V. VALUE. Opinions of ^witnesses, to prove, see Wit- nesses, 57. VENDOR AND PURCHASER. [Includes only decisions relative to the requisites of, and rigbts and liabilities arising out of. Executory cfmtracts for the sale of land. For the law applicable to Conveyances^ and the C&v&nants contained in them, see CovHiTANTs ; Deeds. As to the ^ecific perform- ance of contracts to sell land, see, also, Spi^ciFio Per- FOBMAHgE.] 1. Rights of the purchaser, generally. When, after a statement by the vendor of the use to which adjoining buildings owned by him are to be applied, the vendee may restrain him from applying them to other uses, see Mus- grave v. Sherwood, 23 Hun 669 ; 60 How. Pr. 339. 2. Under the provision of the Revised Stat- utes (1 Eev. Stat. 749, ? 3,) which provides that the title of a bona fide purchaser, for a valuable consideration, from the heirs-at-law of a person who died seized of real estate, shall not be de- feated or impaired by a devise by such person of the real estate so purchased, unless the will containing the devise shall have been duly proved or recorded within four years after the death of the testator, except, among other things, where it appears that the will has been concealed by the heirs or some one of them, the exception does not apply where the devisees or some one of them have knowledge and posses- sion of the will, and it is taken from such pos- session clandestinely by an heir and secreted or destroyed; it only applies to a concealment, which leaves the devisees in ignorance of their rights under the will, and deprives them of knowledge of its existence. — C*. of App., Jan., 1880. Cole V. (Jourley, 79 N. Y. 527. 3. Constructive notice — duty to in- quire. The facts which will put a purchaser of land upon inquiry, and which will charge him with knowledge of equities arising from unrecorded instruments, considered and held to exist in this case. — Supreme Ct., (ith Dept.,) Apnl, 1881. Brumfield v. Boutall, 24 Hun 451. 4. A purchaser, for a valuable consideration, is not chargeable with constructive notice that the conveyance to him was made by his vendor with intent to defraud creditors ; actual notice is required to impair or affect his title. (2 Eev. Stat. 137, ? 5.)— a. of App., Dec., 1879. Steams V. Gage, 79 N. Y. 102. 5. Action for specific performance. Where, by a contract for the sale of lands, the vendor agreed to pay all taxes and assessments, from its date, until the purchase money was paid as provided, and then to convey by war- ranty deed, and where at the time fixed for per- formance of the contract, there were taxes and assessments upon the lands — Held, that upon refusal of the vendor to perform, the vendee was entitled to maintain an action for specific per- formance ; that she was not confined to an action at law upon the covenant to pay the taxes. — a. of App., Feb., 1880. Stones. Lord, 80 N. Y. 60. 6. The vendor tendered a deed, executed by himself and wife, containing a covenant on the part of the grantee to pay such taxes and aasess- meuts. Upon objection being made, he struck out said covenant. Held, that the vendee was not required to accept the same, as the altera- tion, without the consent of the wife, did not remedy the defect, and it vitiated the deed. 1 b. 7. Bight to relief for defect of title. A purchaser of land, who has paid part of the purchase money and given a mortgage for the residue, will not be relieved against the security given on the ground of defect of title, wtere there is no allegation of fraud in the sale, and he has not been evicted. — CI. of App., June, 1880. Eyerson v. Willis, 8-1 N. Y. 277, 280. 8. By a contract of sale of certain premises in the city of New York, defendant agreed to give a, warranty deed, and also a quit-claim deed, or release from the corporation. If this could not be done at the time of the delivery of the warranty deed, defendant was to indemnify so as to insure a delivery by May 25th, 1875, but this not to affect defendant's responsibility under his warranty. Plaintiff was to give a mortgage for a portion of the purchase price, wliich, it was agreed, was to remain as security for the delivery of the quit-claim or release, and was not to be collectible until such delivery. Defendant executed and delivered his warranty deed, receiving the mortgage as stipulated. Held, that an action to have the mortgage can- celed and discharged because of defendant's failure to procure and deliver the quit-claim or release within the time specified was not main- tainable, lb. Q. Rescission. A vendee, entitled to re- scind a sale for fraud, must act promptly on dis- covery of the fraud, and restore or offer to re- store the property. By dealing with it as owner after such discovery, he deprives himself of this remedy. — O, of App., Jan., 1881. Sohiffer v. Dietz, 83 N. Y. 300. ,10. Where fraud upon the part of the vendor is claimed on the sale of real estate, a continu- ance in possession Jiy the vendee after discovery of the fraud is evidence of an intent to abide by the contract. lb. „ 11. Defendant, in execution of a contract to convey certain premises to plaintiff by deed, with warranty free and clear from all incum- brances, executed a conveyance May 10th, 1872. At the time of the execution of the contract and of the delivery of the deed, defendant was mar- ried, but his marriage was kept secret. Defend- ant then supposed it to be invalid. Plaintiff had no knowledge of it until the fall of 1873, and defendant knew that plaintiff believed him to be unmarried. In an action to rescind the sale and conveyance— JETeZd, that defendant's be- lief in the invalidity of the marriage did not justify his omission to disclose the fact to plain- tiff, as, if void, or if it could be annulled, the fact of the formal marriage would be a cloud on title ; that, therefore, a finding of fraud was jus- 280 VENDOE AND PURCHASER— WATER-COURSES. VERDICT. tified, and on the discovery thereof plaintiff was entitled to demand a rescission. lb. As to Judicial sales, and rights of purchasers thereunder, see Execdtion, 7-11; Judicial Sales ; Moktgages, 63-73. As to sales of Chattels, see Sales. VENUE. Kemoval of Causes ; Trial, II. Tkial, VII. VERIFICATION. Pleading, V. VILLAGES. Municipal Cobpokations, 52, 58-63, 67, 68, 72. w. WAGERS. As to Contracts in the nature of CONTBACTS, 27-36. WAGES. Mastek and Servant, 1 ; Services. WAIVER. Of Strict perfomumee of contract, see CoN- 'tracts, 50, 61. Of Demand and Notice, see Bills op Ex- change, 9, 10. Of objections that should be Taken at the trial, see Appeal, 15-18, 59, 119-123. Of Right to trial by jury, see Trial, 3, 4. Of Preliminary proofs of loss, see Insurance, 8-12, 41, 42. Of Condition in fire policy, see Insurance, 15-32. Effect of Appearance as a waiver of defects, see Action, 12. WAR. 1. Proceedings under the confisca- tion acts of congress, while in the nature of procedings in rem, operate only to divest the title of the party alleged to be the owner of the property seized, and judgment of confiscation and forfeiture does not divest or affect the title of third persons originating prior to the seizure, or of the real owner not proceeded against. — Ct. of App., Jan., 1881. Kisley v. Phenix Bank of New York, 83 N. Y. 318, 332. 2. The confiscation acts do not contemplate or authorize the confiscation of the property of a corporation. Jb,, 335. WARD. Guardian and Ward. WARRANTS. Arrest. II. ; Attachment, 22-25 ; Ex- tradition, 2, 3. warranty- Covenants, 7 ; Sales, 16, 17. WATER-COURSES. [Consult, also, MiU/S ; Bipabiait Bights.] Natural flo^w of stream— obstruc- tions. Plain tiifa opened a quarry on their lands, the excavation forming a reservoir into which the surface water from the contiguous lands collected. In the spring, when plaintiffs commenced work, they pumped this water, to- gether with that coming from the melting snows and from small water-courses cut off by the excavation, into a water-course which flowed from their lands across defendant's land below. This water, if the excavation had not been made, would have naturally flowed into the stream and although the flow of water was greater when pumping than it otherwise Would have been, the natural capacity of the water- course was sufiicient to carry off the water so discharged together with the other waters run- ning in the stream. Defendant filled up the channel of the stream and erected a dam across it upon his premises, thus throwing back the water on to plaintiff's land. Held, that an ac- tion was maintainable to compel ' defendant to remove such obstructions and to restrain him from interfering with the flow of water in the stream. — Ct. of App., June, 1880. McCormick V. Horan, 81 N. Y: 86. WILLS, I., ir. 281 WEST TROY. Municipal Cokporations, Y2. WHARVES. As to the Regulation of wharves and piers in New York city, see New York City, 3, 4. WIDOW. Kight of, to Dower, see Dower. WILLS. I. The Power to make a Will ; and how Exercised. II. Provino a Will. III. Validity. IV. Law of Place. V Interpretation and Effect. 1. Oenerai rules of construction. 2. The residuary clause. 3. The doctrine of equitable conversion. 4. Actions for the construction of wills. VI. Contesting a Will for Incapacity or • Undue Influence. I. The Power to maxe a Will ; and how Exercised. 1. Testamentary capacity. Mere ec- centricity, and disbelief, on the part of the testa- tor, in any specific religious doctrines, will not suffice to destroy his testamentary capacity. — Westchester Co. Surr. Ct., Dec., 1880. Hartwell v. McMaster, 4 Kedf. 389. 2. Execution and publication. An imperfect or indistinct subscription of the testa- tor's name may be regarded as his mark, and will thus constitute a compliance with the re- quirements of the statute. lb. 3. A. came, with his will in his pocket, to the house of his brother Jeremiah, who lived with his daughter Isabel, and said, "Jeremiah, I want you and Bell to witness my will." He then asked for a pen and ink, put his hand in his pocket, took out the will and signed it. It was then signed by the brother and daughter, under the usual attestation clause, and he then put it in his pocket and carried it away. Seld, that there was a sufficient publication of the yfill— Supreme Ct., {2d Dept.,) Sept., 1880. Dar- ling V. Arthur, 22 Hun 84. 4. As to what constitutes a sufficient execu- tion and publication of a will by the testator, see Von Hofflnan o. Ward, 4 Kedf. 244 ; Stein v. Wilzinski, Id. 441: Dack v. Dack, 84 N. Y. 663. 5. Revocation. Where, after the execution of his will, the testator makes erasures and in- terlineations therein, without intending to re voke, and without re-executing the same, the will will be admitted to -probate as originally executed. The cancellation, obliteration or de- struction of a will with intent to revoke it, de- clared by the statute to constitute a revocation, (3 Eev. Stat. 63, [6th ed,] ? 40,) refers to the whole will, and not to particular provision thereof.— JV.F. Swrr. Ot., Dec, 1879. Matter of Prescott, 4 Eedf. 178. II. Proving a Will. • 6. What proof is admissible and suf9.cient. An executor of a will is a com- petent witness to prove its due execution, al- though not a subscribing witness.— Oi!. o/jlpp., Jan., 1881. Rugg v. Rugg, 83 N. Y. 592; af- firming 21 Hun 383. 7. Upon the probate of a will, the benefici- aries thereunder cannot testify as to personal transactions with the testatrix tending to estab- lish her testamentary capacity. — Supreme Ct., (3d Dept.,) Nov., 1880. Snyder v. Sherman, 23 Hun 139. 8. When the admission of improper evidence by a surrogate, furnishes no ground for revers- ing a decree admitting a will to probate, see lb. 9. Upon an application for the admission to probate of a will and three codicils thereto, it appeared that both of the attesting witnesses to the first codicil resided in the State of New Jersey, and that the codicil was there executed. One of the witnesses was called and testified to the formal execution of such codicil. While the other witness thereto, who was present in court, was being examined as to other matters, the counsel for the contestants, none of whom were infants, admitted the formal execution of the said codicil, and that the signature of the witness thereto was in his handwriting and was made by him. Held, that the statutory require- ment that all the witnesses to a will must be ex- amined, is subject to the qualification that they are all residents of this state, and that under the circumstances of this case the proof of the due execution of the codicil by the witness who tes- tified to its execution was sufficient to require it to be admitted to probate. — Supreme Ct., (2d Dept.,) Sept., 1880. Swenarton v. Hancock, 22 Hun 38 ; affirmed, 9 Abb. N. Cas. 326. 10. That a recital in the attestation clause, which asserts that a request was made by the testator to the witnesses to sign, will supply the defect of failing to prove such request by the testimony of the witnesses examined on the pro- bate, see Walsh v. Walsh, 4 Redf 165. 11. Effect of uncertainty or discrep- ancy in testimony of subscribing wit- nesses. The failure of recollection of the subscribing witnesses to a will, as to what oc- curred at the time of signing, will not defeat the probate thereof if the attestation clause and the surrounding circumstances satisfactorily es- tablish its execution. — Ct. of App., Jan., 1881. Rugg V. Rugg, 83 N. Y. 592. 12. Where the witnesses difier in their testi- mony as to the mode of execution of the will, and one of them is the lawyer who drew the will and attended to its execution, his testi- mony is entitled to greater weight than that of the other witness, who is unfamiliar with the execution of wills. — Kings Co. Surr. Ct., July, 1880. Neiheisel v. Toerge, 4 Redf 328. 13. Wben probate will be refused. Probate of two codicils to a will refused, on the 282 WILLS, II., III., IV., V. ground that they were not the free or voluntary act of the testator, but were procured by fraud- ulent misrepresentations. Swenarton v. Han- cock, siwpra. 14. Circumstances under which the court will refuse to admit a will to probate, on the ground that it was procured by undue influence, con- sidered ; and in this case the decision of the surrogate in refusing probate to the will _ in question, affirmed, on the ground that the ill- ness and mental condition of the testator at the time of its execution, imposed upon the legatee the burden of establishing, by clear and satis- factory evidence, that she had not unduly used her influence in procuring its execution ; and that she had failed to give such evidence. — Supreme Ct., (1st Bept.,) Nov., 1880. Phipps v. Van Kleeck, 22 Hun 541. ni. Validity. 15. Aooumulations of inoome. A tes- tator devised and bequeathed to his exiecutor the sum of $11,000 in trust, to invest the same in bond and mortgage, and keep the accumula- tions on the same invested until the decease of his sister-in-law, and then to pay the same to her children, as therein provided. The balance, rest and remainder of his estate he devised and bequeathed to two persons named in his will. Held, 1. That the direction as to the accumu- lation of the interest on the $11,000 was void. 2. That the said interest should be paid over to the residuary legatees, and not to those en- titled to the fund on the death of the sister-in- law of the testator. — Supreme Ot., {3d Dept.,) Jan., 1881. Matter of Dey Ermand, 24 Hun 1. 16. The testator directed his trustees to set apart a third of the income of his residuary estate for the use of his great-granddaughter during her life ; the principal sum to go to her children, or, in case of her death without issue, to others. By a codicil, he directed that so much of such income as should not be needed, in the judgment of his executors, for her sup- port, should be invested during her minority, and any accumulation of interest should be added to the principal. Seld, that though the terras of the codicil, as to accumulations of in- come, were in conflict with the provisions of the Bevised Statutes, yet that this invalidity did not affect the residue of the trust, and thit the invalid portion might be dropped. — Supreme Ct., (1st Dept. Sp. T.,) May, 1881. Barbour v. De Forrest, 61 How. Pr. 181. 17. The testator directed that $30,000 which he had invested in United States bonds, be " kept invested until my youngest grandchild, now born, or that may hereafter be born before the final distribution of my estate, shall be of full and lawful age," and that his executor should, out of the income thereof, pay for repairs to stones in a cemetery lot, and make up any de- ficiencies in the funds provided for the payment of legacies, and that they might, from time to time, after five years from the time of his death, make division and distribution of any surplus that might then be in their hands, and also, if they should see fit at the same time, divide, and distribute $10,000 of said principal and bonds, thus invested, between his children and grand- children, and that the remaining $20,000 should be divided among them when the youngest grandchild, born, and that might within twenty years be bom, should arrive at full age, or, if a granddaughter, should sooner be lawfully mar- ried. Held, that the clause involved a violation of the statute against the accumulation of income, and of the statute against the suspension of the absolute ownership of personal property, and that, as the part which was good could not be separated from that which was bad, that the whole must be rejected. — Swpreme Ct., (2d Dept.,) Dee., 1880. Smith v. Edwards, 23 Hun 223. 18. Suspension of power of aliena- tion. A testator, by his will, directed his ex- ecutor to sell and dispose of all the rest, residue and remainder of his estate, real and personal, "such portion of the said real estate as may be in the State of New York, to be sold at public sale in the city of New York, notice thereof having first been given of the time and place of sale for three successive weeks, in four of the daily newspapers of the said city," and to dispose of the proceeds as therein directed. He also provided that, " in view of the present de- preciation in real estate, it is my will that my executors, or such of them as shall qualify, ex- ercise their discretion as to the time to sell the same — not longer than three years after my de- cease. * * * All rents, income or profits from my estate, until it is finally distributed, I direct my said executors to divide semi-annually among those to whom the bequests are made, in the proportion the amount of the said bequests bears to the said net income or profit." Sdd, that the direction to divide the rents, income and profits of the estate did not vest a fee in the executors by implication, and that the direction as to the time and mode of sale created* no unlawful suspension of the power of aliena- tion. — Supreme Ct., (Isl Dept.,) Dee., 1880. Rob- ert V. Corning, 23 Hun 299. IV. Law of Place. V. Intehpbetation and Effect. 1. General rules of construction. 19. Ascertaining the testator's in- tent. A testator, by his will, directed his ex- ecutor " to sell and dispose of" sufficient real estate to pay off a specified mortgage, and then provided that, " at the death of my said be- loved wife, my executor shall and dispose of all my estate, and the accumulations and profits thereof, either by public or private sale," and divide the avails thereof as therein provided, Seld, that the word " sell" might be supplied before the word "and," or the word "and" be omitted, in order to carry out the evident inten- tion of the testator. — Supreme Ct., (lit Dept.,} Dec., 1880. Hall v. Thompson, 23 Hun 334. _ 20. The second item of the testator's will was as follows : " As to my worldly estate, and all the property, real, personal and mixed, of which I shall die seized and possessed, and to which I shall and may be entitled to at the time of my decease, I devise, bequeath and dis- pose of in the following manner, viz." He then gave directions as to the payment of certain sums, and provided that, upon the death of his wife, the executor should sell his estate and, dispose of the avails among certain persons therein named. Held, that the intention of the WILLS, V. 283 testator was to blend all his property, real, per- sonal and mixed, into one estate, and appro- priate it to the objects expressed in the will, and to the discharge of all the burdens created by the terms thereof; and that the legacies were, therefore, a charge upon the real estate, lb. 21. The will of T., after directing the pay- ment of his debts and funeral expenses, and after giving a series of legacies, gave the residue of his estate, real and personal, to his wife. Then followed this clause: "And I authorize my executors, after paying my just debts and funeral expenses, to pay over to my wife $5000 in cash out of the bequeath to her, and before any of the other bequeaths are paid off." The executors were authorized and direc ed to sell and dispose of all of the real and personal estate, with power to reserve certain parcels of real estate until prices specified could be ob- tained therefor. In an action to obtain a con- struction of the will — Held, that the intent of the testator was to charge the payment of the legacies upon the real estate ; also, that the gift to the wife was in lieu of dower. — Ct. of App., Feb., 1881. Le Feyre v. Toole, 84 N. Y. 95. 22. The testator devised a house and lot to ^is wife, and authorized his executors " to pay off any mortgages or other encumbrances there may be on said house and lot at my death, pro- vided the title is in me." It appeared that when the testator purchased the premises, the convey- ance was made directly to his wife, and the title remained in her up to the time of his death. She, in the deed, assumed payment of a mort- gage on the property. The payment upon the purchase price was paid by the testator, and he paid the taxes and a portion of the principal of the mortgage, and personally guaranteed the payment of the remainder. Held, that the testa- tor intended that the executors should pay off this mortgage if the title remained at his death in the condition in which he had placed it. — Supreme Ct., {1st Dept. Sp. T.,) June, 1881. Sutherland v. Clark, 61 How. Pr. 310. 23. Construction as to property de- vised. The testatrix devised two lots and a gore "on the southerly side of Forty-ninth street, near Eighth avenue." Upon the trial of an action for the construction of the will, extrinsic evidence showed that the testatrix owned no property on Forty-ninth street, but did own property on One Hundred and Forty-ninth street, answering fully in other respects, the terms of the devise ; and further, that persons living above One Hundredth street drop the One Hun- dred, and designate the lot by the remaining fig- ures. Held, that the devisee under the will should take the two lots in question. — Supreme a., {Sp. T.,) Dee., 1880. Peters v. Porter, 60 How. Pr. 422. 24. "Wlien after-acquired property- will pass. A testator, by his will made in 1858, provided that after all his lawful debts were paid and discharged, he gave, bequeathed and disposed of the residue of his estate, real and personal, as follows : " To my beloved wife Harriet, I give, devise and bequeath all my household goods and personal property, to be hers forever, I also give and bequeath to my be- loved wife Harriet all my real estate now possessed by me, during the term of her natural life, and after her death to be disposed of as follows, to wit : to my son Joha," charged with the payment of certain legacies. After the date of the will, the testator sold the farm upon which he then re- sided, and moved upon and purchased another one, of which he died seized and possessed. Held, that the after-acquired real estate passed! by the will to the devisees, and that they and not the testator's heirs-at-law were entitled there- Xo.^Swpreme Ol., {ith-Dept.,) April, 1881. Lent V. Lent, 24 Hun 436. 25. Construing separate provisions. Where an estate is given in one part of a will in clear and decisive terms, such estate cannot be taken away or out down by any subsequent words that are not as clear and decisive as the words of the clause giving the estate. — Ct. of App., June, 1880. Boseboom v. Eoseboom, 81 N. Y. 356. 26. The will of E. contained this clause : " I give and bequeath my beloved wife Susan, one- third part of all my property, both real and'per- Bonal, and to have the control of my farm as long as she remains my widow, * * * and at the death of my wife all my property, both real and personal, to be equally divided between my eight children." In an action for partition of the farm referred to, of which the testator died seized — Held, that the widow took a fee of one- third of the premises. I b. 27. Construction as to time. WTien the will speaks from time of testator's death. For some purposes a will is consid- ered to speak from the date of its execution, and for others from the death of the testator and not from its date. The general rule is that a will speaks from the death of the testator, where there is nothing in its language indicating a contrary intention. When a testator refers to an actual existing state of things, the language is referen- tial to the date of the wiU.-Supreme Oi!.,.4«5'.,1881. Merriam v. Wolcott, 61 How. Pr. 377. 28. Where a bequest of personal property contains no express words of gift, but the gift arises by implication, from a clause directing the fund to be divided among persons named, such clause is also evidence of an intent that the gift is not to vest in interest until the time for dis- tribution has arrived. — Supreme Ct., (2d Dept.,) Dec., 1880. Smith v. Edwards, 23 Hun 223. 20. A testator, by his will, devised all his real and personal property to his executors, in trust, to collect and receive the income and pay over the same to his five children, in equal pro- portions, until his daughter Ellen, or, in case of her death, his daughter Margaret, should be- come of age, at which time he directed his ex- ecutors to sell all his real estate and convert all his personal property into money, and to then divide his said estate between his said children equally, share and share alike ; and in case any of his children should die before such distribu- tion, leaving issue surviving, then such issue to take the share to which hie, her or their parents would have been entitled if living. Held, that the shares did not vest in the children until the time for the distribution had arrived, and that the share of a daughter who had died previous to that time, intestate and without issue, went to the surviving children and not to her hus- band.— Suprme a, (2d Dept.,) Dec., 1880. Ma- gill V. McMillan, 23 Hun 193. . 30. The estate or interest which will pass. The will of F. disposed of his property as follows : " I, * * * give and bequeath all my property, real and personal, to my beloved wife, Mary, only requesting her, at 284 WILLS, V. the close of her life, to make such disposition of the same among my children and grandchil- dren as shall seem to her good." Held, that the gift to the wife was absolute ; that the con- cluding words being merely words of suggestion, not of direction or command, did not create a trust.— (7J. of App., Nov., 1880. Foose v. Whit- more, 82 N. y. 405. 31. The will of H. gave to his executors such portion of his estate as should be neces- sary to carry out certain specified purposes, among Ihem the following: "To divide the sum of $20,000 into as many shares as there "■fihall be lawful issue of my deceased nephew Matthew Horn, living at my death, and to in- vest the same and apply the interest and income from each of said shares to the use of each of said children respectively, and as they respect- ively depart this life, to pay over the principal of said share to their lawful issue, share and share alike." At the time of the execution of the will and of the death of the testator, there were living three children of said Horn, and seven grandchildren, two of them chil- 'dren of a deceased daughter. In an action for a construction of the will —Held, that the provision did not include the grandchildren, ■either the children of the deceased child or of the living children ; and that they took no in- terest under it. Ct. of App., March, 1881. Palmer v. Horn, 84 N. Y. 516. 32. Taking per stirpes and per cap- ita. The rule that where a gift is made by will to a person described as standing in a cer- tain relation to the testator, and to the children of another standing in the same relation, they take per capita, not per stirpes, is not absolute ; it la to be governed by the context, and will yield '' to a very faint glimpse of a diflFerent intent." — Ct. of App., June, 1881. Ferrer v. Pyne, 81 N. Y. 281. S. P., Everitt i;. Carman, 4 Eedf. S41. 33. Instances of the construction of pe- culiar testamentary dispositions of property, and of the determination of questions arising upon unusual language employed by the testator, and the facts existing in the particular case. El- lingwood V. Beare, 59 How. Pr. 504 ; Chapman «. Nichols, 61 Id. 275 ; Lottimer v. Blumenthal, Id. 360 ; Merriam v. Wolcott, Id. 377 ; Denike ». Harris, 23 Hun 213 ; Van Voorhis v. Brint- nall, Id. 260 ; Thompson v. Conway, Id. 621 ; Monarque v. Monarque, 80 N. Y. 320 ; Vincent V. Newhouse, 83 Id. 505 ; Williams v. Free- man, Id. 561 ; Delauey v. Van Aulen, 84 Id. 16 ; Denike v. Harris, 84 N. Y. 89 ; Livingston v. Gordon, Id. 136 ; Ham v. Van Orden, Id. 257 ; Ireland v. Ireland, Id. 321 ; Meeker v. Meeker, 4 Eedf. 29 ; Matter of Boyd, Id. 154 ; Florence v. Sands, Id. 206 ; Matter of Eidgway, Id. 226 ; Wood V. Seward, Id. 271 ; Everitt v. Carman, Id. 341 ; Strang v. Strang, Id. 376 ; Mumford v. Bochester, Id. 451 ; Marx v. MoGlynn, Id. 455. 2. The residuary clause. 34. What -will pass under it. When a testator gives and bequeaths all the rest and residue of his estate, both real and personal, of every name and nature, remaining after his debts have been paid, to his wife, who is also appointed executrix, for her own use and ben- efit, to be disposed of as she may desire or deem just, the title to a promissorjr note indorsed by him in blank and deposited in a bank for col- lection, passes at once to his widow, individ- ually, her title thereto being derived from! the provisions made for her in the will, and not from the fact that letters testamentary were sub- sequently issued to her thereon. — Swpreme Ct., (\st Dept.,) March, 1881. Barlow v. Mvers, 24 Hun 286. 35. Wliat will not pass. The plaintiflf's testator was a member of the Conductors' Life Insurance Company, the ^by-laws of which pro- vided that, upon the death of any member, each of the survivors should pay the sum of one dollar, and that the premium so to be paid in case of the death of any member, " may be dis- posed 6f by his last will and testament, .other- wise it shall belong to and be paid to his widow; or in case he shall leave no widow, then to the heirs and legal representatives of the deceased ; and in the absence of such will, and in case such member leave no widow, heirs or legal represen- tatives, such premium shall revert to the com- pany." Held, 1. That the power reserved to the testa- tor to dispose of the amount payable at his death was in the nature of a power of appoint- ment, and must be exercised as such. 2. That the said amount would not pass as a part of his estate under the residuary clause ^of his will, but only in pursuance of a clause ex- pressing in clear and unmistakable terms the intention of the testator to divert it from the purposes to which by the by-laws of the com- pany it was to be devoted. — Swpreme Ct., [ith jDepl.,) Jan., 1881. Greeno v. Greene, 23 Hun 478. 3. The doctrine of equitable eonzerdon. 36. What amounts to an equitable conversion. A testamentary provision giv- ing executors power to convert the estate into money, and directing them to distribute the money among persons named, constitutes an equitable conversion ; and the will must be con- strued as a will of personal property. — Supreme Ct., (Sp. T.,) Aug., 1880. Flanagan v. Flanagan, 8 Abb. N. Cas. 413. S. P., Gallup v. Wright, 61 How. Pr. 286. 37. What does not so operate. A will made in 1663 directed that the " four first born children" of the testator "shall divide out of their father's property the sum of one thousand guilders, to be paid by them out of the proceeds of a certain farm * * * before any other division takes place." Hdd, tliat this did not work an equitable conversion of the farm from' real estate into personalty; that the dis- tinction in the English law between the descent of real and the distribution of personal estate, upon which the doctrine of equitable conversion was founded, did not exist in the law which pre- vailed in New Netherlands at the time the will was made ; also, that the effect of the' provision was simply to create a charge upon the land in the hands of the devisees ; and that assuming that by implication a power and duty was im- posed on the "universal heirs" to sell, this power would not devolve upon an administrator with the will annexed. — Ct. of App., Jan., 1881i Van Giesseu v. Bridgford, 83 N. Y. 348 ; affirm- ing 18 Hun 80. WILLS, v., VI.— witnesses; I. 285 4. Actions for the construction of wiUs. 38. When an action will lie. An action to obtain the constniction of a will is not a proper one in which to determine the claim of a receiver, appointed in proceedings supplemen- tary to execution, issued upon a judgment re- covered against one of the legatees, since de- ceased, to the share of the judgment debtor in the estate.—iSljyreme Ct., (2d Dept.,) Dee., 1880. Smith V. Edwards, 23 Hun 223. 39. Right of executors to sue. Ex- ecutors and trustees can only maintain an action to obtain a construction of a will in those cases in which some continuing duty — some trust which requires and will require action for some time to come — is imposed upon them thereby. — Supreme Ot., (3d Dept.,) Sept., 1880. Powell v. Demming, 22 Hun 235. 40. The fact that an executor is about to close up the estate, and that the parties interested therein do not agree as to the construction to be given to certain provisions of the will, and as to the distribution of the property thereunder, does not authorize the executor to maintain an action to obtain a construction of the will ; such questions should be raised and settled upon his final accounting before the surrogate. lb. Compare Sutherland v. Clark, 61 How. Pr. 310. 41. The plaintiff's testatrix, after making certain specific and pecuniary legacies, and be- queathing the residue of her personal property to a Mrs. Dill, devised her real estate to two persons named in the will, charged with the payment of all her just debts, funeral and testa- mentary expenses, and pecuniary legacies. One of the said devisees, acting, as he claimed, as executor, collected the rents of the real estate &om the deaih of the testatrix, April 6th, 1877, up to October 2d, 1878, when, discovering that the debts exceeded the value of the farm, the devisees executed a deed renouncing and releas- ing their interest in it. Thereafter this action was brought by the said executor for a construc- tion of the will and to have the real estate sold to pay the debts and legacies, which exceeded in amount both the real and personal estate. It was not shown that the heir-at-law, who was the principal creditor of the estate, had been in- formed of the renunciation of the devisees, or had been asked or had refused to pay and dis- charge the debts and legacies. Held, 1. That if the devisees accepted the devise they became personally liable for the payment of all the debts and legacies charged upon it. 2. That if they refused to accept it, the land descended to the heir-at-law of the testatrix, charged therewith, and that it was the right and duty of the creditors and legatees, and not of the executors, to enforce such charges in an appro- priate action. — Supreme Ct., (3d Dept.,) Nov., 1880. DUl V. Wisner, 23 Hun 123. VI. Contesting a Will fob Incapacity or Undue Influence. 42. What constitutes undue influ- ence, and how proved. Any influence brought to bear upon the mind of a testator which leads him to surrender his free agency and adopt the will of another, is undue to the extent of avoiding the will. If a person be per- suaded by an appeal to his generosity, his affec- tion or his sense of duty, to make a will con- trary to yphat he contemplated, yet, if the act be the legitimate result of such persuasion, acting: upon his untrammeled judgment, it is not an un- lawful persuasion, and the will is not the result of his surrender of his free agency, but rather the result of another's persuasion upon an inde- pendent mind, capable of compliance and re- fusal. If, however, such a persuasive appeal b& made to a person of too feeble a mind to resist, or to one who, from physical or mental weak- ness, is incapable of enduring or repelling the importunity, such persuasion or importunity would be undue, for the reason that it overcame and controlled the will of the testator, and his- act became the expression of the will of another. —N. T. Surr. a., June, 1879. Van Kleeck v, Phipps, 4 Eedf. 99, 128. 43. Neither an unjust will, nor the mere ex- istence of the opportunity and motive for un- due influence, without any affirmative evidence of its exercise, will warrant the presumption of such undue influence in a case where the testa- tor's mind is unimpaired, and where it clearly appears that he had the opportunity to, and did, understand the provisions of his will. — N. Y, Surr. a., June, 1879. McCoy v. McCoy, 4 Bedf. 54, 60. As to what is sufficient proof of undue influ- ence, see Van Kleeck v. Phipps, 4 Bedf. 99 ;, Demmert v. Schell, Id. 409. As to what proof is insufficient, see Neiheisel V. Toerge, 4 Bedf. 328 ; Stein v. Wilzinski, Id. 441 ; Marx v. McGlynn, Id. 455. Ai to the powers, duties and liabilities of Ex- ecutors and Testamentary trustees, see Executors- AND Administrators ; Trusts. As to the admissibility of Parol eoidence to ex- plain the meaning of words used in a will, see Evidence, 39-41. WITNESSES. I. Attendance and Compensation. II. Competency. 1. Parties to the record. 2. Persons interested in the event. 3. Husband and wife. 4. Attorneys. 5. Convicts. III. CREDIBIIilTY. 1. General rules. 2. Impeaching and contradicting. IV. EuiiES OF Examination. 1. Examination-in-chief. 2. Cross-examination. V. Opinions of Experts and Others. I. Attendance and Compensation. 1. Subpoena duces tecum. In this ac- tion, brought to recover moneys alleged to have- been taken from the plaintiffs' firm by the de- fendant, while employed by it as a bookkeeper or clerk, the latter alleged that the moneys 286 WITNESSES, I., II. were taken in pursuance of an arrangement made with one Clyde, who was then the senior partner of the plaintiffs' firm, by which the de- fendant was to have one-fourth of the profits. The defendant having subpoenaed one of the plaintiffs to produce the books of the firm, the subpcena was thereafter set aside, on the applir ■cation of the plaintiffs, based upon an affidavit of one of their attorneys, stating that he believed that the subpoena was served with a view of an- noying the plaintiffs, and that the books called for were from forty-five to fifty in number. Held, that the court erred in granting the application ; that if the subpoena was too broad, the court should have required the plaintiffs to allow the defendant to inspect the books, or have com- pelled them to produce copies of such portions thereof as were material to the issues. — Supreme Ot., (2d Dept.,) Feb., 1881. Clyde v. Bogers, 24 Hun 145. II. Competency. 1. Parties to the record. 2. Testimony as to transactions with -deceased persons: -wlien competent. The provision of the Code of Civ. Pro. (g 829), prohibiting a party from testifying, in certain cases, to a personal transaction with a deceased person, does not extend to transactions with the agents of such person. — Ct. of App., Feb., 1880. Pratt V. Elkins, 80 N. Y. 198. 3. Testimony that, during the lifetime of a deceased person, witness had examined his ac- count book (shown to have been lost), and that he saw in it an entry in the handwriting of de- -ceased, is not testimony to a transaction between witness and the deceased, within the meaning of I 829.— G)m. Pleas, (Gen T.,) Nov., 1879. •Carroll v. Davis, 9 Abb. N. Cas. 60. 4. A party who was examined on a former trial, and who is rendered incompetent by rea- son of the death of his adversary before the second trial, may have his testimony on such former trial, read at any subsequent trial. The statute does not require the testimony of the deceased party to be first offered. — Com. Pleas., {Oen T.,) June, 1881. Lawson v. Jones, 61 How. Pr. 424. 5. When the testimony of a deceased party to a former action, given in said action, is read «pon the trial of a subsequent action by a party thereto, (Code of Civ. Pro., I 830,) the case does mot fall within the several clause of Code of Civ. Pro., § 829. The said party to the subsequent action is precluded from testifying as to the matter contained in said testimony, so far as specified in said § 829. — Supreme Ct., April, 1880. Potts V. Mayer, 46 Superior 182. 6. What is not a personal transaction or com- munication within Code of Civ. Pro., ? 829, see Hill V. Heermans, 22 Hun 455. 7. Instances. After plaintiff had given testimony on the trial as to transactions with C., one of the defendants, but before his examina- tion was completed, C. died. Seld, that the death of C. did not authorize the striking out of the testimony; that Code of Pro., ^^ 399, had no application, as the disqualification under that section depended entirely upon the facts ex- isting when the testimony was given, not upon Any change subsequently occurring. — Ct. of App., Feb., 1880. Comins v. Hetfield, 80 N. Y. 261. 8. After the death of C, plaintiff produced a diagram furnished by one of the defend- ants. He could not recollect from whom he received it, and was unable to say he did not receive it from C. He did testify, however, that he used the diagram in the presence of defend- ants' engineer and of defendant H. Seld, that the diagram could not be excluded as a per- sonal transaction with the deceased, and was properly received in evidence ; that under said section, where a transaction was with a defend- ant living, it was not incompetent because an- other defendant was dead. lb. Q. The plaintiff brought this action to set aside a deed, executed by herself and her de- ceased husband, by which certain real estate owned by the husband was conveyed to the de- fendant upon trust to pay the debts of the hus- band. She alleged that she was induced to exe- cute the deed upon the representations then made to her by her husband, that it was in con- formity with a proposed deed of trust in which she had agreed to unite, and that relying upon the truth of such representations, and believing the instrument to be what her husband said it was, she executed it without reading it; that the rep- resentations were false and that her husband was of unsound mind at the time he made them. SM, 1. That she was entitled to maintain the action to recover the value of her dower right in the property. 2. That she was a competent witness to testify to the representations made to her by her hus- band, as against the defendant, and was not dis- qualified by Code of Civ. Pro., ^ 829. — Supreme Ct., {1st Dqal.,) March, 1881. Witthaus v. Schack, 24 Hun 328. 10. — -when incompetent. Where the holder of a promissory note parts with the pos- session thereof to the maker, it is personal trans- action between them, within the meaning of Code of Pro. ? 399.— Ci!. of App., June, 1880. Van Gelder v. Van Gelder, 81 N. Y. 625. 11. Plaintiff held the check sued on as assignee of H, who died prior to the trial. Hdd, that defendant was incompetent, under J 399 of. the Code of Procedure, to testify to the per- sonal transactions between him and H. — Ct. of App., April, 1880. Eaubitschek v. Blank, 80 N. Y. 478. 12. To secure the joint bond of a husband and wife they executed their mortgage to C. upon lands owned by the wife alone. She thereafter conveyed the mortgaged premises to her son, who, in an action to foreclose the mortgage, brought by an assignee of the mortgagee, in- terposed the defence of usury ^ the mortgagors did not defend. The mortgagee died previous to the trial. This took place in 1878, when the original § 830 of the Code of Civil Procedure was in force, which provided in substance that where a party cannot be examined as a witness concerning a transaction with a deceased person under ^ 829, the husband or wife of said party cannot be examined concerning the same transac- tion. Upon the trial the son called his father, who negotiated the loan with the mortgagee, as a witness solely in his own behalf, to prove the usury. Hdd, that as the mother, to whose title the son succeeded, would have been precluded from testifying in his behalf as to the transaction with the deceased, the testimony of the father was properly excluded. — Ct. of App., June, 1880, Whitehead v. Smith, 81 N. Y. 151. WITNESSES, II., III. 287 As to whether such testimony falls within the prohibition of | 829, qtusi-e. I,b. 13. When a party cannot testify as to a per- sonal transaction with a deceased person, (Code of Civ. Pro., ? 829,) see Wilkins v. Baker, 24 Hun 32 ; Church v. Howard, 79 N. Y. 415. 14.— wUen competent as against per- sonal representatives of the deceased person. Section 829 of the Code of Civil Pro- cedure relative to competency of witnesses in actions against representatives of deceased per- sons, does not apply to an action against an exec- utor individually. — Simreme Cl., {4th Depi.,) Oct., 1880. Hall v. Biohardson, 22 Hun 444. 15. — -when incompetent. Under ? 829 a party cannot be examined as a witness in his own behalf against the administrator of a deceased person, as to any personal transaction or communication had by him with the de- ceased, unless the administrator has been exam- ined in his own behalf concerning the same transaction or communication. — Supreme Cl., (Uh Dept.,) Jan., 1881. Ward v. Plato, 23 Hun 402. 16. Upon the trial of an action brought by the administrator of a deceased payee of a pro- missory note against the makers thereof, one of whom claimed to be liable as a surety only and the other of whom interposed no defence, the latter was allowed, against the plaintiff's objec- tion and exception, to testify in behalf of his co-defendant as to personal tranfactions and communications had by the witness with the deceased. Sdd, that the testimony was inad- missible under §§ 828 and 829. — Supreme Cl-., {ith Dept.,) Jan., 1881. Hill v. Hotchkin, 23 Hun 414. 17. On January 13th, 1878, one Eliza House- worth, being sick of a disease from which she died on February 7th, delivered to the defend- ant B. certain securities, and directed him to apply the income, and, if necessary, the prin- cipal thereof, to the support of her husband during his life, and upon his death to divide what was left between the plaintiffs. On Jan- uary 27th the husband died, and between that time and February 7th she altered the arrange- ment as to the said fund, and directed B. to ap- ply a portion thereof to other purposes, which he did. In this action, brought by the plain- tiffs to recover the whole of the fund, the de- fendant B. claimed to be allowed for the amount expended by him in pursuance of the last di- rection of the deceased, and the other defend- ants, the administrators of Eliza Houseworth, claimed to be entitled to the whole fund received by B. Upon the trial B. was called by the plaintiffs, and allowed, against the objection and exception of the other defendants, to testify ■as to the said transactions with the deceased, and as to what she then said to him. Held, that the evidence was inadmissible under Code of Civ. Pro., § 829.— Supreme Ct., (3d Dept.,) Jam., 1881. Wilkins v. Baker, 24 Hun 32. 2. Persons interested in the event. 18. Persons jointly indicted. The trial "was nad after the passage of the act of 1876, (Laws of 1876, ch. 182,) declaring that persons jointly indicted shall be competent witnesses for each other. One L., who was jointly in- dicted with the prisoner, was called as a witness on his behalf. His testimony was objected to ?S?, refused. Held, error.— a of App., March, 1881. People v. Bowling, 84 N. Y. 478. 3. Husband kind wife. 19. A wife is a competent witness in pro- ceedings to compel her husband to support her. —Supreme Gt., [ist Dept.,) March, 1881. Peo- ple, ex rel. Commissioners, v. Barthol, 24 Hun Zl A. 20. Under Laws of 1876, ch. 782, ? 2, a wife is not a competent witness against her husband, and cannot be called against him by the people without his consent.— Oyer and T., (3d Dept.,) Oct., 1880. People v. Briggs, 60 How. Pr. 17. 4. Attorneys. 21. When incompetent. In an action to recover damages for an alleged conspiracy to defraud, one K. was called as a witness and al- lowed to testify, under objection and exception, to communications made to him by defendant R. Prior to the reception of the evidence it ap- peared that K. was an attorney, was at the time engaged in the practice of law, and was also carrying on a wholesale liquor store ; he had done a good deal of law business for E., and gave him legal advice before and after said communications, and then gave his opin- ion as a lawyer upon the case presented: The communications were made to K. in his store ; no fee was paid, there was no general retainer, and no suit was then pending. K. testified that he did not consider that B. was advising with him as counsel at the time. Held, that the evidence is to the communications was improperly received. — Ct. of App., March, 1880. Bacon v. Frisbie, 80 N. Y. 394. 22. The General Term reversed the judg- ment as to B., but affirmed it as to defendant F. Held, error; that said testimony was in- competent as against F., and that the judgment should have been reversed as to both defend- ants, lb. 5. Commcls. 23. Construction of Code gf Oiv. Pro. , § 832. The meaning of the term " convicted," in g 832 of the Code of Civil Procedure, de- notes the final judgment of the court in passing sentence. It was the intention of the legislature that a person found guilty of a crime or misde- meanor by the verdict of a jury should be a competent 'witness as well after sentence had been pronounced as before ; and it is no error to allow such a witness to explain the circum- stances of his trial and conviction. — Com. Pleas, (Oen. T.,) March, 1881. Sacia v. Decker, 1 Civ. Pro. 47. III. Cbedibilitt. 1. General rules. 24. Credibility of party called by opposite party. Where the plaintiff vol- untarily calls the defendant as a witness, as to matters not merely formal, upon a motion for a dismissal of the complaint, the judge is bound to consider him a credible witness as to the facts testified to by him, whether upon the direct or upon the cross-examination. — Superior Ct., Dec, 1880. Branch v. Levy, 46 Superior 428. 288 WITNESSES, III, IV. 25. In such case defendant must be held credible as against plaintiff, even as to matters testified to by him when subsequently called by the defence. lb. 26. Positive and negative testi- mony. The testimony of a witness who testi- fies positively that a certain fact occurred is, generally speaking, entitled to more weight than the evidence of another witness who swears that the fact did not occur; for it is far more probable that the latter has forgotten the occur- rence than that it should be distinctly impressed on the mind of the former if it never took place. — Kings Go. Surr. Ct., July, 1880. Neiheisel o. Toerge, 4 Eedf. 328, 330. 2. Impeaching and contradicting. 27. Ho-w a witness may be im- peached, generally. To impeach a wit- ness by proof of character, a party is not con- fined to reputation at the time of trial. — Ot. of App., March, 1881. Dollner v. Lintz, 84 N. Y. 669. 28. Proof of bias, hostility or preju- dice. Where the plaintiff has testified in her own behalf, the defendant should be allowed to prove statements made by the plaintiff that she would get even with both the defendant and her husband. — Supreme Gl., (2d Dept.,) Feb., 1881. Starr v. Cragin, 24 Hun 177. 29. ShoAving a conviction of crime. Upon the trial of an indictment for assault 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 witness was indicted as one of the participants in the affray ; and that the ques- tion was competent to show the position he occu- pied in respect to the controversy out of which the affray arose and his interest in the litigation, and as showing prejudice or bias. — Gt.^ App., Jan., 1880. Ryan v. People, 79 N. Y. 593. 30. It seems that the mere fact that a witness has been indicted cannot legitimately tend to discredit him or impeach his moral character, and that evidence thereof is therefore incompe- tent; (Folger and Earl, J. J., dissenting, and holding that the allowance of questions on cross- examination of a witness, as to his having been indicted, is in the discretion of the court.) lb. 31. Impeacbing one's own witness. While a party who has called a witness cannot impeach his general reputation for truth, he may contradict him as to any particular fact testified to, and this, although the evidence may collater- ally have the effect of showing that the witness is generally unworthy of belief. — Ct. of App., March, 1881. Hunter v. Wetsell, 84 N. Y. 549. IV. EuLBs OF Examination. 1. Examindtioii-inrchief. 32. What questions'are proper. The plaintiff sought to avoid a mortgage given by the person under whom she claimed, to the de- fendants, on the ground of usury. The usury consisted in the over-valuation of certain rail- road bonds transferred by the defendants to the mortgagor, and which formed part of the consid- eration for which the mortgage was given. Up- » on the trial, one of the defendants was asked whether, at the time the mortgage was taken,, he believed the bonds were worth the price at which they were taken by the mortgagor, and whether he had any intention of violating the usury law. Upon the plaintiff's objecting, the question was excluded. Held, that this was error ; that un- der the circumstances of this case, the defendant was entitled to testify as to his intention in ma- king the arrangement for the transfer of the bonds. — Supreme Gl., (Sd Dept.,) Sept., 1880. More V. Deyoe, 22 Hun 208. 33. In an action for the price of goods sold, defendant's son J., who purchased the goods on defendant's account, after testifying as a witness for plaintiffthat the principal articles of clothing and groceries for himself and family were ob- tained of plaintiff, that he often went himself and sent others to plaintiff's store for goods, was asked and permitted to state, under objection and exception, the quantity and amount of articles thus purchased of plaintiff. Held, no error. — Ct. of App., Nov., 1879. Green v: Disbrow, 79 N. Y.i. 34. In an action on a fire policy, one of the plaintiffs as a witness for them was asked : " So far as you could, individually, did you get those proofs of loss forwarded as soon as it was possi- ble for you to do so?" This was allowed un- der objection and exception. He answered : " I did all in my power to have them forwarded at the earliest possible moment." Held, compe- tent ; that the question called for a fact within, the knowledge of the witness. — Gl. of App., Feb. 1880. Brink v. Hanover Fire Insurance Co., 80 N. Y. 108, 115. 35. In an action on a fire policy, on the cross- examination of defendant's local agent, who was a witness for it on the trial, it was shown that L., its general agent, was at the location of the insured property after the fire, and investigated the circumstances of the loss. Plaintiff there- after, as a witness in his own behalf, was per- mitted to testify, under objection and exception, that after the fire, a person he had never before seen, and about whose identity he knew nothing, save what he then learned from him, called up- on him, representing himself as L., said general agent, inquired about the foreclosure proceed- ings, and was advised thereof; this was before the examination of M. Held, that the testi- mony was properly received ; that it could not be assumed that the person was an impostor, at least it was for the jury to say whether he was L. or not.— Ct. of App., June, 1880. Titus v. Glen's Falls Insurance Co., 81 N. Y. 410, 420; S. C, 8 Abb.N. Cas.315. 36. In an action to recover a balance of the purchase price of plaintiff's interest in certain grist-mill property, the question at issue was as to whether a mortgage, executed by a third per- son to plaintiff at the time of the conveyance, was received by him as payment or as security merely. The evidence on the trial as to this was conflicting. Plaintiff testified that when the proposition to give the mortgage was made he objected; that defendant represented it to be good and ample security — that " the farm was worth it;" that he finally took it as security; that a prior mortgage was thereafter foreclosed, and the farm brought only enough to pay it. After evidence had been given on the part of WITNESSES, IV. 289 defendant tending to show that the mortgage was given in payment, he was allowed to give evidence, under objection and exception, to the effect that at the time the mortgage in question was given, the" mortgaged premises were worth more than the ^mount of the two mortgages. Hdd, no error ; that the testimony was compe- tent in answer to, and explanation of, plaintiff's evidence ; and that it was no answer to this that such evidence came out necessarily as a part of his case. — Gt.- of App., June, 1880. Wallis u. Eandall, 81 N. Y. 164, 167. 37. A witness for the defendant was permit- ted to give testimony, under objection and ex- ception, to the effect that the contract in ques- tion was abandoned and a new verbal contract was made, and that under this the balance of the purchase price was to be paid by the mortgage. HM, no error. Ih. 168. 38. What questions are improper. In an action for malicious prosecution, wherein plaintiff alleged that defendants caused him to be arrested under a charge of stealing a deed ■from defendant K., plaintiff, as a witness in his own behalf, after stating the manner in which he obtained the deeds from K., and the ^ct that she afterward brought a suit to set aside a sub- sequent conveyance of the premises made by him, was asked if he made an offer in court in that cfise in the presence of K., to convey the premises upon being paid the expense he had been put to. This was admitted under objection and exception, and plaintiff answered in the af- firmative. Held, that the testimony was im- properly received. — Ct. of App., June, 1880. Thaule v. Biekeler, 81 N. Y. 428, 434. 39. E., as a witness in her own behalf, was asked if plaintiff, about the time the charge was made by her, had deeded the property to an- other person. This was objected to and ex- cluded. Hdd, error; that the evidence bore directly upon the motives of plaintiff in getting possession of the deeds and the grounds which defendant had for the suspicions stated in her affidavit, and upon the existence of probable cause, lb. 435. 40. In aif aetion to recover the amount of a check drawn by C, plaintiff's assignor, to the order of defendant, and alleged to have been de- livered to the latter to be used in purchasing a draft for the drawee, the defendant averred in his answer that the check was intended as a payment in parf of a claim which C. " morally owed" the defendant, growing out of a fraud perpetrated by C. in inducing defendant to take a fraudulent note ; the alleged facts in reference thereto being set forth in the answer, which also averred that defendant settled the claim with C, on his promise that he would at some time pay the loss. On the trial, after L., as a witness for plaintiff, had testified that the check was given to purchase a draft, defendant's counsel sought to show by him, on cross-examination, the facts of the fraud set forth in the answer. This was objected to and the evidence excluded. After defendant, as a witness in -his own behalf, had testified that the check was given as a pay- ment upon the claim arising out of the fradulent note, his counsel offered to prove by him the transaction in regard to said note substantially as alleged in the answer. This was objected to and excluded. Before the court ruled upon the offer it was conceded that a release under seal, which was produced, was executed by defendant with full knowledge of the facts. The release recited that, in consideration of the agreement of the other parties to indemnify defendant from the debts of a firm named during the time he was a member, he released C. from all demands " by way of checks, notes or otherwise." Held, that the evidence offered was properly rejected ; that evidence of the details of the fraud could not legitimately tend to confirm defendant's version. — Ct. of App., Nov., 1880. Canaday v. Krum, 83 N. Y. 67. 41. In an action to recover damages for al- leged negligence, causing the death of plaintiff's intestate, plaintiff claimed that the deceased fell from the footway through the open draw on de- fendant's bridge, when crossing it in the night. Defendant had placed gates over the footway on each end of the draw, which were designed to be lowered when the draw was opened. Plain- tiff claimed that the gate was not lowered at the time of the .accident. M., a boy in defendant's employ, was called as a witness for it, and after testifying, on cross-examination, that he had been sent at times to pull down the gate, was asked if he told one B. on one occasion to pull it down. This was objected to and excluded. Held, no error. — Ot. of App., Feb., 1881. Hart V. Hudson River Bridge C!o., 84 N. Y. 56. 42. M. testified that he did not see a woman fall from the bridge. On cross-examination he testified that he did not say, in the presence of people at the draw, when the subject was dis- cussed just after the splash in the water which he heard, that he saw the woman fall from the end of the bridge. One N. was called as a wit- ness for plaintiff, who testified that he saw a boy among those gathered on the bridge after the draw was closed, but could not identify M. as the one. Plaintiff's counsel then offered to prove that the boy said he saw a woman fall off the bridge. This was excluded. Held, no error ; that the question as to the identity of M. with the boy whom N. saw was for the court to de- termine ; also, that the attention of M. was not called with sufficient particularity to the time, place, persons, &c., to lay a foundation for the impeaching evidence. lb. 43. One W., a witness for the defence, who lived in the house of one T., about a mile and a half from the prisoner's house, testified that, at about four o'clock in the morning of the day of the murder, he was awakened by the barking of a dog, and on looking out of the window he saw the two Kelloggs and T. standing back of the house ; that Alden Kellogg had a double- barreled gun and T. a bag with something in it ; that one of the men washed his hands at the pump ; that they changed their coats ; that the Kelloggs went away with the gun and bag, and T. came into the house ; that he heard a part but not all of the conversation. The counsel for the prisoner then offered to prove that on that occasion the witness heard T. say to Kel- logg, " You were damned fools to do it," and that one of the Kelloggs replied, " If we had not done it we should all have been hung." No other evidence was given tending to show that T. was with the Kelloggs on that night, or to connect the Kelloggs or either of them with the murder, or to show that the parties, or the gun and bag, came from the prisoner's house. Held, that the court properly refused to allow the question to be put. — Supreme Cl., (4tt Dept.,) Jan., 1881. People v. Greenfield, 23 Hun 454. 290 WITNESSES, IV, V. 2. Oross-examination. 44. Extent of the right to cross- examine. Upon the cross-examination of tiie plaintiflf's attorney upon the trial lie was asked how much of the judgment was to be his in case of snccess. An objection to this ques- tion was sustained by the court, to which ruling the defendant excepted. Hdd, that the excep- tion was not well taken as the question related to a collateral issue, and that the extent of the cross-examination was in the discretion of the court. — Supreme Ot., {Sd Dept.,) Jan., 1881. Saulsbury v. Village of Ithaca, 24 Hun 12. See, also, People, ex rel. Phelps, v. Oyer and Terminer, 83 N. Y. 436. 45. What questions are proper. Upon the trial of an indictment for obtaining goods by false pretences, S., a witness for the prosecu- tion, was asked on cross-examination as to a conversation with one M. On re-direct exami- tion he testified to statements made to him by M. in that conversation, to the effect that the prisoner and his partner had done a great wrong. M. was thereafter called as a witness for the prisoner, and gave material testimony of statements made by the prosecutor, contradict- ing his testimony, and tending to show the pris- oner's innocence; he also positively contra- dicted the testimony of S. On his cross-exam- ination he was asked if he had not said to any- body that the prisoner and his partner had been guilty of a great wrong, also if he had not said that they had acted as thieves ; these questions were objected to, objection overruled and excep- tion taken ; the witness answered in substance that he did not remember. Held, that the al- lowance of the questions was not error. — Ct. of App., March, 1880. Mayer v. People, 80 N. Y. 3B4. 46. Leading' questions. A party seek- ing to elicit new matter constituting an element of his case, upon cross-examination of a wit- ness produced by the opposite side, has not the right to put leading questions ; as to such new matter the witness becomes his own. — Ot. of App., Jan., 1881. People, ex rel. Phelps, v. Oyer and Terminer, 83 N. Y. 436. 47- Sufiaciency and effect of -witness' answer. One of the witnesses for the pros- ecution on a trial for assault and battery, when asked what he saw of the occurrence, answered among other things, "I should judge he [the complainant] struck a stone ; " this was on mo- lion struck out. Held; no error, as it was not responsive to the question, and was a conjec- ture, not knowledge. Also, that evidence that the prisoner made an effort to keep out of the way of the sheriff was competent. — Ot. of App., Jan,, 1880. Ryan v. People, 79 N. Y. 593. 48. Objections — motion to strike out, &c. Where, after the evidence of a wit- ness as to a matter is excluded, the same wit- ness is allowed to testify fully in reference there- to, this obviates the error, if any, in the prior ruling. — Ot. of App., June, 1880. Matter of Crosby v. Day, 81 N. Y. 242. 49. A general -objection to a question calling for an opinion as to the existence of a fact will not sustain an exception to the reception of the testimony where the fact is material ; the ob- jection should be put upon the ground that the fact could not be thus proved, lb. 50. A witness, in answer to a question as to what he said to defendant in reference to a certain transaction, answered that he told de- fendant "exactly what was done." Defendant's counsel moved to strike out the answer, on the ground that the witness should-state what was said. The motion was denied and exception taken. The witness then proceeded to give a particular narration of what occurred between him and defendant. Seld, that the exception was untenable, as the answer could not have prejudiced. lb. 51. Re-examining— refreshing the memory. When a refusal to allow a witness to state whether he desired to correct any mis- take he had made in his testimony will be sus- tained, see Bissell v. Busseil, 23 Hun 659. 52. When a memorandum made by a witness is inadmissible, see Fisher v. Verplanck, 23 Hun 286. V. Opinions op Experts and othebs. ' 53. Opinions of ordinary -witnesses, "When inadmissible. It seems that it is in- competent for a witness to testify as to what an- other person did or did not understand from a transaction. — &. of App., June, 1880. Wallis V. Eandall, 81 N. Y. 164. 54. A witness, not a physician, who saw the mother of the insured in her last sickness, was asked to state his conclusion in reference to the character of her disease. This was objected to and excluded. Seld, no error. — Ot. of^ App., March, 1880. Grattan v. Metropolitan Life In- surance Co., 80 N. Y. 281. 55. Limits and exceptions to the rule. Plaintiff was allowed to testify, under objection and exception, that he believed in the truth of a certificate required of and given by defendant to the effect that the note in suit was business paper, and that he had no intention to use it to evade the statute of usury. Weld, no error. — Ct. of App., June, 1880. Bayliss v. Cookcroft, 81 N. Y. 363. 56. In what cases a witness' belief is admissi- ble as to a past occurrence, and when it is not, see Tolman v. King, 24 Hun 480. . 57. Admissibility of opinion on question of value. After a witness has tes- tified to facts showing that he has some know- ledge of the cost or value of buildings, acquired as a dealer, or builder, his testimony as to the value of a building is competent. — Ot. of App., Dec., 1880. Woodruffs. Imperial Fire Ins. Co., 83 N. Y. 133. 58. — as to -whether certain sub- stance is blood. The plaintiff in error was indicted, tried and convicted of murder in the first degree for killing his wife. The wife was found dead in her bed-room, with the mark of a severe blow from a club upon her head, and with her throat cut ; the walls of the room and articles therein were spattered with blood, and a pool of it lay upon the floor under her bed. Upon the trial a witness called for the prosecu- tion having testified that on the morning of the day of the murder he saw a spatter or spot of a darkish red color on a flat stone in the path leading from the prisoner's house to the road, and having stated that he could swear, as a matter of fact, what the substance on the stone was, was asked to state what it was. The prisop- er's counsel having objected to this question, on tjie ground that it was immaterial and irrelevant. WITNESSES, V. 291 and that the wituees was not qualified to express an opinion whether it was hlood or not, as he was not an expert, the court instructed the wit- ness that his opinion was not asked for, and if he answered he would only be allowed to an- swer, as a fact, what the spot was. The witness then answered that the spot was blood. 3dd, that the witness was properly allowed to answer the question, as the evidence referred to a matter of common observation, as to which an ordinary witness could speak. — Supreme Gt., (4th Bept.,) Jan., 1881. People D.Greenfield, 23 Hun 454, 462. 59. Expert testimony, ■when com- petent. In an action for injuries sustained by falling through the open draw of a bridge at night, a oivU engineer having experience in the erection of bridges, as a witness for defendant, was allowed to testify, under objection and ex- ception, that it was not customary to have gates of any kind on draw-bridges. Hdd, no error ; that it was competent for the defence to show that the bridge was constructed with extraordi- nary care.— Of. of App., Feb., 1881. Hart v. Hudson Kiver Bridge Co., 84 N. Y. 56. 60. The same witness was asked, on cross- examination, whether it was safe and proper to have draws with drop-gates across the footpath of a bridge when the draw was open ; this was objected to and excluded. Held, no error ; that it was a matter of opinion and not within the range of expert evidence. lb. 61. Testimony of physicians, in an action against a physician for negligence, that they never knew of a case as claimed by plaintifi', — Bdd, competent. — Cl!. of App., Feb., 1880. Doyle V. New York Eye and Ear Infirmary, 80 N. Y. 631, 633. 62. Qualifloations of experts, gene- rally. One who has personal knowledge of the facts of a case may give his opinion as an expert, but he cannot give such opinion when he possesses no knowledge of the facts except such as he derives fi:om having heard the testimony of other witnesses. — Supreme Gt., (3d Dept.,) Sept., 1880. Ayres v. Water Comm'rs of Bing- hamton, 22 Hun 297. 63 —of experts in hand-writing. Comparison of handwriting. An expert in handwriting, when speaking as a witness only from a comparison of handwriting, should have before him in court the two writings compared. —Gt. of App., Sept., 1880. Hynes v. McDer- mott, 82 N. Y. 41 ; affirming 7 Daly 513. 64. A comparison of a signature in dispute with photographic copies of other writings, for the purpose of getting an opinion from an ex- pert as to the character of the signature as real or feigned, where the originals from which the copies are made are not bronght before the jury and cannot be shown to other witnesses, should not be permitted, at least where there is no proof as to the manner and exactness of the photo- grapic method used. Jb, 50. 65. L., a detective employed by defendants to procure evidence against plaintiffl, after the commencement of the action, and while engaged in taking evidence, on commission, of a witness in behalf of defendants, saw certain signatures . which plaintiflf M. (the alleged widow) admitted to be her genuine signatures. L. was called as a witness to prove the signature of M. toa lease, executed in another name while she claimed to •be the wife of deceased. The evidence was re- jected. Held, that L. showed sufficient know- ledge to authorize him to give an opinion ; but that the case could not be distinguished from that of genuine writings furnished to a witness to enable him to become a witness ; and so that the rejection of the evidence was not error. lb. 66. Upon an issue as to the gennineness of a signature to a deed, witnesses called to prove that the signature was not genuine ana who testified they had seen the alleged grantor write and knew his handwriting, on cross-examination stated that their opinion was partly based on the examination of other instruments which it had previously been proved were genuine, and by a comparison of the signatures thereto with the one in question ; but they also testified that they were able to express an opinion independent of the knowledge derived from such comparison. Held, that a refusal of the referee to reject the opinions of said witnesses, so far as based upon such comparison, was not error. — Ct. of App., Sept., 1880. Bemington Paper Co. v. CrDough- erty, 81 N. Y. 474. 67.- Rules for the examination of ex- perts — hypothetical questions. It is not the province of a witness, testifying as an expert, to draw inferences from the evidence of other witnesses, unless the facts testified to are clear and uncontroverted, or to take into con- sideration such facts as he can recollect that have been testified to and thus form an opinion, but he should have full information of the as- certained or supposed state of facts upon which his opinion is based. — CIS. of App., Jan., 1881. Guiterman v. Liverpool, &c, Steamship Co., 83 N. Y. 358. 68. Where the facts are controverted or are not entirely clear, a hypothetical question may be put, based upon the facts claimed to have been proved. lb. 69. In an action against a common carrier by sea to recover damages for injuries to the freight by a collision with a collier, after a pro- test or statement as to the circumstances attend- ing the injury and the management of the ves- sel had been given in evidence, and after wit- nesses had testified in reference thereto, there being a discrepancy between the protest and some of the testimony and the evidence cover- ing a great variety of facts, a witness called as an expert by plaintifi", after having testified thait he had heard the testimony read to the jury the previous day, and the protest, and had heard the testimony of one or two of the witnesses, and the circumstances as detailed by them, was asked " under the circumstances detailed by these witnesses and in the protest," and under certain circumstances which were specified, " what in your opinion should have been done by the persons in charge of the steamship?" Held, incompetent, lb. 70. In putting hypothetical questions to ex- pert witnesses counsel may assume the_ facts in accordance with his theory of them ; it is not essential that he state the facts as they exist. — Ct. of App., Jan., 1881. Cowley v. People, 83 N. Y. 464 ; affirming 21 Hun 415. 71. On the hearing of an issue as to whether an excavation in a city street was properly re- filled, an expert witness who had heard the evi- dence as to such refilling, was asked and allowed to answer the following question: "How would you fill such an excavation ? " Held, that while it was proper for the witness to state whal would have been a proper manner of refilling the ex- 292 WITNESSES, V. cavation, it was an error to allow him to testify how he would have refilled it. — Supreme Gt., (3d Deipt.,) Sept., 1880. Ayres v. Water Comm'rs of Binghamton, 22 Han 297. 72. Where a witness, offered as an expert, has not personal knowledge as to the facts, he can only testify in answer to hypothetical ques- tions which assume the existence of the facts claimed by the party conducting the examina- tion to have been proved, lb. 73. A physician, called by the plaintiff, in an action on a Ufe policy, having testified that he had been present in court during all the testi- mony, and had heard the evidence as to the symptoms exhibited by the deceased, was asked . the following question : " Assuming the state- ment in reference to the condition of the de- ceased, and his history up to the time of his death, what is the opinion of the witness in re- spect to the condition of his mind at the time of his death ? " Held, that it was error to allow the witness to answer the question. A hypo- thetical question should have been put. — Sur preme Ct., {Zd Dept,) (Sep J., 1880. Hagadom v, Connecticut Mut. Life Ins. Co., 22 Hun 249. ■ As to obtaining Inspection of books and papersy before trial, see Discovert and Inspection. ■ As to taking testimony of witnesses by J)epo- aiiion, see Depositions. As to the examination of witnesses on the Probate of wills, see Wills, 6-12. For Muiea of evidence, generally, irrespective of the competency of witnesses or the manner of examining them, see Evidence. WRITS. For decisions relative to writs In present 'use, see Certiorari; Execution; Habeas Cor- pus; Mandamus; Prohibition. As to Writs of errors see Error. WRONGS. Assault; Conspiracy; False Imprison- ment ; Fraud ; Libel ; Malicious Prosecu- tion; Neoligence; Nuisance; Slander;. Trespass; Trover. CASES CRITICISED. CASES DIGESTED. GENERAL INDEX. CASES CRITICISED. A TABLE OF CASES Affirmed, Applied, Approved, GommerUed on. Compared, Changed by Statute, Denied, Disapproved, Distinguished, Doubted, Eayplained, Followed, Limited, Modified, Not Followed, Opposed, Overruled, Questioned, BeconcUed, Reversed, or Otherwise Criticised by Subsequent Decisions. In addition to the criticisms contained in the reports digested in this volume, below will be found several thousands of references which did not appear in the corresponding Table in the first volume of this Digest, for the reason that they did not, for the most part, fall within its scope and intent, which was limited to references to cases which were either affirmed, reversed, overruled, or criticised adversely. Shortly after its publication, Silas W. Ceandall, Esq., of Binghamton, began to make additions to the Table given in volume I., using, to indicate the character of the criticisms so added, such terms (in addition to those in the Table) as are enumerated above ; and, after devot- ing to this task, for nearly three years, all the time his professional duties would permit, he has contributed the result of his labor to this work, greatly increasing its usefulness and value, and placing the compiler under an obligation which he desires to publicly acknowledge. A. Abbott V. American Hard Rubber Co., 20 How. Pr. 199. ArpiBMED, 33 Barb. 578 ; 21 How. Pr. 193. Abbott V. Allen, 2 Johns. Ch. 519. Ap- proved, 3 Edw. 124. Abbott V. Allen, 14 Johns. 248. Fol- lowed, 5 Bosw. 672, 575. Abbott V. Draper, 4 Den. 51. Limited, 26 Mich. 421. Abbott V. Smith, 8 How. Pr. 463. Ovbb- RULED, 2 Daly 50. See 7 How. Pr. 357. Abeel y. Radcliff, 15 Johns. 505, 507. DiSTiKstriSHED, 4 Cow. 351. Doubted, 2 Duer448. Abels V. "Westervelt, 24 How. Pr. 284. Affirmed, 15 Abb. Pr. 230. Abels V. Westervelt, 15 Abb. Pr. 230. ■Criticised, 8 Abb. Pr., n. s., 379. Distin- guished, 43 Barb. 191. Abercrombie, Matter of, 4 Hun 141. Affirmed, 63 N. Y. 628. Aberdeen v. Blackmar, 6 Hill 324. Approved, 21 Conn. 125. See 1 N. Y. 555. Abraham v. Plestoro, 3 Wend. 538. Followed, 34 Barb. 67. Reviewed, 5 N. Y. 320, 341, 352. -See 3 Barb. Ch. 394 ; 4 Bosw. 463. Acker v. Acker, 16 Hun 173. Ee- versed, 81 N. Y. 143. Acker v. Acker, 81 N. Y. 143. Fol- lowed, 83 N. Y. 110. Acker v. Campbell, 23 Wend. 372. Limited, 3 Hill 348. ■ Acker v. "White, 25 Wend. 614. Dis- tinguished, 1 N; Y. 168. Explained, 6 Hill 558. Aokerman v. Emott, 3 Leg. Obs. 337. Affirmed, 4 Barb. 626. Considered, 50 Barb. 483. 295 296 CASES CRITICISED. Ackerman v. Emott, 4 Barb. 626. Eb- YiEWED, 4 Eedf. 438. Ackerman v. Finch, 15 Wend. 652. Examined, 1 Doug. (Mich.) 58. Explained, 23 Wend. 336. Ackerman v. Hunsicker, 21 Hun 53. Eeyersed, 24 Hun V. Ackerman v. Hunsicker, 10 Week. Dig. 69. Eetebsed, 12 Week. Dig. 265. Ackley v. rifygert, 33 Barb. 176. Ap- peal DISMISSED, 30 How. Pr. 692 n. Ackley V. Kellogg, 8 Cow. 223. Dis- tinguished, 20 N. Y. 263. Ackley v. Tarbox, 29 Barb. 512. Oveb- BULED, 5 Daly 17. Ackley v. Tarbox, 31 N. Y. 564. Fol- XOWED, 5 Daly 17. Acome V. American Mineral Co., 11 How. Pr. 24. OvEREULED, 14 How. Pr. 184, 186. Adair v. Brimmer, 74 N. Y. 539. Dis- tinguished, 24 Hun 113. Eeviewed, 4 Eedf. 437. Adair v. Lott, 3 Hill 182. Distin- ouisHED, 22 Hun 270. Adams v. Alstyne, 25 N. Y. 236. Fol- lowed, 50 N. H. 139. Adams v. Curtis, 4 Lans. 164. Fol- lowed, 4 Hun 173, 176 ; 6 Thomp. & C. 467. Adams v. Davidson, 10 Hun 309. Dis- tinguished, 84 N. Y. 393, 394. Adam.B v. Farmer, 1 E. D. Smith 588. CoNTBA, 38 Superior 71. Adams V. Fort Plain Bank, 23 How. Pr. 45. Eevebsed m part, 36 N. Y. 255. Adams v. Fort Plain Bank, 36 N- Y. 255. Distinguished, 1 Hun 655, 667 ; 1 Lans. 55. Followed, 23 Hun 101. Adams v. Fox, 27 How. Pr. 409; 40 Barb. 442. Appeal dismissed, 27 N. Y. 640. Adams v. Hopkins, 5 Johns. 252. Dis- tinguished, 83 N. Y. 48. Followed, 9 Johns. 114 ; 23 Hun 39. Adams v. Houghton, 3 Abb. Pr., n. s., 46. Distinguished, 36 How. Pr. 479. Adams v. Ives, 3 Thomp. & C. 471. Ar- FiBMED, 63 N. Y. 650. Adams v. Leland, 5 Bosw. 411. Af- PIEMED, 27 How. Pr. 599. Adams v. Perkins, 25 How. Pr. 368. Appboved, 30 How. Pr. 104. Adams v. Rivers, 11 Barb. 390. Dis- tinguished, 52 Md. 227. Adams v. Rockwell, 16 Wend. 285. Commented on, 19 Wend. 325. Followed, 37 buperior 171. Not oveebuled, 47 Barb. 293. Adams v. Sage, 28 N. Y. 103. Distin- guished, 47 N. Y. 564. Adams V. Saratoga, &o., R. R. Co., 11 Barb. 414. Oveebuled, 20 Barb. 34. Adams v. SherriU, 14 How. Pr. 297. Appboved, 9 Abb. N. Cas. 302; 14 Abb. Pr. 219. Adderly v. Storm, 6 HiU 624. Ap- pboved, 11 N. Y. 152. Adee v. Campbell, 14 Hun 551. Af- firmed, 79 N. Y. 52. Admission of Grraduates, Sso., Mat- ter of, 19 How. Pr. 136. Eeveesed, 20 How. Pr. 1. Adolph V. Central Park, &;o., R. R. Co., 33 Superior 186. See 43 Superior 199. Adriance v. Lagrave, 15 Abb. Pr., n. s., 272; 47 How Pr. 71. Eevebsed, 47 How. Pr. 385 ; 1 Hun 689 ; 4 Thomp. & C. 215. See 59 N. Y. 110 ; 4 Thoifip. & C. III. Adriance v. Lagrave, 4 Thomp. & C. 215. Eevebsed, 59 N. Y. 110. Adsit V. Adsit, 2 Johns. Ch. 448. Ap- proved, 9 N. Y. 517 ; 2 Dutch. (N. J.) 415. Adsit V. Brady, 4 Hill 630. Approved, 34 N. Y. 390, 397 ; 44 Id. 116, 125. Disap- proved, 5 Neb. 389. Distinguished, 1 Hun 570, 572. Followed, 5 Lans. 344. Adsit V. "Wilson, 7 How. Pr. 64, 68. Followed, 8 How Pr. 377. .ffitna Fire Ins. Co. v. Tyler, 16 Wend. 385. Limited, 55 N. Y. 356. .ffltna Fire Ins. Co. v. Wheeler, 49 N. Y. 616. Followed, 50 N. Y. 661. .^tna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82. Distinguished, 52 N. Y. 11. Agate V. Lowenbein, 4 Daly 262. Eb- VERSED, 57 N. Y. 604. Agate V. Lowenbein, 57 N. Y. 604. FUBTHER APPEAL, 84 N. Y. 672. Agate V. Sands, 8 Daly 66. Amtrmbd, 73 N. Y. 620. Agawam Bank v. Strever, 18 N. Y. 502. Followed, 5 Lans. 233. Ahern v. Nat. Steamship Co., 8 Abb. Pr., N. s., 283 ; 39 How. Pr. 403. See 11 Abb. Pr., N. a., 356 ; 3 Daly 399. Ahern v. Standard Life Ins, Co., 40 How. Pr. 190. Contra, 10 Abb. Pr., n. b., 331 . Aikin v. Albany, &c., R. R. Co., 26 Barb. 289. Distinguished, 31 Barb. 647. Aikin v. Wasson, 24 N. Y. 482. Ap- proved, 46 N. Y. 525. Distinguished, 49 Barb. 294; 58 N. Y. 367. Ainslie v. Mayor, &c., of New York, 1 Barb. 168. Disappeoved, 37 Cal. 395. Aitken v. Clark, 15 Abb. Pr. 319. FuR- THBB DECISION, 16 Abb. Pr. 328 n. Aitken v. Clark, 16 Abb. Pr. 328 n. Ee- vebsed, 15 Abb. Pr. 319. Albany, &c., R. R. Co. v. Cady, 6 Hill 265. Distinguished, 22 Hun 183. Albany, &o., R. R. Co. v. Osbom, 12 Barb. 223. Oveebuled, 48 Barb. 181. CASES CRITICISED. 297 Albany City Bank v. Sohermerhorn, Clarke 297. Reversed, 9 Paige 372. Albany City Bank v. Sohermerhorn, S Paige 372, 875. Followed, 43 Superior 126. Albany Fire Ins. Co. v. Bay, 4 N. Y. •9. Approved, 4 Bosw. 293, 294. Albany Northern R. R. Co. v. Brow- nell, 24 N. Y. 345. DisTiNauisHED, 43 Mich. 146, 147. Reviewed, 24 Hun 217, 218. Albany Street, Matter of, 11 Wend. 149. Qualified, 3 N. Y. 616. Reviewed, 1 Neb. 31. Alden v. .Clark, 11 How. Pr. 209. Ap- I-rovbd, 61 Barb. 361. Alden v. N. Y. Central R. R Co., 26 JX. Y. 102. Criticised, 58 N. Y. 139. Alderman v. Tirrell, 8 Johns. 418. Fol- lOWED, 60 Barb. 121. Aldrioh v. Reynolds, 1 Barb. Ch. 613. Followed, 9 Mo. App. 3. Alexander v. Bennett, 38 Superior 492. Reversed, 60 N. Y. 204. Alexander v. Bennett, 60 N. Y. 204. Distinguished, 66 N. Y. 191. Alexander v. G-ermania Fire Ins. Co., 5 Thomp. & C. 208. Reversed, 66 N. Y. 464. Alexander v. Gennania Fire Ins. Co., 66 N. Y. 464. Distinguished, 83 N. Y. 140. Contra, 68 N. Y. 434. Alexander v. Greene, 3 Hill 9. See 2 N. Y. 204; S. C, 8 N. Y. 375. Alexander v. Hard, 42 How. Pr. 131. ^ee 42 How. Pr. 384. Alexander v. Hoyt, 7 Wend. 89. Criti- cised, 2 Hill 334, 335. Alger V. Scott, 54 N. Y. 14. Followed, 39 Superior 137. See 81 N. Y. 451. Alger V. Sooville, 6 How. Pr. 131. Fol- lowed, 7 How. Pr. 134. Overruled, 7 N. Y. 486. Algie V. Wood, 43 Superior 46. Appeal DISMISSED, 75 N. Y. 610. Algur V. Gardner, 54 N. Y. 360. Dis- tinguished, 66 N. Y. 451. Disapproved, 2 Stew. (N. J.) 455. Followed, 6 Hun 46, 48 ; «4 N. Y. 632, 633. Alloott V. Barber, 1 Wend. 526. Ex- plained AND FOLLOWED, 2 Hall 465. AUen V. Allen, 14 How. Pr. 248. See 14 How. Pr. 360. Allen V. Allen, 59 How. Pr. 27. Contra, 59 How. Pr. 42, 43. Allen V. Brown, 5 Lans. 280. Distin- guished, 53 N. Y. 91. Allen V. Brown, 5 Lans. 511. Followed, 22 Hun 512. Allen V. City of Buffalo, 39 N. Y. 386. Considered, 56 Barb. 340. Allen V. Cook, 26 Barb. 374. Approved 36 Barb. 574. Allen V. Crary, 30 Wead. 349. Disap- proved, 50 N. H. 486. Followed, 27 N. Y 280. Allen V. Crofbot, 2. Wend. 515. Ap- proved, 31 Barb. 471. Allen V. Franklin Fire Ins. Co., 9 How. Pr. 501. Followed, 10 How. Pr. 395, 399. See 9 How. Pr. 524. Allen V. Mapes, 20 Wend. 633. Criti- cised, 1 Daly 278. See 13 Abb. Pr. 268 n. Allen V. Mayor, &o., of New York, 4 E. D. Smith, 404. Distinguished and Dis- . APPOVBD, 12 Abb. Pr. 32. Followed, 2 Hun 306; 4 Thomp. & C. 490. Allen V. Merchants' Bank, 22 Wend. 215. Explained, 3 Hill 560. Followed, 13 Vr. (N. J.) 31. Allen V. Meyer, 71 N. Y. 594. Fol- lowed, 80 N. Y. 642. Allen'v. New Jersey Southern R. R. Co., 49 How. Pr. 14. See 54 How. Pr. 272. AUen V. Patterson, 7 N. Y. 476. Com- mented on, 26 Barb. 9, 14. See 12 How. Pr. 329. Allen V. Pell, 4 Wend. 505. Limited, 7 Hill 53. Allen V. Public Administrator, 1 Bradf. 378. Appihmbd, Seld. No. 93. Allen V. Rightmere, 20 Johns. 365. Followed, 48 Mo. 527. Allen V. Sackrider, 37 N. Y. 341. Fol- lowed, 2 Lans. 179. Allen V. "Williamsburg Savings Bank, 2 Abb. N. Cas. 342. Appirmbd, 69 N. Y. 314. AUen V. ■Williamsburg Savings Bank, 69 N. Y. 314, 317. Followed, 9 Abb. N. Cas. 150 ; 84 N. Y. 87, 88. AUis V. Leonard, 46 N. Y. 688. Fol- lowed, 38 Superior 137. AUis V. Leonard, 58 N. Y. 288. Dis- tinguished AUD APPROVED, 6 Hun 318. AUis V. "Wheeler, 56 N. Y. 50. Distin- guished, 22 Hun 182. Followed, 10 Hun 131. Allison V. Matthieu, 3 Johns. 234. Fol- lowed, 80 N. Y. 374 n. AUison V. WeUer, 3 Hun 608 ; 6 Thomp. & C. 291. Affirmed, 66 N. Y. 614. AUyn V. Thurston, 53 N. Y. 622. Ap- proved, 23 Hun 48. Followed, 67 N. Y. 266. Altemus v. Mayor, &c., of New York, 6 Duer 446. Distinguished, 7 Robt. 217. Althorf V. "Wolfe, 22 N. Y. 355; 2 Hilt. 344. Distinguished, 80 N. Y. 392. American Bible Soc. v. Hebard, 51 Barb. 552. Affirmed, 41 N. Y. 619. 298 CASES CRITICISED. American Ins. Co. v. Bryan, 1 Hill 25. AiTiEMEB, 26 Wend. 563. Appkoved, 84 N. Y. 503. Followed, 80 Id. 71, 79. American Ins. Co. v. Hutton, 24 Wend. 330. Explained, 3 Hill 118. American Life Ins. Co. v. Van Epps, 14 Abb. Pr., n. s., 253. Eevebsed, 56 N. Y. 601. American Medicine Co. v. Kessler, 38 Superior 407. See 44 Superior 557. American Nat. Bank v. "Wlieelock, 45 Superior 205. Appeal dismissed, 82 N. Y. 118. American Transportation Co. v. City of Buffalo, 23 Barb. 272. Affirmed, 20 N. Y. 388 n. American Union Teleg. Co. v. Mid- dleton, 80 N. Y. 408. Eeviewed, 46 Supe- rior 386. Ames V. Duryea, 6 Lans. 155. Af- firmed, 61 N. Y. 609. Ames V. Merriman, 9 Wend. 498. Ex- plained, 3 Hill 447. Ames V. N. Y. Union Ins. Co., 14 N. Y. 253. Followed, 2 Hun 655, 659 ; 5 Thomp. 6 C. 211. Amory v. Lord, 9 N. Y. 403. Distin- GUISHED, 61 N. Y. 641. Amoskeag Manuf. Co. v. Mayor, &c., of New York, 63 N. Y. 637. Distin- guished, 24 Hun 596. Amoskeag Manuf. Co. v. Spear, 2 Sandf. 599. Approved, 23 Hun 638, 640. Anable v. Anable, 24 How. Pr. 92. See 7 Abb. Pr. 350; 15 How. Pr. 169. Anderson, Matter of, 2 Hun 377; 4 Thomp. & C. 658. Modified, 60 N. Y. 457. Anderson v. Dickie, 26 How. Pr. 199. Motion denied, 17 Abb. Pr. 83. Anderson v. HiU, 53 Barb. 238. Op- posed, 9 Abb. Pr., n. s., 294, 297, 304; 40 How. Pr. 171. Anderson v. James, 4 Eobt. 35. Af- firmed, 6 Alb. L. J. 166. Anderson v. Rapelye, 7 Paige 483. Kevbrsed, 4 Hill 472. Anderson v. Rochester, &c., B. R. Co., 9 How. Pr. 553. Criticised, 53 N. Y. 578. Anderson v. Rome, &:o., R. R. Co., 54 N. Y. 334. Approved, 37 Wis. 327, 332. DiSTiNGTTiSHED, 56 N. Y. 667. Followed, 3 Hun 208; 39 Superior 360; 5 Thomp. & C. 379. Anderson v. Speers, 21 Hun 568. See 8 Abb. N. Gas. 455.' Andre-w v. N. Y. Bible, &c., Soc, 8 Leg. Obs. 361. Eeveesed, 8 N. Y. 559 n. Andrews, Matter of, 22 Hun 608 n. Followed, 22 Hun 608. Andrews v. .^tna Life Ins. Co., 8^ Week. Dig. 434. Eevebsed, 12 Week. Dig. 452. .Andrews v. Beecker, 1 Johns. Gas. 411. Observed on, 11 Johns. 49. Andrews v. Betts, 8 Hun 322. Fol- lowed, 17 Hun 130. Andrews v. Durant, 11 N. Y. 35. Ap- proved, 7 Vr. (N. J.) 452. Disapproved, 11 Phil. (Pa.) 628, 629. Andrews v. Glenville "Woolen Co., 50- N. Y. 282, 287. Distingitished, 22 Hun 512, 513, 514 ; 52 N. Y. 655. Qualified, 16 Abb, Pr., N. s., 1, 7. Andrews v. Keeler, 19 Hun 87. Ap- proved, 60 How. Pr. 12. Andrews v. Long, 79, N. Y. 573. Fol- lowed, 24 Hun 137. Andrews v. Long, 9 Week. Dig. 513» Followed, 22 Hun 294, 306. Angel V. Town of Hxime, 17 Han 374. FoLiiowED, 8 Fed. Eep. 852. Angell V. Lawton, 14 Hun 70. Appeal DISMISSED, 75 N. Y. 520. Anibal v. Hunter, 6 How. Pr. 255. Fol- lowed, 6 How. Pr. 401. Annett v. Foster, 1 Daly 502. Fol- lowed, 71 Mo. 310. Annett v. Kerr, 2 Eobt. 556. Distin- guished, 81 N. Y. 580, 583. Anonymous, 17 Abb. Pr. 48. DiSTnsr- GUISHBD, 61 N. Y. 410. Anonymous, 2 Duer 613. Disapproved^ 2 Hilt. 179. Anonymous, 4 How. Pr. 112. Ovee- RULBD, 16 How. Pr. 145, 152. Anonymous, 6 How. Pr. 160. Contra, 8 How. Pr. 434. Anonymous, 59 N. Y. 313. Followed, 80 N. Y. 642. Anonymous, 67 N. Y. 598. Distin- guished, 60 How. Pr. 148. - Anonymous, 10 Paige 20. Not fol- lowed, 13 Otto (U. S.) 69. Eeviewed, 6 Fed. Eep. 60. Anonymous, 5 Wend. 82. Applied, 4 How. Pr. 30. Ansonia Brass, &c., Co; v. Babbitt, 8 Hun 157. Eeveesed, 74 N. Y. 395. Appley V. Trustees of Montauk, 38- Barb. 275. Followed, 16 Hun 134. Arctic Fire Ins. Co. v. Austin, 54 Barb. 559. See 69 N. Y. 470. Arctic Fire Ins. Co. v. Austin,6 Thomp. & C. 63. Eevebsed, 69 N. Y. 470. Arend v. Liverpool, &o.. Steamship Co., 6 Lans. 457. Affirmed, 53 N. Y. 623. Argall V. Jacobs, 56 How. Pr. 167. Fol- LOWEDj 46 Superior 8. CASES CRITICISED. 299 Argal V. Pitts, 17 Hun 561. Affibmed, 78 N. Y. 239. Armstrong v. Craig, 18 Barb. 387. Dis- APPBOTED, Sheld. 385. Armstrong v. Dubois, 1 Abb. App. Deo. 8, 11. Distinguished, 83 N. Y. 526. Armstrong v. Ne-w York Central, &c., R. R. Co., 66 Barb. 437. ArFiBMED,£4 N. Y. 635. Armstrong v. New York Central, &o., R. R. Co., 2 Hun 482. Obdeb ap- FiBMED, 66 N. Y. 407. Armstrong v. Smith, 44 Barb. 120. Dis- TiNomsHED, 4 Hun 264. Armstrong v. Wing, 10 Hun 520. Dis- tinguished, 24 Hun 276. Arnold, Matter of, 60 N. Y. 26. Dis- tinguished, 62 N. Y. 589. Arnold v. Angell, 62 N. Y. 508, 510. Followed, 11 Hun 447, 449. Arnold v. Gilbert, 3 Sandf. Ch. 531. Modified, 5 Barb. 190. Arnold v. Hudson River R. R. Co., 49 Barb. 108. Eevebsed, 55 N. Y. 661. Arnold v. Kinloch, 50 Barb. 44. Ee- VERSED, 6 Alb. L. J. 196. Arnold v. Robertson, 3 Daly 298. Ap- peal DISMISSED, 50 N. Y. 683. Arnold v. Rook River Valley Union R. R. Co., 5 Duer 207. Followed, 64 Me. 39. Arnold v. Suffolk Bank, 27 Barb. 424. Distinguished, 59 N. Y. 108. Arnold v. Thomas, 2 How. Pr. 91. Ap- proved, 8 Abb. N. Cas. 236 ; 81 N. Y. 45. Amot V. Pittston, Sso., Coal Co., 5 Thomp. & C. 143. Eevebsed, 68 N. Y. 558. Arthur v. Brooks, 14 Barb. 533. Con- tra, 12 How. Pr. 313, 315. Arthur v. Griswold, 2 Hun 606; 5 Thomp. & C. 696. Appeal dismissed, 60 N. Y. 143. Arthurton v. Dalley, 20 How. Pr. 311. CoNTBA, 4 Abb. Pr. 441 ; 23 How. Pr. 510, 511. IfOT FOLLOWED, 61 Id. 367. And see 8 Abb. N. Cas. 197?i./ 1 Civ. Pro. 228 ; 2 Daly 225. Ashley v. Marshall, 30 Barb. 426. Af- PIBMED, 27 How. Pr. 599. Ashley v. Marshall, 29 N. Y. 494. Nor IN CONFLICT, 82 N. Y. 275. Astor, Matter of, 50 N. Y. 363. Distin- guished, 60 N. Y. 461 ; 62 Id. 226. Astor, Matter of, 53 N. Y. 617. Distin- guished, 67 N. Y. 443. Astor, Petition of, 2 Thomp. & 0. 488. Affirmed, 2 Thomp. & C. IV. ; 56 N. Y. 625. Astor V. Lamoreaux, 1 N. Y. 522 ; 8 Id. 107 ; 4 Sandf. 524. Explained, 23 Hun 218, 221; 16N. Y. 543; 17 Id. 28. Astor V. Mayor, &c., of New York, 39 Superior 120. Affirmed, 62 N. Y. 580. Astor V. Miller, 2 Paige 68. Distin- guished, 16 "W. Va. 520. 4,tcheson v. Mallon, 43 N. Y. 147. Dis- tinguished, 66 N. Y. 292. Atcherson v. Troy, Sco., R. R. Co., ft Abb. Pr., N. s., 329. Followed, 46 N. Y. 525. ' Atkins V. Lefever, 4 Abb. Pr., n. s., 221. Distinguished, 22 Hun 182, 186. Atlantic, &c., Teleg. Co. v. Barnes^ 39 Superior 40. Affirmed, 64 N. Y. 385. Atlantic Dock Co. v. Libby, 45 N. Y. 499. Distinguished, 63 Barb. 552. Atlantic Ins. Co. v. Storrow, 1 Edw. 621. Modified, 5 Paige 285. Atlantic Ins. Co. v. Storrow, 5 Paige- 285. Approved, 80 N. Y. 79. Atlantic Mut. Ins. Co. v. Bird, 2 Bosw, 195, 196. Not applicable, 44 N. Y. 442. Atlantic Nat. Bank v. Franklin, 55 N, Y. 235. Distinguished,*23 Hun 540, 545. Atlantic State Bank v. Savery, 1& Hun 36. Affirmed, 82 N. Y. 291. Attorney-General v. Continental Life Ins. Co., 53 How. Pr. 16. Distin- guished, 60 How. Pr. 87. Followed, 56 Id. 165. Attorney-General v. Continental Life Ins. Co., 71 N. Y. 325. Not followed^ 1 McCrary (U. S.) 504. Attomey-G«neral, Matter of, v. North America Life Ins. Co., 56 How. Pr. 160. Distinguished, 60 How. Pr. 87. Followed, Id. 94. Attorney-General, Matter of, v. North America Life Ins. Co., 18 Hua 470. Affirmed, 80 N. Y. 152. Attorney-General, Matter of, v. North America Life Ins. Co., 21 Hun. 283. Affibmed as modified, 82 N. Y. 172. Atwater v. Atw^ater, 53 Barb. 621 ; 3& How. Pr. 431. Followed, 1 Hun 446; & Thomp. & C. 455. Atwater v. Fowler, 1 Edw. 417. Dis- tinguished, 54 Cal. 469. Atwell V. Brown, 1 Hun 439 ; 3 Thomp. & C. 779. Affirmed, 59 N. Y. 655. Auchmuty, Matter of, 18 Hun 324. Appeal dismissed, 79 N. Y. 622. Augustine v. Britt, 15 Hun 395. Af- firmed, 80 N. Y. 647. Austin V. Dye, 46 N. Y. 500. Fol- lowed, 1 Hun 515. Austin V. Munro, 47 N. Y. 360. Fol- lowed, 8 Abb. N. Cas. 90 ; 38 Superior 127. See 44 Id. 26. Austin V. Rawdon, 44 N. Y. 63. Dis- tinguished, 67 N. Y. 51. Austin V. Searing, 16 N. Y. 112. Dis- tinguished, 54 N. Y. 564. soo CASES CRITICISED. Averill v. Louoks, 6 Barb. 470. Ee- •ViEWED, 53 Vt. 326. Averill v. Patterson, 10 How. Pr. 85. ■See 14 How. Pr. 95, 96. Avery v. Foley, 4 Hun 415. Followed, -42 Superior 25. Avery v. Slack, 17 Wend. 85. Fol- liOWED, 24 Hun 655. Avery v. Smith, 9 How. Pr. 349. Con- -TBA, 12 Abb. Pr. 78 to./ 14 How. Pr. 508, 511 ; 20 Id. 59. Ayers v. La-wrence, 63 Barb. 464; 1 Thomp. & C. Add. 5. Eeversed, 59 N. Y. 192. Followed, 9 Hun 358, 362 ; 1 Thomp. & 0. 151. Ayers v. Lawrence, 59 N. Y. 192. Foi,- LOWED, 9 Hun 358, 362. Limited, 12 Id. 186. Ayrault v. Pacific Bank, 47 N. Y. 570, 673. Followed, 13 Vr. (N. J.) 31. AyratUt v. Saokett, 17 How. Pr. 461. Apfibmed, 17 How. Pr. 508. Ayres v. O'Farrell, 10 Bosw. 143. Af- firmed, 6 Alb. L. J. 166. OvEEEULED by ■im- plication, 22 Hun 52. Asrres v. O'Farrell, 4 Eobt. 668. Ar- riEMED, 6 Alb. L. J. 166. Ayres v. Trustees of the Methodist Episcopal Church, 3 Sandf. 351, 357. Ap- PEOVED, 34 N. Y. 584. B. Babcock v. Bonnell, 44 Superior 568. Appikmed, 80 N. Y. 244. Babcock v. City of Buffalo, 1 Sheld. S17 ; 56 N. Y. 268. Approved, 83 N. Y. 190. Babcock v. Bokler, 24 N. Y. 623. Fol- lowed, 38 Superior 471. Babcock v. Libbey, 17 Hun 131. Ar- iPiBMED, 82 N. Y. 144. Babcock v. Titter, 1 Abb. App. Dec. 27. DisTiHGtnsHED, 84 N. Y. 39. Followed, Id. 40, 42. Bache v. Purcell, 51 How. Pr. 270. Af- FiEMED, 6 Hun 618. Bacon v. Frisbie, 15 Hun 26. Ee- TERSED in part, 80 N. Y. 394. Bacon v. Oilman, 4 Lans. 456. Af- firmed, 57 N. Y. 656. Bacon V. Beading, 1 Duer 622. Fol- lowed, 11 How. Pr. 572, 573. Contra, 6 Id. 52; 8 Id. 285; 12 Id. 435. Badeau v. Mead, 14 Barb. 328. Ex- I-LAINED, 60 How. Pr. 275. Badeau v. Rogers, 2 Paige 209. Fol- lowed, 35 Superior 372. Badgley v. Decker, 44 Barb. 677. Ap- proved, 23 Hun 72. Bagg, Bxp., V. Jeflferson Com. Pleas, 10 Wend. 615. Followed, 4 How. Pr. 168, 172. Baggott V. Boulger, 2 Duer 160. Dis- ■TiNGtFiSHED, 16 Hun 236. See 12 How. Pr. 134. Bagley v. Clarke, 7 Bosw. 94. Distin- guished, 66 N. Y. 332. Bagley v. Smith, 10 N. Y. 489. Distin- ■GUISHED, 6 Lans. 236 ; 81 N. Y. 304. Bailey v. Bancker, 3 Hill 188. Limited, 28 Barb. 661. Bailey v. Briggs, 56 N. Y. 407, 415. DiSTiNGmsHED, 23 Hun 442. Bailey v. Buell, 59 Barb. 158 ; 50 N. Y- 662. Distinguished, 61 Barb. 609. Fol- lowed, 24 Hun 425, 426. Bailey v. Homestead Fire Ins. Co., 16 Hun 503. Appiembd, 80 N. Y. 21. Bailey v. Lane, 21 How. Pr. 475. Modi- fied, 13 Abb. Pr. 354. Bailey v. Mayor, &c., 2 Den. 433. Dis- tinguished, 62 N. Y. 170. Bailey v. Stone, 41 How. Pr. 346. Dis- tinguished, 64 Barb. 417. Bain v. Bro'wn, 7 Lans. 506. Affirmed, 56 N. Y. 285. Baird v. Daly, 4 Lans. 426. Eeveesed, 57 N. Y. 236. Baird v. Daly, 68 N. Y. 547, 551. Ee- VIEWED, 24 Hun 38. Baker v. Arnold, 1 Cai. 258. See 17 Johns. 338. Baker v. Arnot, 5 Thomp. & C. 215. Affirmed, 67 N. Y. 448. Baker v. Drake, 53 N. Y. 211. Fol- lowed, 81 N. Y. 27. Baker v. Hoag, 7 Barb. 113. Followed, 35 Superior 372. Baker v. Home Life Ins. Co., 4 Thomp. & C. 582. Affirmed, 64 N. Y. 648. Baker v. Lamb, 11 Hun 519, 522. Fol- lowed, 60 How. Pr. 481. Baker v. Mayor, &c., of New York, 9 Abb. Pr. 82. Followed, 45 Superior 373. Baker v. People, 15 Hun 256. Ee- veesed, 19 Alb. L. J. 201. Baker v. Stackpoole, 9 Cow. 420. Ap- proved, 24 Hun 512. CASES CRITICISED. 301 Baker v. Thrasher, 4 Den. 493. Ex- plained, 23 Hun 614. Baker v. TTnion Mut. Life Ins. Co., 43 N. Y. 283. Distinguished, 7 Fed. Eep. 175 176. "^ ' Baker v. Van Epps, 58 How. Pr. 401. Affirmed, 22 Hun 460. Baker v. Wheeler, 8 Wend. 505. Dis- tinguished, 44 Barb. 448. Balbo V. People, 19 Hun 424. Af- pikmed, 80 N. Y. 484. Balbo V. People, 80 N. Y. 484. Fol- lowed, 80 N. Y. 513. Baloh V. New York, &o., B. B. Co., 46 N. Y. 521. Followed, 9 Abb. N. Cas. 278. Baldwin v. Brown, 37 How. Pr. 385. Not concubbed in, 39 How. Pr. 93. Baldwin v. Brown, 16 N. Y. 359. Fol- lowed, 37 Superior 171. Baldwin v. City of Buffalo, 29 Barb. 396. Affibmed, 35 N. Y. 375. Baldwin v. New York Life Ins. Co., 3 BOSW. 530. CONSIDEBED OVEBBULED, 82 N. Y. 552. Baldwin v. Eyan, 3 Thomp. & C. 251. Followed, 38 Superior 471. BaU V. Gardner, 21 Wend. 270. Distin- guished, 58 N. Y. 588. BaU V. Larkin, 3 E. D. Smith 555. CoN- TBA, 4 Hill 13. BaU V. Liney, 48 N. Y. 6. See 44 Supe- rior 416. BaUard v. Burgett, 40 N. Y. 314. Ap- PEOVED, 13 Vr. (N. J.) 314. Followed, 1 Huu 513, 515 ; 46 N. Y. 500, 503. Ballin v. DiUaye, 36 How. Pr. 216. Fol- lowed, 35 How. Pr. 279, 280. BaUin v. Dillaye, 37 N. Y. 35. Ap- PEOVED, 10 W. Va. 171, 175. Distinguished, 42 N. Y. 633. BaUou V. Cunningham, 4 Lans. 74. ;See 60 Barb. 425. Ballou V. Cunningham, 60 Barb. 425. Eeviewed, 25 Kan. 287. BaUou V. Parsons, 67 Barb. 19. Af- hemed, see 55 N. Y. 673. Bangs V. Strong, 4 N. Y. 315. See 9 N. Y. 241. Bank for Savings v. Frank, 56 How. . Pr. 403. Affirmed, 45 Superior 404. Bank of Albion v. Bums, 46 N. Y. 170. Followed, 2 Thomp. & C. 60. Bank of Attica v. "Wolf, 18 How. Pr. 102. Followed, 18 How. Pr. 397. Bank of Auburn v. Boberts, 44 N. Y. 192. Followed, 41 Superior. 279. Bank of Commonwealth v. Mayor, 43 N. Y. 184. Followed, 45 N. Y. 682. ,J^^^ °^ Genesee v. Patohin Bank, 13 N. Y. 309. Distinguished, 4 Lans. 306 Followed, 18 How. Pr. 308, 309; 19 Id. 51, 52. Bank of Geneva v. Hotchkiss 5- How. Pr. 478. See 7 How. Pr. 197. Bank of Havana v. Magee, 20 N. Y, 355, 361. Followed, 61 How. Pr. 394. Bank of Ithaca v. Bean, 1 Code 133. Dictum ovebeuled, 11 Barb. 651. Bank of Lansingburgh v. McKie, 7 How. Pr. 360. Ovebeuled, 16 How. Pr. 78. Bank of Michigan v. Jessup, 19 Wend., 10. Examined, 1 Doug. (Mich.) 58. Bank of Monroe v. Culver, 2 HiU 531. Followed, 38 Superior 263. Bank of Monroe v. Schermerhom, Clarke 297. Eeveesed, 9 Paige 372. Bank of New York v. Bank of Ohio, 29 N. Y. 619. Distinguished, 46 Superior 517. Bank of Orange v. Brown, 3 Wend.. 158. Followed, 32 Wis. 400. Bank of Orleans v. Flagg, 3 Barb. Ch. 316, 318. Cbiticised, 23 Hun 137. Bank of Orleans v. Smith, 3 HiU 560. Keveesed, 7 HUl 595. Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473. Explained, 8 Mo. App. 505, 507. Followed, 80 N. Y. 387. Eeviewed, 34 Ark. 336. Bank of Eochester v. Gould, 9 Wend. 279. /See 2 HUl 587. Bank of Eochester v. Jones, 4 Den.. 489. Eeveesed, 4 N. Y. 497. Bank of Eochester v. Jones, 4 N. Y. 497. Followed, 47 N. Y. 638; 57 N. Y.. 37. . Bank of Borne v. ViUage of Borne, 18 N. Y. 38. Distinguished, 53 N. Y. 138. Followed, 59 Barb. 446 ; 82 N. Y. 622. Ee- viewed, 2 Trans. Eep. 762, 768. Bank of Eome v. ViUage of Eome, 19 N. Y. 20. Distinguished, 23 N. Y. 439, 440 ; 84 N. Y. 540. Bank of Butland v. Buck, 5 Wend. 66. Qualified, 2 Abb. N. Cas. 310. Bank of St. Albans v. GiUUand, 23 Wend. 311. Commented on, 59 How. Pr. 300. Distinguished, 81 N. Y. 226. Bank of SaUna v. Abbott, 3 Den. 181. Overeuled, 3 Barb. 12. Bank of Sandusky v. Scoville, 24 Wend. 115. Commented on, 59 How. Pr. 300. Distinguished, 81 N. Y. 226. Bank of Troy v. Tapping, 9 Wend. 273. Eeviewed, 13 So. Car. 337. Bank of United States v. Davis, 2: Hill 451, 463. Not applicable, 82 N. Y. 306. Eeviewed, 55 Cal. 162. S02 CASES CRITICISED. Bank of 'Watertown, Exp., v. As- sessors of th.e Village of Watertown, 25 Wend. 686. Ikcoekectly bepoeted, 2 Hill 3^3. Banta v. Garmo, 1 Sandf. Ch. 383, 385, ■S86. Not followed, 16 W. Va. 636. Barber v. Crossett, 6 How. Pr. 45. Con- rcRA, 6 How. Pr. 172, 174 n. Barber v. Harris, 15 Wend. 615. Obiter, 37 Ind. 400, 402. Barber v. Hubbard, 3 Code 156. Ap- FiEMED, 3 Code 169. Barber v. Marble, 2 Thomp. & C. 114. Distinguished, 1 Hun 421, 428 ; 3 Thomp. & C. 595. Barber v. Rose, 5 Hill 76. Distin- guished, 80 N. Y. 362. Barbour v. Bverson, 16 Abb. Pr. 366. Explained, 5 Abb. Pr., n. s., 333, 337. Barclay v. Talman, 4 Edw. 123. Ar- iFlBMED, 3 Ch. Sent. 56. Barclay v. Wilcox, 9 Week. Dig. 298. Affiemed, 13 Week. Dig. 173. Barger v. Durvin, 22 Barb. 68. Ovbb- EULED, 34 Barb. 193 ; 34 N. Y. 178. Barbyte v. Shepherd, 35 N. Y. 238, 245. Ceitioised, 53 N. Y. 56; 6 Kan. 500, 508. Followed, 4 Lans. 163. Barker v. Cook, 40 Barb. 254. Followed, 5 Hun 624. Barker v. Russell, 1 Code 5. Modified, 1 Code, N. s., 57. Barker v. Savage, 45 N. Y. 191. Fol- liOWED, 35 Superior 390. Barker v. Savage, 1 Sweeny 288. Ap- PEOVED, 33 Superior 185, 186. Barlow v. Scott, 24 N. Y. 40. Ex- plained, 40 N. Y. 504, 509. Barnard v. Darling, 1 Barb. Ch. 218. Followed, 9 Abb. N. Cas. 461. Barnard v. Heydrick, 49 Barb. 62, 70. Followed, 80 N. Y. 551. Contra, 17 How. Pr. 477. Barnard v. Kobbe, 3 Daly 35, 373. Af- fiemed, 54 N. Y. 516. Barnard v. -Monnot, 34 Barb. 90. Ee- versed, 1 Abb. App. Dec. 108 ; 33 How. Pr. 440 ; 3 Keyes 203. Barnard v. Viele, 21 Wend. 88. Fol- lowed, 80 N. Y. 209. Barnard v. Wheeler, 3 How. Pr. 71, 73. Explained, 4 How. Pr. 246, 249, 409, 410. Barnes v. Atlantic, &c., R. R. Co. of Brooklyn, Supreme Ct., MSS. Followed, 9 Abb. N. Cas. 184 ; 6 How. Pr. 400. Barnes v. Barrow, 61 N. Y. 39, 41. Dis- , TiNGUisHED, 24 Hun 615. Barnes v. Brown, 11 Hun 315. Be- ■VERSED irapart, 80 N. Y. 527. Barnes v. Brown, 80 N. Y. 527, 534. Followed, 9 Abb. N. Cas. 435. Barnes v. Harris, 4 N. Y. 374. Ex- plained, 8 Abb. Pr. 119. Barnes v. Hathaway, 66 Barb. 452. Followed, 22 Hun 429. Barnes v. McAllister, 18 How. Pr. 534. Contra, 14 Abb. Pr., n. s., 273. Barnes v. Mott, 16 Abb. Pr., n. s., 57. Affirmed, 6 Daly 150. Barnes v. Mott, 6 Daly 150. Affiemed, 64 N. Y. 397. Barnes v. Mott, 64 N. Y. 397. Applied, 6 Abb. N. Cas. 469, 472. Barnes v. Ferine, 12 N. Y. 18. Fol- lowed, 35 Superior 223. Barnes v. Quigley, 59 N. Y. 265. Dis- tinguished, 63 N. Y. 614; 2 Utah T. 235. Noticed, 44 Superior 424. Barnes v. Stoughton, 6 Hun 254. Ap- peal DISMISSED, 58 N. Y. 645. Barnes v. Underwood, 3 Lans. 526; 47 N. Y. 351. Distinguished, 4 Hun 246. Barnes v. West, 16 Hun 68. Fol- lowed, 61 How. Pr. 242. Barnet v. Muncie Nat. Bank of In- diana, 8 Otto (U. S.) 555. Followed as eon- -■■ J, 81 N. Y. 15, 17. Bamett, Matter of, 52 How. Pr. 73. Modified, 53 How. Pr. 247 ; 11 Hun 471. Bamett v. Chicago, Sec, R. R. Co., 6 Thomp. & C. 489 n. Affirmed, 4 Hun 114 ; S. C, 6 Thomp. & C. 358. Barnett v. Kincaid, 2 Lans. 320. Ex- plained, 16 Hun 6. Bamett v. Lichtenstein, 39 Barb. 194. Appeoved, 10 W. Va. 175. Cihticisbd, 57 Barb. 227. Barney v. G-rifan, 2 N. Y. 365. Dis- APPEOVED, 7 Neb. 429, 433. Barney v. Oyster Bay and Hunting- ton Steamboat Co., 2 Thomp. & C. 598. Affirmed, 67 N. Y. 301. Bamum v. Seneca County Bank, '6 How. Pr. 82. Followed, 10 How. Pr. 415, 420. Barret v. Graoie, 34 Barb. 20. Contea, 4 Duer 642 ; 11 How. Pr. 1. Barrett v. Warren, 3 Hill 348, 353. Followed, 76 111. 482. Not followed, 55 'Cal. 58. Barringer v. New York Central, &c., R. R. Co., 18 Hun 398. Distinguished, 84 N. Y. 254. Barrow v. Rhinelander, 3 Johns. Ch. 614. Reversed in part, 17 Johns. 538. Barry v. Equitable Life Assur. Soc, 59N. Y. 587. Followed, 71 N. Y. 267. ' Barry v. Merchants' Exchange Co., 1 Sandf. Ch. 280. Commented on, 15 N. Y. 62, 262. Barteau v. Phoenix Mut. Life Ins. Co., 3 Thomp. & C. 576. Affirmed, 67 N. Y. 595. CASES CRITICISED. 303 . Bartlett, Exp., 4 Bradf. 221, 224. Ap- PKOVED, 72 Mo. 207. Bartlett, Matter of, 9 How. Pr. 414. See 42 Barb. 206. Bartlett v. Bartlett, Clarke 460. Fol- lowed, 59 How. Pr. 43. Not followed, 59 How. Pr. 27. BEirtlett V. Campbell, 1 Wend. 50. Ex- plained, 15 N. Y. 405. Bartlett v. Orozier, 17 Johns. 439. Com- mented on, 4 Hill 630. Distinguished, 46 Superior 114. Bartlett v. Drew, 60 Barb. 648 ; 4 Lans. 444. Appibmed, 57 N. Y. 587. Bartlett v. McNeil, 5 Thomp. & C. 675. Appibmed, 60 N. Y. 53. Bartley v. Richtmyer, 4 N. Y. 38. Ee- yiEWED, 52 Wis. 617. Barto V. Himrod, 8 N. Y. 483. Distin- «TiiSHED, 61 N. Y. 84. Barton v. Beer, 21 How. Pr. 309. Fol- lowed, 24 How. Pr. 31, 32. Barton v. City of Syracuse, 37 Barb. 292. Appibmed, 36 N. Y. 54. Barton v. City of Syracuse, 36 N. Y. 54. Followed, 20 Minn. 117, 123. Barton v. Hermann, 11 Abb. Pr., n. s., 378. Followed, 42 Superior 256. Barton v. Ne-w York Central, &c., R. R. R. Co., 1 Thomp. & 0. 297. Appirmed, 56 N. Y. 660. Barton v. Port Jackson, fee. Plank Road Co., 17 Barb. 397. Reviewed, 7 Bradw. (HI.) 564. Basldn v. Baskin, 36 N. Y. 416. Dis- tinguished, 67 N. Y. 413. Basklns v. Shannon, 3 N. Y. 310. Fol- lowed, 43 Superior 335. Bass V. Comstock, 38 N. Y. 21. Dis- tinguished, 60 N. Y. 429. Bass V. Wtiite, 7 Lans. 171. Reveesed, €5 N. Y. 565. Bassett v. Bassett, 55 Barb. 505. Ap- WKMED, 6 Alb. L. J. 166 ; 46 N. Y. 170. Bassett v. Fish, 75 N. Y. 303. Ex- plained, 46 Superior 115. Bassett v. Spofford, 2 Daly 432. Fol- lowed, 5 Lans. 424. Bassford, Matter of, 50 N. Y. 509. Followed, 4 Hun 439. Bastable v. City of Syracuse, 8 Hun 587. Appeal dismissed, 72 N. Y. 64. Bate V. Graham, 11 N. Y. 237. Distin- guished, 24 Hun 468, 470 ; 81 N. Y. 272. Bates V. Coster, 1 Hun 400. Followed, 4 Hun 273. Bates V. Relyea, 23 Wend. 336. Oveb- EULED, 4 N. y. 254. Bates V. Rosecrans, 37 N. Y. 412. Fol- liOWED, 43 Superior 131. Bates V. TJnderhill, 3 Eedf. 365. Not followed, 84 N. Y. 346. •Bathgate v. Haskin, 5 Daly 361. Re- versed, 63 N. Y. 261. Bathgate v. Haskin, 59 N. Y. 533. Followed, 23 Hun 99, 101. Battell V. Torrey, 65 N. Y. 294. Pol- lowed, 3 Abb. N. Gas. 285, 288. Batterman v. Finn, 32 How. Pr. 501. Appeal dismissed, 40 N. Y. 340. Batterman v. Finn, 34 How. Pr. 108. See 32 How. Pr. 501. Batterman v. Finn, 40 N. Y. 340. Dis- tinguished, 47 N. Y. 45, 46. Batterman v. Pierce, 3 Hill 171, 176. CONSIDERIJD, Hill & D. 174. Batterson v. Sandford, 45 Superior 27. Followed, 1 Civ. Pro. 42. Battle V. Rochester City Bank, 5 Barb. 414. Distinguished, 52 Md. 681. Baulec v. New York, &c., R. R. Co., 59 N. Y. 356. Reviewed, 73 Ind. 273. Baxter v. Arnold, 9 How. Pr. 445. Fol- lowed, 11 How. Pr. 138, 139. Baxter v. Drake, 22 Hun 565. Ap- pibmed, 24 Hun V. ; 1 Civ. Pro. 226. Baxter v. Putney, 37 How. Pr. 140. Contra, 41 How. Pr. 86. ' Baxter v. Ryerss, 13 Barb. 267. Ovee- BULED, 29 How. Pr. 20, 26. Baxter v. Second Ave. R. R. Co., 3 Robt. 510. Appboved, 33 Superior 185, 186. Bay V. Coddington, 5 Johns. Ch. 54. Criticised, 22 Alb. L. J. 191 ; 12 Otto (U. S.) 25, 44. See Coddington v. Bay. Bayard v. Hoffman, 4 Johns. Ch. 450. Appboved, 6 Stew. (N. J.) 298. Disapproved, 2 Tenn. Ch. 421. Baylis v. Travellers' Ins. Co., MSS. Op. Followed, 22 Hun 188. Beach v. Bay State Steamboat Co., 6 Abb. Pr. 415; 27 Barb. 248; 16 How. Pr. 1. Reversed, 10 Abb. Pr. 71 ; 18 How. Pr. 335. Beach v. Bradley, 8 Paige 146. Ex- plained, 3 Barb. Ch. 24. Beach v. Cook, 39 Barb. 360. Appirmed, 26 How. Pr. 601. Beach v. Cook, 28 N. Y. 508. Distin- guished, 57 N. Y. 565. Beach v. Crain, 2 N. Y. 86. Distin- guished, 54 Barb. 191 ; 55 N. Y. 598. Beach v. Furman, 9 Johns. 229. Dis- tinguished, 2 Lans. 354. Beach v. Gray, 2 Den. 84. Explained, 13 Abb. Pr. 388, 392. Beach v. Gregory, 2 Abb. Pr. 203. Ap- proved, 59 How. Pr. 389. Beach v. Mayor, &c., of New York, 14 Hun 79. Approved, 24 Hun 168. 304 CASES CEITICISED. Beach v. Raritan, &o., R. R. OO., 37 N. Y. 457. DisTiNGTTiSHBD, 24 Hun 373. Beach v. Reynolds, 53 N. Y. 1. Fol- lowed, 47 How. Pr. 288 ; 1 Hun 312 ; 38 Su- perior 367. DisTiNauiSHED, 82 N. Y. 513. Beach v. Smith, 28 Barb. 254. Not fol- lowed, 61 How. Pr. 459. Beach v. Smith, 30 N. Y. 116. Distin- GTJISHED, 61 How. Pr. 459. Beach v. Southworth, 6 Barb. 173. Followed, 12 How. Pr. 381, 384. Beal V. Finch, 11 N. Y. 128. Commented ON, 3 E. D. Smith 595. Beals V. Benjamin, 29 How. Pr. 101. Contra, 29 How. Pr. 97. Beals V. Q-uemsey, 8 Johns. 446. Ap- proved, 12 Johns. 324. Beams, Matter of, 17 How. Pr. 459. See 19 How. Pr. 518. Bean v. Edge, 11 Week. Dig. 510. Af- firmed, 12 Week. Dig. 111. Bean v. Pettingill, 2 Abb. Pr., n. s., 58. Affirmed, 7 Eobt. 7. Beards v. "Wheeler, 11 Hun 539. Ap- peal dismissed, 76 N. Y. 213. Beards v. "Wheeler, 76 N. Y. 213. Dis- tinguished, 23 Hun 428. Beardsley v. Dickerson, 4 How. Pr. 81. Explained, 4 How. Pr. 409, 411. Beardsley v. Maynard, 4 Wend. 336. Affirmed, 7 Wend. 560. Beams v. Gould, 8 Daly 384. Affirmed, 77 N. Y. 595. Beattie v. Niagara Savings Bank, 41 How. Pr. 137. Overruled, 54 N. Y. 147, 150. Bech V. Ruggles, 6 Abb. N. Cas. 69. Followed, 58 How. Pr. 183, 184. Beck V. Allison, 4 Daly 421. Eeveesed, 56 N. Y. 366. Beck V. Bast River Ferry Co., 6 Eobt. 82. Distinguished, 24 Hun 103; 66 N. Y. 11, 13. Beck V. Stephani, 9 How. Pr. 193. Fol- lowed, 20 Minn. 175. Becker v. Howard, 47 How. Pr. 423. Eeversed, 4 Hun 359 j 66 N. Y. 5. Beckwith, Matter of, 15 Hun 326. See 82 N. Y. 83. Becfcwith v. New York Central R. R. Co., 64 Barb. 299. See 9 Alb. L. J. 45. Beckwith v. Union Bank of New- York, 9 N. Y. 211. Distinguished, 24 Hun 97, 98. Beckwith v. "Whalen, 9 Hun 408. Former appeal, 65 N. Y. 322. Beckwith v. "Whalen, 5 Lans. 376. Fol- lowed, 3 Hun 502. Bedell v. Sturta, 6 Abb. Pr. 319 n. Con- tra, 9 Abb. Pr. 58 n., 240. Bedford v. Terhune, 1 Daly 371. Af- firmed, 30 N. Y. 453. Bedford v. Terhune> 30 N. Y. 453. Ex- plained, 56 N. Y. 163. Beebe, Matter of, 20 Hun 462. Doubted, 1 Civ. Pro. 324. Beebe v. Dowd, 22 Barb. 255. Fol- lowed, 61 How. Pr. 143. Beebe v. Button, 47 Barb. 187. Disap- proved, 6 Abb. Pr., n. s., 143. Beebee v. Pyle, 1 Abb. N. Cas. 412. Not followed, 129 Mass. 523. Beekman's Petition, 19 Abb. Pr. 244. Affirmed, 1 Abb. Pr., n. S., 449. Beekman v. Bonsor, 23 N. Y. 317, Limited, 4 Hun 287, 291. Beekman v. Lansing, 3 Wend. 446. Ex- plained, 6 Hill 382. Eeviewed and ap- proved, 42 Mich. 79. Beekman v. People, 27 Barb. 260. Af- firmed, 23 N. Y. 575. Beers v. Hendrickson, 6 Eobt. 53. Modified, 45 N. Y. 665. Beisiegel v. New York Central R. R. Co., 14 Abb. Pr., n. s., 29. Followed, 38 Superior 133. Beisiegel v. New York Certtral R. R.^ Co., 33 Barb. 429. Eeversed, 40 N. Y. 9. Beisiegel v. New York Central R. R. Co., 34 N. Y. 622. Partially overruled, 34 Iowa 276, 279. Beisiegel v. New York Central R. R, Co., 40 N. Y. 9. See 39 How. Pr. 407, 414. Belden v. Devoe, 12 Wend. 223, 225. Distinguished, 9 Abb. N. Cas. 461. Belden v. Meeker, 47 N. Y. 307. Fol- lowed, 2 Hun 610. Belding v. Conklin, 4 How. Pr. 196. Commented on, 4 How. Pr. 269, 271. Contba, Id. 67, 134. Belger v. Dinsmore, 34 How. Pr. 421 ;. 51 Barb. 69. Eeviewed, 35 Superior 182. Belger v. Dinsmore, 51 N. Y. 166. Ex- plained, 2 Hun 49. Followed, 66 Barb. 286. Belknap v. Bender, 4 Hun 414 ; 6 Thomp. & C. 611. Affirmed, 75 N. Y. 446. Belknap v. North America Life Ins. Co., 11 Hun 282. Followed, 61 How. Pr. 349; 23 Hun 255. Belknap v. Sealey, 14 N. Y. 143, 144. Distinguished, 83 N. Y. 120. Bell V. Dagg, 2 Thomp. & C. 623. Ee- versed, 60 N. Y. 528. Bell V. Day, 32 N. Y. 165. Distinguished, 6 Hun 46, 47; 53 Iowa 630. Followed, 1 Hun 434 ; 50 How. Pr. 350 ; 45 Superior 61. Bell V. Esopus, 49 Barb. 506. Limited, 1 Hun 554, 556. Bell V. Leggett, 7 N. Y. 176. Eeviewed, 15 Nev. 124, 132. CASES CRITICISED. 305 Bell V. Richmond, 4 Abb. Pr., n. s., 44. CoUTBA, 64 N. Y. 120. Bell V. Richmond, 50 Barb. 571. Contra, 1 Abb. Pr., N. s., 452 ; 12 Id. 306 ; 64 N. Y. 120; 7Kobt. 551. Bellinger v. Oraigue, 31 Barb. 534. Dis- TiNauisHED, 83 N. Y. 197. Bellinger v. Gray, 51 N. Y. 610. ' Dis- tinguished, 62 N. Y. 361 ; 7 Fed. Eep. 158. Bellinger v. Martindale, 8 How. Pr. 113. FoiiLOWED, 54 How. Pr. 114. Bellinger v. New York Central R. R. Co., 23 N. Y. 42. Distinguished, 58 N. Y. 423. Followed, 3 Hun 523, 527 ; 5 Thomp. & C. 653, 654. Bellows V. Folsom, 2 Bobt. 138. Dis- tinguished, 60 N. Y. 151. Belmont v. Coleman, 1 Bosw. 188. Criticised, 50 N. Y. 143. Belmont v. Ooman, 22 N. Y. 438. Dis- tinguished, 37 N. Y. 575, 578. Eeyiewed, 53 Iowa 579. Belmont v. Erie R'y Co., 52 Barb. 637, 639, 665. Approved, 24 Hun 338. Belmont v. Ponvert, 3 Kobt. 693. Ar- pirmed, 3 Eobt. 698 n. Belmont v. Ponvert, 35 Superior 208. See as to costs, 38 Superior 425. Belton V. Baxter, 14 Abb. Pr., n. s., 404. Distinguished, 58 N. Y. 411. Belton V. Baxter, 33 Superior 182. Ee- VEBSED, 54 N. Y. 245. See 58 N. Y. 411. Belton V. Baxter, 54 N. Y. 245. Distin- guished, 58 N. Y. 411, 414. Bendemagle v. Cocks, 19 Wend. 151 ; Id. 207. Criticised, 47 Coun. 326, 327. Bendetson v. French, 46 N. Y. 266. Distinguished, 54 N. Y. 266. Bendit v. Annesley, 27 How. Pr. 184. Followed, 61 How. Pr. 143. Benedict v. Benedict, 15 Hun 305. Ar- piRMED, 24 Hun v. Benedict v. Benedict, 9 Week. Dig. 123. Appirmed, 12 Week. Dig. 249. Benedict v. Caffe, 3 Duer 669. Contra, 5 How. Pr. 337, 361 ; 14 How. Pr. 522. Benedict v. Cowden, 49 N. Y. 396. Distinguished, 54 N. Y. 240. Benedict v. Field, 16 N. Y. 595. Fol- lowed, 18 How. Pr. 383, 384. Benedict v. Gilman, 4 Paige 58. Ap- proved, 22 Hun 531. Benedict v. Harlow, 5 How. Pr. 347. See 62 Barb. 500. Benedict V. Howard, 31 Barb. 569. Dis- tinguished, 83 N. Y. 206. Benedict v. Seymour, 6 How. Pr. 298. See 8 How. Pr. 242, 243. Benedict v. Warriner, 14 How. Pr. 568. Distinguished, 58 N. Y. 112. Benedict v. Western Union Teleg. Co., 9 Abb. N. Cas. 221. Approved, Id. 228. Benedict, &o., Manuf. Co. v. Thayer, 20 Hun 547. Motion to dismiss appeal de- nied, Oct. 5th, 1880. Benedict, &o., Hanuf. Co. v. Thayer, 21 Hun 614. Motion to dismiss appeal de- nied, 82 N. Y. 610. Benjamin v. Arnold, 2 Hun 447; 5 Thomp. & C. 54. Ovebbuled, 64 N. Y. 461. Benjamin v. Benjamin, 5 N. Y. 383. Followed, 16 How. Pr. 461, 465. Benjamin v. Elmira, &c., R. R. Co., 49 Barb. 441. Approved, 72 Mo. 186. Dis- tinguished, 23 Hun 136. Benjamin v. Taylor, 12 Barb. 328. See 44: Superior 26. Bennett v. Austin, 10 Hun 451. Ee- versbd, 20 Alb. L. J. 240. Bennett v. Brown, 20 N. Y. 99. Dis- tinguished, 58 N. Y. 587. Bennett v. Buchan, 5 Abb. Pr., n. s., 412.' Eeversed, 61 N. Y. 222. Bennett V. Buchan, 53 Barb. 578. Ee- versed, 10 Alb. L. J. 239. Bennett v. Cook, 43 N. Y. 537. Fol- lowed, 57 N. H. 168, 170. Bennett v. Judson, 21 N. Y. 238. Com- mented ON, 55 Barb. 534 ; 57 Id. 414 ; 39 How. Pr. 172, 174. Criticised, 51 N. Y. 33; 5 Oreg. 400, 403. Distinguished, 66 Barb. 205. Explained, 40 N. Y. 562, 566 ; 4 Thomp. & C. 531. Followed, 25 How. Pr. 389, 392. Limited, 2 Hun 318, 320, 321. Quali- fied, 48 How. Pr. 193, 201. Questioned, 23 Hun 208. Bennett v. Lake, 47 N. Y. 93. See 44 How. Pr. 495, 496. Bennett v. North British, &c., Ins. Co., 8 Daly 471. Affirmed, 81 N. Y. 273. Bennett v. Silliman, 24 How. Pr. 337. Obsolete, 3 Abb. Pr., n. s., 443. Bennett v. Van Syckel, 18 N. Y. 481. Distinguished, 58 N. Y. 210. Followed, 11 Abb.Pr.,N.s.,123; 45 N. Y. 209. Bensel v. Gray, 62 N. Y. 632. Further appeal, 80 N. Y, 517. Bensel v. Gray, 44 Superior 372. Af- firmed, 80 N. Y. 517. Benson v. Le Roy, 4 Johns. Ch. 651. Distinguished, 23 Hun 127. Benson v. Mayor, &c., of New York, 10 Barb. 223. Explained, 40 Superior 232. Eeviewed, 31 N. Y. 202. Benson v. Tilton, 24 How. Pr. 494. Af- firmed, 41 N. Y. 619. Bentley v. Jones, 4 How. Pr. 335. Dis- approved, 1 Daly 452. Followed, 6 How. Pr. 127. See 5 Id. 30, 31 ; 6 Id. 413, 417. Benton v. Martin, 31 N. Y. 382. Over- ruled, 40 N. Y. 345. TJ 306 CASES CEITICISED. Benton v. Martin, 52 N. Y. 570. Dis- tinguished, 22 Hun 244. Benton v. Pratt, 2 Wend. 385. Oveb- KULED, 5 Thomp. & C. 15. Bergen v. Carman, 18 Hun 35o. Re- versed, 8 Abb. N. Caa. 50 ; 79 N. Y. 146. Berlin v. Hall, 48 Barb. 442. Limited, 14 Abb. Pr., N. s.. Ill, 115. Berner v. Mittnacht, 2 Sweeney 582. FoLi,0WED, 1 Thomp. & C. 290. Bemhard v. Seligman, 54 N. Y. 661. Noticed, 44 Superibr 424. Bernhardt v. Rensselaer, Sec, B. R. Co., 18 How. Pr. 427. Revebsed, 19 How. Pr. 199. Berrion's Estate, 16 Abb. Pr., n. s., 23. CoNTBA, 1 Eedf. 323. Berry v. Mutual Ins. Co., 2 Johns. Ch. 603. See 2 Disn. (Ohio) 98. Berry v. People, 8 Week. Dig. 15. Ar- FiEMED, 77 N. Y. 588. Berthelon v. Betts, 4 Hill 577. Com- mented ON. 2 Barb. Ch. 291. Bertholf v. O'Reilly, 8 Hun 16. Ap- PBOVED, 24 Hun 102. Beselv. New York Central, &o., R. R. Co., 70 N. Y. 171. Applied, 8 Abb. N. Cas. 48. Besley v. Palnaer, 1 Hill 482. Distin- guished, 18 N. Y. 471. Bettis V. Goodwill, 32 How. Pr. 137. Distinguished, 63 N. Y. 265. Betts V. Bache, 23 How. Pr. 197. Ar- fiEMED, 14 Abb. Pr. 279 ; 6 Bosw. 614. Betts V. Betts, 4 Abb. N. Cas. 317. See 57 How. Pr. 355 n. Betts V. Garr, 26 N. Y. 383. Followed. S Abb. N. Cas. 320, 321. Bevan v. Cooper, 72 N. Y. 317, 327, 329. Appbovbd, 23 Hun 338. Distinguished and LIMITED, 24 Hun 336, 337. Limited, 4 Eedf. 34. Bid well V. Lament, 17 How. Pr. 357. Re- viewed AND distinguished, 34 Superior 145. Bidw^ell V. Northwestern Ins. Co., 19 Jif. Y. 179. Distinguished, 65 N. Y. 14. Bielsohofsky v. People, 3 Hun 40. Dis- tinguished, 10 Hun 158, 159. Bigelow V. Benton, 14 Barb. 123. Dis- tinguished, 66 N. Y. 332. Bigsby V. Warden, 62 N. Y. 27. Dis- tinguished, 11 Hnn 230, 231. Bildersee v. Aden, 10 Abb. Pr., n. s., 163. Reversed, 62 Barb. 175. Billborough v. Metropolis Ins. Co., 5 Duei- 587. Reviewed, 6 Fed. Eep.^675. Billings V. Baker, 28 Barb. 343 ;'15 How. Pr. 525. See 2 Lans. 21. Bills v.New York Central R. R. Co., 53 N. Y. 608. Further appeal, 84 N. Y. 6. Binck V. Wood, 43 Barb. 315. Ar- riBMED, Ct. of App., 1869. Bingham v. Disbrow, 14 Abb. Pr. 251. REVERSBf), 5 Trans. App. 198. Binnard v. Spring, 42 Barb. 470. Ap- proved, 2 Lans. 67. Binsse v. Wood, 47 Barb. 624. Af- firmed, 34 How. Pr. 629. Binsse v. "Wood, 37 N. Y. 526. Distin- guished, 46 N. Y. 99. Birokhead v. Brown, 5 Hill 634; 2 Den. 375. Criticised, 24 Hun 613, 614, 615. Birdsall v. Phillips, 17 Wend. 464. Ap- proved, 60 How. Pr. 446 ; 84 N. Y. 293. Con- tra, a^ to 2d and 3d points, 5 N. Y. 383. Birdseye v. Ray, 4 Hill 158. Appiemed, 5 Den. 619. Birmingham v. Empire Fire Ins. Co., 42 Barb. 457, 459. Reviewed, 53 Md. 286. Bisbey v. Shaw, 12 N. Y. Q7. Fol- lowed, 84 How. Pr. 488, 490. See 13 How. Pr. 97, 100. Bishop V. Barton, 5 Thomp. & C. 6. Af- firmed, 64 N. Y. 637. Bishop V. Bishop, 11 N. Y. 123. Dis- tinguished, 1 Lans. 219. Bishop V. Garcia, 14 Abb. Pr., n. s., 69, 70. Distinguished, 6 Fed. Rep. 220. Bissell V. Balcom, 39 IT. Y. 284. Com- mented ON, 45 N. Y. 142, 151. BisseU V. Kellogg, 60 Barb. 617. Dis- tinguished, 60 N. Y. 21. Bissell V. Michigan Southern, See, R. R. Co., 22 N. Y. 258, 305. Approved, 24 Hun 508. Distinguished, 91 Pa. St. 377. Followed, 40 N. Y. 168, 172. Bissell V. New York Central B. R. Co., 29 Barb. 602. Reversed, 25 N. Y. 442. Bissell V. New York Central R. R. Co., 25 N. Y. 442. Disapproved, 19 Ohio St. 1, 14. DiLTtNOUiSHED, 2 Hun 51 ; 66 N. Y. 317. Bissell V. New York Central, &o., R. R. Co., 67 Barb. 385. Affirmed cU Oen. Term, 67 Barb. 393 n. (a). Bissell V. Pearce, 28 N. Y. 252. Distin- guished, 5 Lans. 372; 65 N. Y. 132. Fol- lowed, 37 Superior 18. Bixby V. Warden, 46 How. Pr. 239. Followed, 14 Hun 629 ; 20 Id. 449. Black V. WTiite, 37 Superior 320. Fol- lowed, 42 Superior 238. Black River, &c., R. R. Co. v. Bar- nard, 9 Hun 104. Followed, _22 Hun 179. Blackmar v. Van Inwager, 5 How. Pr. 367. Contra, 14 How. Pr. 100, 101. Blackstone v. AUemania Fire Ins. Co., 4 Daly 299. Affirmed, 56 N. Y. 104. Blackwell v. Wiswall, 14 How. Pr. 257. Affirmed, 24 Barb. 362. CASES CRITICISED. 307 Blair v. Bartlett, 75 N. Y. 150. Distin- guished, 83 N. Y. 197. Blake v. Ferris, 5 N. Y. 48. Applied, 2 E. D. Smith 255. PoLiiOWED, 38 Superior 197. Reviewed, 17 N. Y. 104. Blake v. Griswold, 1 Hun 332. Af- FiEMED, 68 N. Y. 294. j Blake v. People, 73 N. Y. 586. Ex- plained, 23 Hun 167. 168 ; 24 Hun 482. Blake v. Sands, 3 Bedf. 168. Opposed, 60 How. Pr. 234. Blake v. "Wheeler, 18 Hun 496. Ar- fibmbd, 80 N. Y. 128. Blakeley v. Oalder, 15 N. Y. 617. Dis- -tinguished, 22 Hun 490. Followed, 3 Daly 186 ; 56 N. Y. 229. Blakiston v, Dudley, 5 Duer 373. Fol- lowed, 72 Mo. 526. Blanoliard v. Ely, 21 Wend. 342. Ex- plained, 16 N. Y. 489. See 44 Superior 401. Blanchard v. Strait, 8 How. Pr. 83. 'CoNTBA, 9 How. Pr. 78, 80. Blanohard v. 'Westem Union Teleg. <3o., 67 Barb. 228 ; 3 Thomp. & C. 775. Ee- VEESED, 60 N. Y. 510. Blason v. Brxino, 21 How. Pr. 112. Dis- tinguished, 40 How. Pr. 226, 240. Blauvelt v. "Woodwortli, 31 N. Y. 285. Followed, 67 N. Y. 565. Bleecker v. Smith, 37 How. Pr. 28. CoNTBA, 2 How. Pr. 89, 181. Bleeker v. Johnson, 51 How. Pr. 380. See, 7 Daly 505. Bliss V. La-wrence, 48 How. Pr. 21. Distinguished, 50 How. Pr. 143, 149. Bliss V. Lawrence, 58 N. Y. 442. Ap- proved, 8 Mo. App. 204. Bliss V. Schaub, 48 Barb. 342. Fol- lowed, 2 Thomp. & C. 445. Bliss V. Sheldon, 7 Barb. 152 ; 8 N. Y. 31. Followed, 53 Vt. 56. Bliss V. Shwartz, 65 N. Y. 444. Fol- lowed, 43 Superior 170. Blood V. Humphrey, 17 Barb. 660. Ke- VIEWED, 36 Ark. 367. Bloodgood V. Clark, 4 Paige 574.' Ee- TIEWED, 6 Fed. Eep. 776. Bloodgood V. Mohawk, &o., B. R. Co., 18 Wend. 9. Distinguished, 54 N. Y. 144. Ebviewbd, 7 Bradw. (111.) 467. Bloom V. Burdick, 1 Hill 130. Distin- ■GUISHED, 3 Hun 673, 687. Bloomfleld, «feo.. Gas Light Co. v. Calkins, 1 Thomp. & C. 549. Aefibmed, 62 N. Y. 386. Blossom V. Champion, 28 Barb. 217. Overruled, 37 Barb. 570. Blossom V. Dodd, 43 N. Y. 264. Dis- tinguished, 51 N. Y. 171 ; 54 Id. 515 ; 62 Id. 179. Blossom V. Bstes, 22 Hun 472. Af- firmed, 84 N. Y. 614. Approved, 1 Civ. Pro. 46. Blossom V. Estes, 10 Week. Dig. 428. Affirmed, 12 Week. Dig. 131. Blunt V. Aikin, 15 Wend. 522. Limited, 1 Lans. 293 ; 3 Id. 306 ; 2 N. Y. 181. Blunt V. Q-reenwood, 1 Cow. 15. Over- ruled, 2 How. Pr. 59. Blythenburgh v. Ootheal, 4 N. Y. 418. Applied, 6 How. Pr. 286, 287. Boardman v. Lake Shore, &c., R. R. Co., 84 N. Y. 157. Eeviewed, 24 Hun 362, Boardman v. Lake Shore, &o., R. R. Co., 8 Week. Dig. 347. Affirmed, 12 Week. Dig. 330. Boardman, Matter of, v. Supervisors of Tompkins County, 10 Week. Dig. 526. Eeversed, 12 Week. Dig. 388. Bockes V. Lansing, 74 N. Y. 437. Dis- tinguished, 22 Hun 198. Bodine v. Exchange Fire Ins. Co., 51 N. Y. 123. Followed, 68 111. 463, 469. Boese V. Locke, 53 How. Pr . 148. Af- firmed, 17 Hun 270. Bogart V. Perry, 1 Johns. Ch. 52. Af- firmed, 17 Johns. 351. Bogart V. Vermilyea, 1 Code, n. s., 212. Affirmed, 10 N. Y. 447. Bogart V. Morse, 1 N. Y. 377. Fol- lowed, 42 Superior 446. Bohnet v. Lithauer, 7 Hun 238. Ap- peal DISMISSED, 66 N. Y. 645. Boington v. Lapham, 14 How. Pr. 360. Approved, 15 How. Pr. 565, 566. Boisaubin v. Reed, 2 Keyes 323. Ap- proved, 82 N. Y. 482. Bokel V. Bokel, 3 Edw. 376. Distin- guished, 61 N. Y. 406. Bolen V. Crosby, 49 N. Y. 183. Distin- guished, 4 Hun 614, 615, 616. Followed, 1 Thomp. & C. 143. Boiler V. Mayor, &c., of New York, 40 Superior 523. Overruled in part, 69 N. Y. 143. BoUes V. Duff, 55 Barb. 313. Contra, 56 Barb. 567. Bolton V. Jacks, 6 Eobt. 166, 228. Criti- cised, 63 N. Y. 75, 469. Distinguished, 22 Hun 407. Followed, 40 Superior 523. Ee- viewed, 4 Eedf. 202. Bolton V. Taylor, 18 Abb. Pr. 385. Dis- approved, 5 Hun 594. Followed, 1 Bann. & A. (U. S.) Pat. Cas. 628. Bolton V. Taylor, 3 Eobt. 647. Fol- lowed vmmUingly, 46 Superior 361. Contra, 5 Hun 594. Bommer v. American Spiral Spring Butt, &c., Co., 44 Superior 454. Affirmed, 81 N. Y. 468. 308 CASES CRITICISED. Bonard's Will, 16 Abb. Pr., n. s., 128. Distinguished, 22 Hun 252. Bond V. McNiff, 38 Superior 83. Ar- riBMED, 41 Superior 543. Bond V. "^Ulett, 29 How. Pr. 47 ; 31 N. Y. 102. DlSTIHaUISHED AND LIMITED, 54 N. Y. 107. Bonesteel v. Flack, 41 Barb. 435. Dis- tinguished, 9 Hun 655. Bonesteel v. Lynda, 8 How. Pr. 226. DisTXNGUiSHED, 5 Daly 413. Bonesteel v. Lynde, 8 How. Pr. 352. See 13 How. Pr. 542, 544. Bonito V. Mosquera, 2 Bosw. 401. Con- sidered OVERETJI,ED, 10 BoSW. 511. OtER- EULED, 24 N. Y. 530, 535. Bonnell v. Griswold, 68 N. Y. 294. Further appeai,, 80 N. Y. 128. Bonnell v. Griswold, 80 N. Y. 128. Followed, 80 N. Y. 631. Bonnell v. 'Wlieeler, 18 Hun 496. See 80 N. Y. 128. Bonynge v. Field, 44 Superior 581. Af- firmed, 81 N. Y. 159. Bonynge v. 'Waterbury, 12 Hun 534. Followed, 12 Hun 660, 661 ; 44 Superior 581. Bookstaver v. Glenny, 3 Thomp. & C. 248. Considered overruled, 60 N. Y. 146. Bookstaver v. Jayne, 60 N. Y. 146. Distinguished, 22 Hun 244. Boomer v. Koon, 6 Hun 645. Conflicts with 6 Thomp. & C. 645. Followed, 7 Hun 484. Eeconciled, 56 How. Pr. 156. See 74 N. Y. 307. Boomer v. Koon, 6 Thomp. & C. 645. See 56 How. Pr. 156. Boone V. Citizens' Saving Bank, 21 Hun 235. Keveesed, 84 N. Y. 83. Boorman v. Jenkins, 12 Wend. 566. Followed, 38 Superior 180. Booth V. Ammerman, 4 Bradf. 129. Approved, 14 Vr. (N. J.) 45. Booth V. Boston, &o., R. R. Co., 73 N. Y. 38. Followed, 80 N. Y. 46, 52. Booth V. Bunce, 35 Barb. 496. Eeveesed, 24 N. Y. 592. Booth V. Cleveland Rolling Mill Co., 11 Hun 278, 279. Affirmed, 74 N. Y. 215. Booth V. Farmers', &c., Bank, 11 Hun 258. See 50 N. Y. 396. Booth V. Farmers', &o.. Bank, 50 N. Y. 396. Second tkial, 74 N. Y. 228. Booth V. Spuyten Duyvil Rolling Wll Co., 3 Thomp. & 0. 368, 372. Followed, 5 Hun 107. Bork V. People, 16 Hun 476. Affirmed, 83 N. Y. 609. BorsdorfF, Matter of, 17 Abb. Pr. 168, 169. Limited, 53 N. Y. 5. Borst V. Corey, 16 Barb. 136. Affiemedv 15 N. Y. 505. Borstv. Corey, 15 N.Y. 505. Approved, 33 Gratt. (Va.) 196. Borst v. La:ke Shore, &c., R'y Co., 4 Hun 346, 349. Followed, 42 Superior 225. Boston, &o., R. R. Co., Matter of, 53 N. Y. 574. Distinguished, 84 N. Y. 312. Boston, &o., R. R. Co. v. President of Greenbush, 5 Lans. 461. Affirmed, 52 N. Y. 610. Bostwick V. Baltimore and Ohio R. R. Co., 45 N. Y. 712. DiSTiNathBHED, 7 Hun 233, 234. Bostwick V. Beizer, 10 Abb. Pr. 197. See 40 N. Y. 383. Bostwick V. Burnett, 11 Hun 301. Con- tra, 6 Hill 9. Criticised, 55 How. Pr. 331. Bostwick V. Goetzel, 57 N. Y. 582, 585. Followed, 22 Hun 492. Bostwick V. Menck, 8 Abb. Pr., n. s., 169. Reversed, 4 Daly 68. > Bostwick V. Tioga R. R. Co., 17 How. Pr. 456. Followed, 35 Superior 214. Bosworth V. Vandewalkfer, 53 N. Y. 597. DiSTiNGUiSHEn, 1 Civ. Pro. 152, 156. Explained, 61 How. Pr. 151 ; 24 Hun 203. Bottsford V. McLean, 42 Barb. 445. Af- firmed, 6 Alb. L. J. 196. Bottsford V. McLean, 45 Barb. 478 ; 48 N. Y. 343. Followed, 2 Thomp. & C. 414. Bouchaud v. Dias, 10 Paige 445. Ee- veesed, How. App. Cas. 509 ; 1 N. Y. 201. Boughton V. Bruce, 20 Wend. 234, 235. Commented on, 5 Den. 242. Boutel V. Owens, 2 Sandf. 654. Lim- ited, 4Sandf. 684. Bouton V. Bouton, 40 How. Pr. 217. Ee- veesed, 42 How. Pr. 11. Bowen v. Bradley, 9 Abb. Pr., n. s., 395. Disapproved, 58 How. Pr. 24, 30. 37 n. Dis- tinguished, 7 Abb. N. Cas. 66, 76. Bowen V. Lease, 5 Hill 221, 225. Eb- VIEWED, 9 Abb. N. Cas. 433. Bowery Extension Case, 2 Abb. Pr. 368. Contra, 5 Abb. Pr. 272 ; 61 Barb. 45 j 4 Lans. 467. Bowery Nat. Bank v. Duryea, 54 How. Pr. 450. Eeversed, 55 How. Pr. 88 ; 74 N. Y. 491. Contra, 55 How. Pr. 1. Ceiticised, 54 Id. 509, 519. Bowery Nat. Bank v. Duryea, 55 How. Pr. 88. Affiembd, 56 How. Pr. 42 ; 74 N. Y. 491. Distinguished, 18 Hun 346. Bowery Savings Bank v. Richards, 3 Hun 366 ; 6 Thomp. & C. 59. Appeal dis- missed, 62 N. Y. 631. Bowles V. Van Home, 11 Abb. Pr. 84 ^ 19 How. Pr., 346. Overruled, 14 Abb. Pr.^ N. s., 47 n. CASES CRITICISED. 309 Bowman v. Agricultural Ins. Co., 2 Thomp. & C. 261. Affirmed, 59 N. Y. 521. Bovmian v. De Peyster, 2 Daly 203. FoiiLO-WED, 39 Superior 277. Contra, 27 How. Pr. 179. Bowman v. Ely, 2 Wend. 250. Ex- plained, 1 Hill 179. Bowman v. Tallman, 27 How. Pr. 212 ; 2 Bobt. 385. Affibmed, 3 Abb. App. Dec. 182 n. ; 40 How. Pr. 1 ; 41 N. Y. 619. Bowman v. Teall, 23 Wend. 306. Dis- TINGDISHED, 80 JST. Y. 362. Bowman v. Troy, &c., R. R. Co., 37 Barb. 516. DiSTiNGinsHED, 1 Hun 378, 379 ; 3 Thomp. & C. 538. Bowne V. Mellor, 6 HUl 496. Followed, 17 Hun 499. Bowne V. Potter, 17 Wend. 164. Ovek- RTJLED, 8 Barb. 406. Bowne V. Seymour, 9 Johns. 221. Pol- lowed, 12 Johns. 101. Bowyer v. Schofleld, 1 Abb. App. Dec. 177 ; 2 Keyes 628. Followed, 60 How. Pr. 112. Boyce V. Bates, 8 How. Pr. 495. Con- tra, 6 How. Pr. 121, 265, 311 ; 13 Id. 191. Boyce v. Brown, 7 Barb. 80. Contba, 12 How Pr. 313, 314. Boyd v.Bigelow, 14 How Pr. 511. Fol- lowed, 20 How. Pr. 59, 62. ConTba, 7 How. Pr. 20S| 9 Id. 349. Boyd V. Colt, 20 How Pr. 384. Followed, 42 Superior 11. Boyd V. Dunlap, 1 Johns. Ch. 478. Fol- lowed, 8 Fed. Kep. 504. Kbviewed, 47 Conn. 508. Boyd V. M'Lean, 1 Johns. Ch. 582. Fol- lowed, 64 Me. 26. Boyd V. Schlessinger, 59 N. Y. 301. Distinguished, 80 N. Y. 521. Boyer v. Scjiofleld, 2 Keyes 628. Dis- rriNGUiSHBD, 24 Hun 589. Boynton v. Boynton, 25 How. Pr. 490. Affibmed, 41 N. Y. 619. Brabin v. Hyde, 30 Barb. 265. Kb- VEESED, 32 N. Y. 519. Brace v. Beatty, 5 Abb. Pr. 221. Ke- VEBSED, 7 Abb. Pr. 445. Bracket v. Wilkinson, 13 How. Pr. 102. OvEEBULED, 23 How. Pr. 140, 145. Bradford v. Pox, 16 Abb. Pr. 51; 39 Barb. 203. Revebsed, 38 N. Y. 289. Bradish v. Sclienk, 8 Johns. 151. Ee- viEWED, 39 N. Y. 134. Bradley v. Buffalo, &o., R. R. Co., 34 N. Y. 432. Followed, 5 Hun 344. Bradley v. Burwell, 3 Den. 61. Ap- PEOVED, 84 N. Y. 365. Followed, 22 Hun 460. Bradley v. Mut. Benefit Life Ins. Co., 3 Lans. 341. Eeveesed, 4 N. Y. 422. Bradley v. New York Central R. R. Co., 3 Thomp. & C. 288. Affibmed, 62 N. Y. 99. Bradley v. "Ward, 1 Thomp. & C. 413. Affibmed, 58 N. Y. 401. Bradley v. Wheeler, 4 Eobt. 18. Af- fibmed, 44 N. Y. 495. Bradner v. Faulkner, 12 N. Y. 472. Followed, 2 Eedf. 437. Bradner v. Superintendent of Poor of Orange County, 9 Wend. 433. See 2 How. Pr. 256. Bradshaw v. Callaghan, 5 Johns. 80. Modified, 8 Johns. 558. Bradshaw v. Rogers, 20 Johns. 103 Eevebsed, 20 Johns. 735. Bradstreet v. Ferguson, 17 Wend. 181 Affibmed, 23 Wend. 638. Bradt v. Benedict, 17 N. Y. 93. DiS' TiNGTJisHED, 80 N. Y. 386, 389. Brady, Matter of, 8 Hun 437. Af firmed, 53 How. Pr. 128. Followed, 59 Id, 163. Brady, Matter of, 69 N. Y. 215. Dis TINGUISHED, 23 Hun 586. Brady v. Bissell, 1 Abb. Pr. 76. Ap- PBOVED, 2 Abb. Pr. 444, 445. Brady v. Brundage, 2 Thomp. & C. 621 Appeal dismissed, 59 N. Y. 310. Brady v. Brundage, 59 N. Y. 310, 313 Followed, 82 N. Y. 574. Brady V. Durbrow, 2 E. D. Smith 78- Followed, 3 Hun 59. Brady v. Mayor, &o., of New York, 20 N. Y. 312. Commented on, 3 Eobt. 100, 121. Distinguished, 84 N. Y. 604. Brady v. Supervisors of New York, 2 Sandf. 460. Followed, 13 Kan. 191. Brague v. Lord, 2 Abb. N. Cas. 1. See 51 How. Pr. 103. Brague v. Lord, 41 Superior 193. Fol- lowed, 42 Superior 427. Brahe v. Pythagoras Assoc, 4 Duer 658 ; 11 How. Pr. 44. Ovebeuled, 35 Supe- rior 111. Qualified, 13 Abb. Pr., n. s., 325- 332. Brainard v. Jones, 11 How. Pr. 569. Contba, 33 How. Pr. 80, 81, 82, 83. Branch v. Harrington, 49 How. Pr. 196. Said to be ovebeuled, 60 How. Pr. 79. Brand v. Brand, 49 Barb. 346 ; 33 How. Pr. 167. Eevebsed, 48 N. Y. 675. Brandon v. Avery, 22 N. Y. 469. Dis- tinguished, 40 Barb. 408. Followed, 2 Hun 156. Brandon v. People, 42 N. Y. 265. Dis- tinguished, 8 Hun 562, 564; 76 N. Y. 291. Followed, 50 N. Y. 242. 310 CASES CRITICISED. Brandt, d. Walton, v. Ogden, 3 Cai. 5, 6. See 1 Johns. 156. s Brant, d. Van Oortlandt, v. Dyck- man, 1 Johns. Cas. 275. Applied, 12 Johns. 247. Brasher v. Van Oortlandt, 2 Johns. Ch. 242, 400. Explained, 3 Barb. Ch. 24. Breasted v. Parmers' Loan, &o.. Trust Co., 4 Hill 73 ; 8 N. Y. 299. Distin- guished, 4 Lans. 202 ; 55 N. Y. 173. Brack v. Oole, 4 Saudf. 79. Appbovbd, 39 Conn. 556. Breck v. Smith, 54 Barb. 212. LOWED, 4 Lans. 184. FOL- Breed v. Cook, 15 Johns. 241. 36 How. Pr. 511. Contra, Breese v. Bange, 2 E. D. Smith 474, 475. DlSTLNGtriSHED AND KBVIEWED, 34 Ark. 430. Breese v. United States Teleg. Co., 31 How. Pr. 86. Affirmed, 48 N. Y. 132. Breese v. United States Teleg. Co., 48 N. Y. 132 ; 8 Am. Eep. 526. Eeviewed, 11 Neb. 91. Brehm v. Great Western R'y Co., 34 Barb. 256. Followed, 2 Col. T. 457. Brennan v. Mayor, &o., of New York, 47 How. Pr. 178. Reversed, 62 N. Y. 365. Brennan v. Mayoh &o., of New York, 62 N. Y. 365. Limited, 83 N. Y. 377. Brennan v. Willson, 71 N. Y. 502. Fol- lowed unwillingly, 22 Hun 247, 248. Brett V. Brown, 13 Abb. Pr., n. s., 295. Contra, 7 Abb. Pr., N. s., 70. Brevoort v. Brevoort, 70 N. Y. 136. Distinguished, 22 Hun 490. Brevoort v. Warner, 8 How. Pr. 321. See 13 How. Pr. 542, 545. Brewer v. Isish, 12 How. Pr. 481. Fol- lowed, 13 How. Pr. 149. See 35 Barb. 433. Brewer v. Salisbury, 9 Barb. 511. Dis- approved, 62 Barb. 600. Brewster v. Baker, 16 Barb. 613. Over- ruled, 20 Barb. 364, 370. Brewster v. Bost-wiok, 6 Cow. 34, 37. Followed, 38 Superior 137. Brewster v. City of Syracuse, 19 N. Y. 116. Distinguished, 23 Hun 329. Fol- lowed, 4 Thomp. & C. 378. Brewster v. Hall, 6 Cow. 34, 37. Fol- lowed, 48 How. Pr. 82. Brewster v. Power, 10 Paige 562, 569. Approved, 15 N. Y. 477. Explained, 46 N. Y. 20. Brewster v. Silence, 8 N. Y. 207: 11 Barb. 144. Disapproved, 8 Hun 111. Dis- tinguished, 21 N. Y. 321, 336. Explained, 20 N. Y. 337, 342. Ee-affirmed, 29 Barb. 486. Brewster v. Striker, 2 N. Y. 19. Dis- tinguished, 23 Hun 303 ; 4 Keyes 589. Brick V. Brick, 66 N. Y. 144. Followed, 23 Hun 139, 140. Bridenbeoker v. Lowell, 32 Barb. 9. DiSTrtTGUiSHED, 1 Hun 325, 329 ; 83 N. Y. 86. Bridenbecker v. Mason, 16 How. Pr. 203. See 22 How. Pr. 265, 266. Bridge v. Mason, 45 Barb. 38. Fol- lowed, 1 Hun 612 ; 4 Thomp. &. C. 76. Bridge v. Payson, 5 Sandf. 210. Fol- lowed, 10 How. Pr. 162, 164. Contra, 14 Id. 61, 63. Bridgeport Fire, &c., Ins. Co. v. Wil- son, 7 Bosw. 427. Eeversed, 34 N. Y. 275. Eeviewed, 3 Abb. Pr., n. s., 58. Bridgeport Fire, &o., Ins. Co. v. Wil- son, 34 N. Y. 275, 280. Eeviewed, 8 Mb. App. 31. Bridges v. Canfleld, 2 Edw. 208, 217. Contra, 4 Abb. Pr. 460. Bridges v. Wyokoff, 67 N. Y. 130. Dis- tinguished, 24 Hun 148. Bridgewater Paint Manuf. Co. v. Messmore, 15 How. Pr. 12. Contra, 17 How. Pr. 68. Bridgeford v. Crocker, 3 Thomp. & C. 273. Affirmed, 60 N. Y. 627. Briggs V. Briggs, 20 Barb. 477. Ex- plained, 1 Lans. 488. Briggs V. Davis, 20 Barb. 392. Modified, 20 N. Y. 15. Briggs V. Easterly, 62 Barb. 51. Fol- lowed, 4 Hun 614, 615, 616. Briggs V. New York Central, &c., R. R. Co., Sheld. 402, 433. See 72 N. Y. 26. Briggs V. North British Mercantile Ins. Co., 66 Barb. 325. Affirmed, 53 N. Y. 446. Followed, 66 Barb. 330. Briggs V. Partridge, 64 N. Y. 357, 364. Distinguished, 24 Hun 574. Followed, 8 Abb. N. Cas. 219. Briggs V. Fenuiman, 8 Cow. 387. Dis- tinguished, 43 Superior 495. Eeviewed, 8 Mo. App. 505, 506. Briggs V. Rowe, 4 Keyes 424, 426. Ex- plained, 56 N. Y. 294. Bright V. Judson, 47 Barb. 29. Eet VIEWED, 34 Superior 370. Brill V. Flagler, 23 Wend. 354. Ee- viewed, 16 W. Va. 261. Brill V. Tuttle, 15 Hun 289. Eeveesed, 81 N. Y. 454. Brinckerhoff v. Phelps, 24 Barb. 100. Ee-affiemed, 43 Barb. 469. Brink v. Hanover Fire Ins. Co., 70 N. Y..593. Further appeal, 80 N. Y. 108. Explained, Id. 111. Brink v. Hanover Fire Ins: Co., 80 N. Y. 108. Distinguished, 83 N. Y. 173. Brink v. Republic Fire Ins. Co., 2 Thomp. & C. 550. Appeal dismissed, 56 N. Y. 679. CASES CRITICISED. 311 Brinkerhoff v. Brown, 6 Johns. Ch. 139. Applied, 4 Cow. 682. Eeviewed akd fol- lowed, 8 Fed. Bep. 771, 772. Brinkerhoof v. Remsen, 8 Paige 488, 496. Reviewed, 4 Eedf. 260, 262. Brinkley v. Brinkley, 47 N. Y. 40, 49. Approved, 24 Hun 248. Followed, 1 Id. 296. Brinkley v. Brinkley, 2 Thomp. & C. 501. Sustained and appeal dismissed, 56 N. Y. 192. BriBbane v. Macomber, 56 Barb. 375. Affirmed, 6 Alb. L. J. 196. Brisbane v. Pratt, 4 Den. 63. Ovbr- RULED, 17 Barb. 530. British Commercial Life Ins. Oo. v. eomm'rs of Taxes, &c., 1 Keyes 303. Followed, 80 N. Y.. 259. Brittan v. Peabody, 4 Hill 61, 66. Ap- proved, 23 Hun 407. Britton v. Lorenz, 3 Daly 23. Af- firmed, 45 N. Y. 51. Brizsee v. Maybee, 21 Wend. 144. Fol- lowed, 4 Lans. 270. Broadhead v. Lycoming Fife Ins. Co., 14 Hun 452. Distinguished, 23 Hun 401. Brockway v. Btimap, 12 Barb. 347. Approved, 50 N. H. 489, 490. Contra, 11 How. Pr. 106, 108. Brockway v. Bumap, 16 Barb. 309. Followed, 11 How. Pr. 106, 108. Broderiok v. Smith, 15 How. Pr. 434. Explained, 2» Barb. 29. Bronner v. Frauenthal, 37 N. Y. 166. Followed, 38 Superior 197. Bronson's "Will, 1 Tuck. 464, 467. Fol- lowed, 2 Hun 555 ; 5 Thomp. & C. 101. Bronson v. Bron^on, 48 How. Pr. 481. Distinguished, 59 How. Pr. 506. Bronson v. Fitzhugh, 1 Hill 183. Ap- proved, 50 Wis. 146. Bronson V. Wiman, 10 Barb. 406. Re- viewed, 62 Barb. 529. Brooklyn, &c., R. R. Co., Matter of, 19 Hun 314. Affirmed, 81 N. Y. 69. Brooklyn, &o., R. R. Co., Matter of, 75 N. Y. 335. Distinguished, 9 Abb. N. Cas. 204; 60 How. Pr 418. Brooklyn, &c., R. R. Oo. v. Brooklsm City R. R. Co., 32 Barb. 358. Explained, 35 Barb. 364. Brooklyn, City of, v. Brooklyn City R. R. Co., 8 Abb. Pr., N. s., 356. Affirmed, 47 N. Y. 475. . Brooklyn, City of, v. Fulton Munici- pal G-as Co., 7 Abb. N. Cas. 19. Distin- guished, 7 Abb. N. Casi 23. Brooklyn Trust Co. v. Bulmer, 49 N. Y. 84. FOLLOWED,40 Wis. 571, 574. Brooklyn White Lead Co. v. Maeury, 25 Barb. 416. Followed, 35 How. Pr. 108, .113. Brookman v. Hamill, 54 Barb. 209. Affirmed, 43 N. Y. 554. Brookman v. Hamill, 43 N. Y. 554. Distinguished, 7 Fed. Rep. 732. Motion FOR RE-ARGUMENT DENIED, 46 N. Y. 636. Sustained, 51 N. Y. 82. Brookman v. Metcalf, 34 How. Pr. 429. Disapproved, 42 N. Y. 455. Brooks V. Curtis, 4 Lans. 283. Af- firmed, 50 N. Y. 639. Brooks V. Curtis, 50 N. Y. 639. Ex- plained, 23 Hun 675 n., 676 n., 682 n. Fol- lowed, Id. 685. Brooks V. Hanford, 15 Abb. Pr. 342. Overruled, 66 Barb. 341. Brooks V. Schwerin, 54 N. Y. 343. Criticised, 6 Thomp. & C. 465. Distin- guished, 64 N. Y. 593. Broome v. Taylor, 13 Hun 341. Re- versed, 19 Alb. L. J. 337 ; 76 N. Y. 564. Broome County Bank v. Lewis, 18 Wend. 565, 566. Followed, 48 How. Pr. 82 j 38 Superior 137. Brotherson v. Consalus, 26 How. Pr. 213. Affirmed, 6 Alb. L. J. 196. Brouwer v. Harbeck, 9 N. Y. 589. Distinguished, 59 N. Y. 10. Brow^er v. Mayor, &c., of New York, 3 Barb. 254. Explained, 7 Abb. Pr. 126. Brown v. Babcock, 3 How. Pr. 305. Followed, 13 How. Pr. 466, 468, 469. Brown v. Bowen, 30 N. Y. 519, 541. Distinguished, 84 N. Y. 39. Brown v. Brown, 34 Barb. 533. Af- firmed, 6 Alb. L. J. 167. Brown v. Brown, 53 Barb. 217. Af- firmed, 6 Alb. L. J. 167. Bro"wn V. Brown, 6' How. Pr. 320. See 7 How. Pr. 404. Brown v. Bro'wn, 31 How. Pr. 481. Af- firmed, 6 Alb. L. J. 167. Brown v. Brown, 1 Hun 443. See 2 Hua 677. Brown v. Buffalo, &c., R. R. Co., 22 N. Y. 191. Disapproved, 55 Ala. 387, 403. Fol- lowed, 7 Fed. Rep. 704. Overruled, 14 Abb. Pr., N.S., 34; 64 N. Y. 531. BrO'wn v. Cayuga, &c., R. R. Co., 12 N. Y. 486. Followed, 80 N. Y. 216. Brown V. Cherry, 59 Barb. 628. Re- versed, 57 N. Y. 645. Brown v. Clifford, 7 Lana. 46. Appeal dismissed, 54 N. Y. 636. Brown v. Combs, 36 Superior 572. See 63 N. Y. 598. Brown v. Crowl, 5 Wend. 298. Distin- guished, 24 Hun 82. Brown V. Curtiss, 2 N. Y. 225. Ex- plained, 20 N. Y. 338. Followed, 80 N. Y. 271. Re-asserted, 6 Lans. 234. 312 CASES CRITICISED. Brown v. Feeter, 7 Wend. 301. Dibtin- oxriSHED, 83 N. Y. 526. Brown v. Q-OOdwin, 1 Abb. N. Cas. 452. Applied, 56 How. Pr. 519, 525. Brown v. Kimball, 25 Wend. 259. Limi- ted, 7 HiU 478. Brown v. Leavitt, 31 N. Y. 113. Dis- tinguished, 81 N. Y. 223, 224, 225. Brown V. Leigh, 50 N. Y. 427. Ex- plained on rehearing, 52 N. Y. 78. Brown v. Marrigold, 50 How. Pr. 248. DiSAPPKOVED, 9 Hun 567, 568. Brown v. Mayor, &c., of New York, 5 Daly 481. Aeeibmed, 66 N. Y. 385. Brown v. Mayor, &c., of New York, I Hun 30. See 63 N. Y. 239. Brown V. Mayor, &o., of New York, II Hun 21. Followed, 23 Hun 285. Brown v. Montgomery, 20 N. Y. 287. Distinguished, 81 N. Y. 109. Brown v. Mott, 7 Johns. 361. Criticised, 41 N. Y. 283. Brown V. New York Central R. R. Co., 32 N. Y. 597. Approved, 28 Wis. 487, 495. Criticised, 66 N. Y. 14. Brown v. Nichols, 42 N. Y. 26, 42. Criticised, 23 Hun 229. Distinguished, 1-2 Hun 444. Explained, 65 N. Y. 186. Brown v. OrviB, 6 How. Pr. 376. Ap- PBOVJiu, 2 Kobt. 715. Followed, 6 How. Pr. 401. Contra, 10 Id. 79, 81. Brown v. Penfleld, 36 N. Y. 475. Ap- proved, 45 N. Y. 727. Brown v. Pentz, 11 Leg. Obs. 24. Ee- VERSED, 1 Abb. App. Dec. 227. Brown v. Bichardeon, 4 Eobt. 603. Contra, 7 Eobt. 57. Brown v. St. Nicholas Ins. Co., 34 Su- perior 231. Afeibmed, 61 N. Y. 332. Brown V. Smith, 24 Barb. 419. In POINT, 35 N. Y. 243. Brown v. Smith, 13 Hun 408. Ar- FIBMED, 80 N. Y. 650. Brown v. Town of Canton, 4 Lans. 409. Eevebsed, 6 Alb. L. J. 167. Brown v. Treat, 1 Hill 225. Criticised, 7 Hill 182. Distinguished, 22 Hun 385. Brown v. Volkening, 64 N. Y. 76. Criticised, 23 Hun 137. Brown v. Weber, 38 N. Y. 187. Fol- lowed, 2 Thomp. & C. 418. Brown v "WindmuUer, 36 Superior 75. Appeal dismissed, 53 N. Y. 642. Brown's "Water Furnace Co. v. French, 34 How. Pr. 94. Affirmed, 6 Alb. L. J. 196. Browne v. Bradley, 5 Abb. Pr. 141. Dis- tinguished, 24 Hun 579, 580, 581. Brownell v. Akin, 6 Hun 378. Appeal dismissed, 66 N. Y. 617. Explained, 24 Hun 112. Brownell v. Carnley, 3 Duer 9. Cited, 54 Tex. 600. Brownell v. Curtis, 10 Paige 210. Dis- approved, 6 Stew. (N. J.) 298. Brownell v. Winnie, 29 N. Y. 408. Dis- approved, 21 Ohio St. 171. Distinguished, 1 Hun 506. Browning v. Home Ins. Co. of Colum- bus, 71 N. Y. 508. Followed, 83 N. Y. 140. Bruce v. Burr, 67 N. Y. 237. Distin- guished, 50 Wis. 278. Followed, 80 N. Y. 271. Bruce v. Davenport, 36 Barb. 346. Re- versed, 1 Abb. App. Dec. 233; 5 Abb. Pr., N. s., 185 ; 3 Keyes 472. Bruen v. Marquand, 17 Johns. 58. Fol- lowed, 43 Md. 44. Bruff V. Mali, 36 N. Y. 200. Followed, 83 N. Y. 34. Brummer v. Cohen, 6 Abb. N. Cas. 409 ; 57 How. Pr. 386. Affirmed, 58 How. Pr. 239. Brummer v. Cohn, 58 How. Pr. 239. Followed, 46 Superior 132, 133. Brush V. Lee, 18 Abb. Pr. 398. Af- firmed, 36 N. Y. 49. Bryan v. Baldwin, 7 Lans. 174. Af- firmed, 52 N. Y. 232. Bryan v. Brennon, 7 How. Pr. 359. Disapproved, 54 Iowa 548. Bryan v. Butts, 27 Barb. 503. Fol- lowed, 7 Hun 380, 384, 6. Buchan v. Sumner, 2 Barb. Ch. 165. Ap- proved, 74 Pa. St. 397. Distinguished, 1 Thomp. & C. 515. Buckbee v. United States Ins., &o:, Co., 18 Barb. 541. Distinguished, 1 Flipp. (U. S.) 336. Buckley v. Bentley, 48 Barb. 283. Fol- lowed, 36 Superior 234. Buckley v. Leonard, 4 Den. 500. Ee- viEWBD, 81J Pa. St. 255. Bucklin v. Bucklin, 1 Abb. App. Dec. 242. Followed, 61 How. Pr. 180. Buckman v. Carnley, 9 How. Pr. 180. See 9 How. Pr. 188, 189. Buel V. Boughton, 2 Den. 91. Fol- lowed, 45 Superior 434. Buel V. People, 18 Hun 487. Followed, 80 N. Y. 515. Buess V. Eoch, 52 How. Pr. 478,479. Affirmed, 53 How. Pr. 92. Buffalo, &c., R. R. Co. v. Reynolds, 6 How. Pr. 96. Followed, 4 Hun 636. Buffalo City Bank v. North Western Ins. Co., 30 N. Y. 251. Followed, 10 Hun 167, 170. CASES CRITICISED. 313 Buffalo Oity Cemetery v. City of Buffalo, 46 N. Y. 506. Distinguished, 49 How. Pr. 208, 216. Buffalo, City of, Matter of, 68 N. Y.' 167. DisTiNomsHED, 84 N. Y. 312. Buffalo Savings Bank v. Newton, 23 N. Y. 160. Followed, 37 Wis. 87, 89. Buffalo, Village of, v. 'Webster, 10 Wend. 100. Approved, 82 N. Y. 318, 323. Bulger V. Albany Railway, 42 N. Y. 459. Followed, 1 (Jinc. (Ohio) 180, 181. Bullis V. Montgomery, 3 Lans. 255. Afpirmed, in part, 50 N. Y. 352. Bullis V. Montgomery, 50 N. Y. 352. Distinguished, 9 Hun 686, 689. Bullock V. Babcook, 3 Wend. 391. Dis- rriNGUiSHED, 60 How. Pr. 450. Bullock V. Boyd, 2 Edw. 293. Distin- ■GuiSHED, 65 N. Y. 497. Bullymore v. Cooper, 2 Lans. 71, 78. Distinguished, 24 Hun 579, 580. Bullymore v. Cooper, 46 N. Y. 236. Distinguished, 53 N. Y. 35 ; 84 N. Y. 417. Followed, 24 Hun 578, 580. Bumpus V. Platner, 1 Johns. Ch. 213. Kbviewed, 52 Wis. 515. Bunge V. Koop, 5 Robt. 1. ArmtMED, 48 N. Y. 225. Followed, 34 Superior 344. Bunge V. Koop, 48 JST. Y. 225. Criti- cised, 1 Thomp. & C. 654. Distinguished, 55 N. Y. 71. Bunn V. Riker, 4 Johns. 426. Approved, 8 Johns. 454; 11 Id. 28. Bunn V. Vaughan, 3 Keyes 345. Dis TlNGUiSHED, 60 Barb. 9. Bunting v. Brown, 13 Johns. 425, Changed by statute, 1 Hill 373. Burbank v. Reed, 11 Week. Dig. 576, Followed, 1 Civ. Pro. 42. Burbridge v. Marcy, 54 How. Pr. 446, Followed, 55 How. Pr. 333, 335. Burdell v. Burdell, 54 How. Pr. 91. Dis- tinguished, 22 Hun 198. Burdett v. Lowe, 22 Hun 588. Ee- VERSED, 24 Hun V. Burdett V. Lowe, 11 Week. Dig. 323, Reversed, 12 Week. Dig. 135. Burdick v. McVanner, 2 Den. 170, Followed, 43 Superior 335. Burgart v. Stork, 12 How. Pr. 559, Contra, 11 How. Pr. 403 ; 12 Id. 73. Burgher v. Columbian Ins. Co. of Phila. Dissenting opinion affirmed, 1 Bright. Dig. XXII. Burhana v. Tibbitts, 7 How. Pr. 21. Followed, 40 Superior 271. Burke, Matter of, 4 Thomp. & C. 653; 2 , Hun 281. Modified, 62 N. Y. 224. Burke, Matter of, 62 N. Y. 224. Distin- guished, 81 N. Y. 141. Burke v. Oandee, 63 Barb. 552. Fol- lowed, 61 How. Pr. 307 ; 1 av. Pro. 198. Burke v. Nichols, 34 Barb. 430. Af- firmed, 31 How. Pr. 640. Burke v. Valentine, 5 Abb. Pr., n. s., 164 ; 52 Barb. 412. Affirmed, 6 Alb. L. J. 167. Burkitt V. Harper, 14 Hun 581 ; 79 N. Y. 273. Followed, 24 Hun 540. Burkie v. Luce, 6 Hill 558. Affirmed, How. App. Cas. 330. Burkie v. Luce, 1 N. Y. 163. Distin- guished, 23 Hun 488. Burleigh v. Center, 41 Superior 441. Appeal dismissed, 74 N. Y. 608. Burmeister, Matter of, 9 Hun 613. See 76 JSr. Y. 174. Burmeister, Matter of, 12 Hun 478. Reversed, 66 How. Pr. 416. Burmeister, Matter of, 76 N. Y. 174. Distinguished, 81 H^. Y. 141. Biornell v. New York Central R. R. Co., 45 N. Y. 184. Distinguished, 53 N. Y. 370. Followed, 36 Superior 32. Reviewed, 35 Id. 182. See 51 N. Y. 186. Burnett v. Snyder, 43 Superior 238. Distinguished, 45 Superior 577. Burnett v. Snyder, 45 Superior 577. Re- versed, 81 N. Y. 550. Burnett v. Snyder, 45 Superior 582. Re- versed, 81 N. Y. 651. Bumham v. Onderdonk, 41 N. Y. 425. Explained, 2 Hun 620, 622, 625. Bumham v. Wilbur, 7 Bosw. 169, 190. Affirmed, 3 Abb. App. Deo. 321. Burns v. Erben, 40 N. Y. 463. Fol- lowed, 39 Superior 384. Burr V. American Spiral Spring Butt, Sso., Co., 17 Hun 188. Affirmed, 8 Abb. N. Oas. 403; 81 N. Y. 175. Burr V. Beers, 24 N. Y. 178. Followed, 47 N. Y. 237 ; 82 N. Y. 387. Burr V. Mills, 21 Wend. 290, 292. Crit- icised, 53 Md. 271. Burrv. Stenton, 52 Barb. 377. Distin- guished, 2 Lans. 238. Burr V. Van Buskirk, 3 Cow. 263. Ex- plained, 6 Hill 20. Overruled, 5 Cow. 408. Burrall v. Bashwick R. R. Co., 75 N. Y. 211, 216. Explained, 9 Abb. N. Cas. 423. Burrall v. Jewett, 2 Paige 134. Distin- guished, 57 N. Y. 124. Btirrill v. Chenango County Mut. Ins. Co., 1 Edm. Sel. Cas. 233. Reviewed, 11 Phil. (Pa.) 357. Contra, 6 N. Y. 153. ' Burroughs v. Bloomer, 5 Den. 532. Ap- proved, 10 How. Pr. 516, 527. Criticised, 26 Barb. 208. Burroughs v. Brie R'y Co., 3 Thomp. & C. 44. Reversed, 63 N. Y. 556. 314 CASES CEITICISED. Burt V. Burt, 41 N. Y. 46. Distin- gtjisHed, 60 How. Pr. 514. Burt V. De-wey, 40 N. Y. 283. Distin- GTIISHED AND APPBOVED, 45 N. Y. 497, 499. Burt V. Butcher, 34 N. Y. 493. -See 51 N. Y. 76. Burtis V. Burtis, Hopk. 557. Kevibwed, 8 Abb. N. C'as. 374. BurtiB V. Doughty, 3 Bradf. 287. Dis- TiNGmsHED, 3 Eedf. 148, 150. Burton v. Burton, 26 How. Pr. 474. Ee- VEBSEp, 1 Abb. App. Dec. 271. Burton v. Burton, 1 Keyes 359, 371. Followed, 63 Ga. 465. Burwell v. Jackson, 9 N. Y. 535. Ap- PBOVED, 6 Oreg. 51, 53. Distinguished, 53 N. Y. 398. Followed, 62 Barb. 591 ; 38 Su- perior 450. Bush V. Cole, 28 N. Y. 269. Distin- guished, 1 Hun 565. Bush V. Dennison, 14 How. Pr. 307. CONTEA, 17 How. Pr. 255. Bush V. Hicks, 2 Thomp. & C. 356. Af- FiEMBD, 60 N. Y. 298. Bush V. Lathrop, 22 N. Y. 535. Distin- guished, 64 N. Y. 162. Overruled, (?) 22 Hon 345, 346, 347 ; 71 Mo. 198. Bush V. Prosser, 13 Barb. 221. Ap- proved, 10 How. Pr. 131. Followed, Id. 81. Bush V. Prosser, 11 N. Y. 347. Doubted, 2 Eobt. 715. Followed, 13 How. Pr. 99 ; 34 Id. 488, 490 ; 81 N. Y. 249. Bush V. Trustees of Geneva, 3 Thomp. & C. 409. Followed, 74 Ind. 391. Bush V. Westchester Fire Ins. Co., 2 Thomp. & C. 629. Beversed, 63 N. Y. 531. Bushnell v. Bushnell, 15 Barb. 399; 7 How. Pr. 389. Followed, 4 Lans. 184. Con- TBA, 25 How. Pr. 182, 187. Butchers', fee. Bank v. Jacobson, 15 Abb. Pr. 219 ; 24 How. Pr. 204. Affirmed, 33 How. Pr. 620. Butchers', &c., Bank of Providence, V. Jacobson, 22 How. Pr. 470. Followed, 49 How. Pr. 89. Contra, 7 Id. 354, 396; 19 Id. 450. . Butler V. Benson, 1 Barb. 526. Modi- fied, 1 Hun 344, 348. Butler V. Evening Mail Assoc, 34 Su- perior 58. Eeveesed, 61 N. Y\ 634. Butler V. Galletti, 21 How. Pr. 465. Ex- plained, 38 Superior 158. Butler V. Mason, 16 How. Pr. 546. Ap- pboved, 23 How. Pr^ 140, 144. Butler V. New York, &c., R. B. Co., Supreme Ct., MSS. Approved, 9 Abb. N. Cas. 273. Butler V. Palmer, 1 Hill 324. Criticised, 4 Barb. 64. Explained, 1 Flipp. (U. S ) 534. Eeviewed, 54 Cal. 323, 325. Butler V. Van Wyck, 1 Hill 438. Com- mented ON, 6 Hill 433. Butterfleld v. Badde, 38 Superior 44. Appeal dismissed, 58 N. Y. 489. Followed, 40 Superior 289. -See Id. 169 ; 41 Id. 181. Butterfleld v. Radde, 40 Superior 169, 172. Followed, 42 Superior 124. See 58 N. Y.489. Butterworth v. Gould, 41 N. Y. 450. Distinguished, 62 S. Y. 445. Followed, 5 Lans. 311; 88 N. Y. 44. Butts V. Genung, 5 Paige 254, 259. Ex- plained, 24 Hun 276. Bylandt v. Comstock, 25 How. Pr. 429. Criticised, 84 N. Y. 416. Byrnes v. City of Oohoes, 5 Hun 602 ; 67 N. Y. 204. Followed, 22 Hun 163. Byxbie v. Wood, 24 N. Y. 607. Ap- proved, 33 Superior 141. Followed, 9 Abb. N. Cas. 6 ; 83 N. Y. 250. c. Oadwell v. Manning, 24 How. Pr. 33. Approved, 29 How. Pr. 379, 381. Cady V. Fairchild, 18 Johns. 129. Fol- lowed, 32 N. Y. 351. Cagwin v. Town of Hancock, 22 Hun 201. Ebversed, 84 N. Y. 532. Oagwin v. Town of Hancock, 10 Week. Dig. 496. Ebversed, 12 Week. Dig. 96. Gaboon v. Bank of XTtica, 4 How. Pr. 422. Affirmed, 7 How. Pr. 134. Cairnes v. Bleecker, 12 Johns. 300. Dis- tinguished, 68 N. Y. 527. Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282. Distinguished, 56 N. Y. 299. Calhoun v. Lee, 29 How. Pr. 1. Contba, 28 How. Pr. 87, 405. Calkins v. Brand, 5 How. Pr. 395. Con- tea, 9 How. Pr. 465. Calkins v. Palk, 39 Barb. 620. Af- firmed, 38 How. Pr. 62 ; 41 N. Y. 619. Calkins v. Long, 22 Barb. 97, 99. Fol- lowed, 13 Vr. (N. J.) 523. Calkins v. Williams, 5 How. Pr. 393. Contra, 6 How. Pr. 172; 9 Id. 465. CASES CRITICISED. 315 Oallahan v. Mayor, &c., of New York, 6 Daly 230. Affirmed, 66 N. Y. 656. Callahan v. Mayor, &o., of New York, 66 N. Y. 656. Cited, 46 Superior 394. Oallahan v. Van Vleok, 36 Barb. 324. Affirmed, 41 N. Y. 619. Calvo V. Davies, 8 Hun 222 ; 73 N. Y. 211. Followed, 83 N. Y. 147. Keviewed, 8 Mo. App. 22. Camp V. Camp, 2 Eedf. 141. Beversbd, 18 Hun 217. Camp V. Chamberlain, 5 Den. 198. Re- viewed, 42 Mich. 80. Campbell v. Adams, 38 Barb. 132. Overruled, 44 Barb. 117 n. Campbell v. Arnold, 1 Johns. 511, 512. Followed, 12 Johna. 184. Campbell v. Bruen, 1 Bradf. 225. See 3 Redf. 538. Campbell v. Campbell, 54 How. Pr. 115. Affirmed, 12 Hun 636. Campbell v. Consalus, 25 N. Y. 613. Followed, 22 Hun 326. Campbell v. Oothran, 65 Barb. 534 ; 1 Thomp. & C. 70. Affirmed, 56 N. Y. 279. Campbell v. Oothran, 56 N. Y. 279. Followed, 23 Hun 39. Campbell v. Evans, 54 Barb. 566. See 41How. Pr. 193, 197. CampbeU v. Ewalt, 7 How. Pr. 399. See 6 How. Pr. 110. Campbell v. Foster, 35 N. Y. 361. Fol- lowed, 5 Hun 427 ; 42 Superior 150. CampbeU v. Hoge, 4 Hun 672. Fol- lowed, 6 Hun 523. Campbell v. Johnston, 1 Sandf. Ch. 148. Explained, 50 N. Y. 436. Campbell v. McCormick, 1 How. Pr. 251. See 2 How. Pr. 272. Campbell v. Mesier, 4 Johns. Ch. 334. Doubted. 15 N. Y. 601. Campbell v. Searaan, 2 Thomp. & C. 231. Affibmed, 63 N. Y. 568. Campbell v. Seaman, 63 N. Y. 568. Followed, 22 Hun 162. Campbell v. Smith, 71 N. Y. 26. Dis- tinguished, 82 N. Y. 435. Followed, 83 Id. 154. Campbell v. Stakes, 2 Wend. 137. Ap- proved, 1 Hun 580. Campbell v. Tate, 7 Lans. 370. Fol- lowed, 2 Hun 449 ; 5 Thomp. & C. 54. Over- ruled, 64 N. Y. 461. Campbell v. Vedder, 3 N. Y. 174. Fol- lowed, 45 Superior 404. Campbell v. "Woodworth, 20 N. Y. 499. Distinguished, 81 N. Y. 624. Canaday v. Stiger, 35 Superior 423. Followed, 40 Superior 255. Canal and "Walker Streets, Matter of, 12 N. Y. 406, 411. Contra, 61 Barb. 45 1 4 Lans. 467. Canal Bank v. Bank of Albany, 1 Hill 287. Approved, 59 Barb. 554 ; 1 Lans. 19 ; 40 N. Y. 396. Followed, 75 111. 644. Canandaigua, , 92 Pa. St. 32. Carson v. Murray, 3 Paige 483, Fol- lowed, 54 How. Pr. 409, 411. Carter v. Baloh, 18 Barb. 608. Distin- guished, 23 Hun 218, 221. Carter v. Clark, 2 Sweeny 189. Ovee- EULED, 14 Abb. Pr., N. s., 47 n. Carter v. Dolby, 2 Hun 523. Apeibmed, «3 N. Y. 631. Carter v. Hammett, 18 Barb. 608. Dis- tinguished, 23 Hun 221. Carter v. People, 2 Hill 317. Oveb- BULED, 7 N. Y. 378 ; 1 Park. Cr. 308. Carter v. Simpson, 7 Johns. 535. Fol- lowed, 12 Johns. 215. Carter v. Werner, 27 How. Pr. 385. DiSAPPBOVED, 19 Abb. Pr. 165, 166 ; 48 Barb. 342. Cartwright v. Wilmerding, 24 N. Y. -521. Distinguished, 60 N. Y. 83. Carver v. Creque, 48 N. Y. 385; 46 Barb. 507. ' Distinguished, 69 N. Y. 279. Beviewed, 1 Hun 424. Cary v. Gregory, 38 Superior 127. See 44 Superior 26. Cary v. Gruman, 4 Hill 625. Distin- guished, 81 N. Y. 624. Gary v. Hotailing, 1 Hill 311. Fol- lowed, 80 N. Y. 375 n. Cary v. WTiite, 52 N. Y. 138. Distin- guished, 23 Hun 540; 67 N. Y. 87. Fol- lowed, 67 Barb. 345. Cary v. White, 59 N. Y. 336. Followed, 24 Hun 331. Ceiticised, 42 Superior 427. Case V. Boughton, 11 Wend. 106. Be- viewed, 97 111. 644. Case V. De Goes, 3 Cai. 261. Appeoved, II Johns. 384. Case V. Mechanics' Banking Assoc, 4 N. Y. 166. Not applicable, 46 Superior 517. Case V. People, 76 N. Y. 242. Ap- peoved, 9 Abb. N. Cas. 88. Explained and DISTINGUISHED, 61 How. Pr. 11. Case V. Phelps, 39 N. Y. 164. Distin- guished, 81 N. Y. 589; 53 How. Pr. 407. Followed, 54 Id. 49. Case V. Potter, 8 Johns. 163. Beviewed, 38 Superior 263. Casey, Matter of, v. Mayor, f Cone V. Dela-ware, &c., R. R. Co., 15 Hun 172. Affiemed, 81 N. Y. 206. Cone V. Niagara Fire Ins. Oo., .? Thomp. & C. 33 ; 60 N. Y. 619. Followed, 83 N. Y. 140. Conger v. Conger, 77 N. Y. 432. Fol- lowed, 23 Hun 231, 232. Conger v. Conger, N. Y. Supreme Ct. Dee., 1880. Followed, 23 Hun 232. Conger v. Van Aemum, 43 Barb. 602. Eetbesed, 6 Alb. L. J. 197. Congregation Shaaer Hash Moin v. Halliday, 3 Eobt. 386. Ebveesed, 50 N. Y. 664. Congress, &o., Spring Co. v. High Rock, &c.. Spring Co., 45 N. Y. 291. Dis- tinguished, 82 N. Y. 503, 524. Conklin v. Bauer, 62 N. Y. 620. Dis- tinguished, 79 N. Y. 276. Conklin v. Butcher, 5 How. Pr. 386. Followed, 7 How. Pr. 360, 363. Ovee- EULED, 16 Id. 78. ^ee 7 Id. S57, 358. Conklin v. Egerton, 21 Wend. 430. Ap- pboved, 53 Vt. 172. J Conklin v. Stamler, 2 Hilt. 422. Ex- plained, 38 Superior 263. Conklin v. Vandervoort, 7 How. Pr. 483. FoLLO-WED, 11 How. Pr. 395 399. Contea, 1 Abb. Pr. 118; 7 How. Pr. 59; 8 Id. 485; 9 Id. 217 ; 10 Id. 455 ; 12 Id. 500. Conleyv. Meeker, 9 Week. Dig. 288. Affiemed, 12 Week. Dig. 220. Oonlin v. Oantrell, 64 N. Y. 217. Dis- tinguished, 23 Hun 89. Connecticut Fire Ins. Co. v. Brie R'y Co., 73 N. Y. 399. Reviewed, 7 Fed. Rep. 259. Connecticut Mut. Life Assur. Co. v. Cleveland, &c., R. R. Co., 23 How. Pr. 180. Affiemed, 26 How. Pr. 225. Conner v. Mayor, &o., of New York, 5 N. Y. 285. Distinguished, 80 N. Y. 190. Followed, 24 Him 263; 82 N. Y. 204, 211. Reviewed, 65 Cal. 499 ; 5 Lans. 125. Conner v. Mayor, &o., of New York, 2 Sanf. 355. Re-tiewed, 55 Cal. 499. Connolly v. Poillon, 41 Barb. 366. Af- fiemed, 41 N. Y. 619. Connors v. People, 50 N. Y. 240. Dis- tinguished, 76 N. Y. 291. Conrad v. Williams, 6 Hill 447. Fol- lowed, 34 Superior 269. 322 CASES CRITICISED. Conrad v. Village of Ithaca, 16 N. Y. 158. Distinguished, 62 N. Y. 170. Oonroe v. Nat. Protection Ins. Co., 10 How. Pr. 403. See 11 How. Pr. 149, 151. Conealus v. Brotherson, 54 How. Pr. 62. Overruled, 56 How. Pr. 89. Continental Nat. Bank v. Nat. Bank of Commonwealth, 50 N. Y. 575. Dis- tinguished, 64 N. Y. 321 ; 80 N. Y. 40. Fol- lowed, 3 Hun 754 ; 6 Thomp. & C. 181. Con-way, Matter of, 62 N. Y. 504. Ex- plained, 82 N. Y. 245. Cook V. Brook-way, 21 Barb. 331. Crit- icised, 37 Barb. 290. Distinguished, 82 N. Y. 314. Cook V. Ellis, 6 Hill, 466. Approved, 26 Wis. 377. Cook V. Esleeck, 17 How. Pr. 134. Fol- lO-SFED, 17 How. Pr. 266. Cook V. Frledenthal, 14 Hun 542. Af- firmed, 80 N. Y. 202. Cook V. Freudenthal, 80 N. Y. 202, 205. Keitbrated, 54 N. Y. 234. Cook V. Holt, 48 N. Y. 275. Apprq-tbd, 35 Superior 372. Cook V. Hor-witz, 14 Hun 542. Af- firmed, 80 N. Y. 202. Cook V. Horwitz, 14 Hun 542. Eb-ar- gument denied, 24 Hun v. Cook V. Litchfield, 9 N. Y. 279; 5 Sandf. 330. Distinguished, 2 Bosw. 149. Limited, 28 N. Y. 558, 559. Cook V. Ne-wman, 8 How. Pr. 523. See 8 How. Pr. 527. Cook V. Pomeroy, 10 How. Pr. ,103. FoLLO-svED, 17 How. Pr. 97, 99. Cook V. 'Whipple, 55 N. Y. 150. Ap- proved, 58 Ind. 502, 507. Cooke V. Meeker, 42 Barb. 533. Af- firmed, 36 N . Y. 15. Cooke V. Meeker, 36 N. Y. 15. Distin- guished, 14 Vr. (N. J.) 47. Follo-vfbd, 52 How. Pr. 370, 371 ; 2 Bedf. 438. Cooke V. Passage, 4 How. Pr. 360. FOLLO-WBD, 1 Civ. Pro. 224 ; 61 How. Pr. 123. Cooke V. State Nat. Bank of Bos- -ton, 1 Lans. 494 ; 52 N. Y. 96. Overruled, 74.N. Y. 53. Cooke V. State Nat. Bank of Boston, 52 N. Y. 96. FOLLO-VFED, 9 Hun 397, 399. Cooley V. Ho-we Machine Co., 53 N. Y. 620. Distinguished, 82 N. Y. 4^5. Coon V. Knap, 8 N. Y. 402. Distin- guished, 31 N. Y. 500; 5 Kobt. 160, 167. Coon V. Knapp, 13 How. Pr. 175. See 13 How. Pr. 405. Cooper V. Barber, 24 Wend. 105. Fol- lo-wed, 81 N. Y. 249. Cooper V. Bigalo-w, 1 Cow. 56. Fol- LO-WBD, 4 How. Pr. 168, 172. Cooper V. Felter, 6 Lans. 485. Doubted, 4 Eedf. 499. Cooper V. Kerr, 3 Johns. Cas. 606. Ap- proved, 11 Johns. 53. Cooper V. Shafer, 41 Barb. 151. Over- ruled, 4 Abb, A pp. Dec. 149 n. Cooper V. Smith, 43 Superior 9. Fol- lowed, 45 Superior 242. Corbett v. De Comeau, 4 Abb. N. Cas. 252. Keversed, 44 Superior 306. Cordell v. Ne-w York Central, &c., R. R. Co., 6 Hun 461. See 70 N. Y. 119 ; 75 Id. 330. Cordell v. Ne-w York Central, &c., R. R. Co., 70 N. Y. 119. Reviewed, 8 Fed. Eep. 731. Cordell v. Ne-w York Central, &o., R. R. Co., 75 N. Y. 330. Distinguished, 23 Hun 280. Explained, 23 Id. 76. Followed, 22 Id. 79; 84 N. Y. 62. Corlies v. Cumming, 8 Cow. 181. Distinx guished, 129 Mass. 303, 305. Cormier v. Batty, 41 Superior 70. Fol- lowed, 42 Superior 423. Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613. Approved, 33 Superior 499; 36 Id. 254. Construed, 82 111. 454. Distin- guished, 65 Barb. 322. Followed, 59 Id. 641 ; 60 Id. 462. Comes V. Wilkins, 14 Hun 428. Fol- lowed, 22 Hun 460. , Corning v. Corning, 6 N. Y. 97. Dis- tinguished, 11 Hun 388. Corning v. Greene, 23 Barb. 33. Re- viewed, 26 N. Y. 472. Corning v. McCullough, 1 N. Y. 47, Distinguished, 80 N. Y. 457. Corning v. Po-wers, 9 How. Pr. 54. Fol- lowed, 9 How. Pr. 573, 575. Corning v. Slosson, 16 N. Y. 294. Dis- tinguished, 5 Thomp. & C. 448. Corning v. Southland, 3 Hill 552. Ap PROVED, 6 Lans. 214. Corning v. Troy Iron, &o., Factory, 6 How. Pr. 89. Contra, 14 How. Pr. 470, 472, Followed, 7 Id. 17. Corn-well v. "Woolley, 47 Barb. 327 Appirmed, 2 Trans. App. 380. Corson V. Ball, 47 Barb. 452, 453. Inap- plicable AND obsolete, 9 Abb. Pr., n. 8, 143. Cortelyou v. Lansing, 2 Cai. Cas(. 201 Approved, 12 Johns. 149. But see 5 Id. 260. Cor-win v. Preeland, 6 How. Pr. 241 Reversed, 6 N. Y. 560. Contra, 6 How. Pr 315. Cor-win v. Ne-w York and Erie R'y Co., 13 N. Y. 42. "Followed, 5 Hun 344. -See 21 Ohio St. 594. CASES CRITICISED. 323 Oosgrove v. New York Central, &c., E. B. Co., 13 Hun 329. Distinguished, 84 N. Y. 254. Oostello V. Meade, 55 How. Pr. 356. OVEBBULED, 82 N. Y. 39. Coster V. Lorillard, 14 Wend. 265. Ex- plained, 51 N. Y. 343. Coster V. Mayor of Albany, 43 N. Y. 399. Followed, 53 N. Y. 629. Coster V. Peters, 7 Eobt. 620. See 5 Eobt. 192. Cotheal v. Talmage, 9 N. Y. 551. Dis- TINGtrtSHED, 38 Barb. 643. Cotheal v. Tahnadge, 1 E. D. Smith 573. Followed, 51 How. Pr. 39. Cottle V. Vanderheyden, 56 Barb. 622; 39 How. Pr. 289. Appiemed, 11 Abb. Pr., n. s., 17. Coughtry v. Globe "Woolen Co., 56 N. Y. 124. DiSTiNGiriSHED, 66 N. Y. 187. County. See iiame of county in queition. Courtney v. Baker, 34 Superior 529. Appeal dismissed, 60 N. Y. 1. Ooiirtright v. Stewart, 19 Baib. 456. Appbovdd, 5 Lans. 245. Covert V. Hughes, 8 Hun 305. Distin- •guished, 23 Hun 89. Cowden v. Pease, 10 Wend. 334. Fol- lowed, 29 Mich. 211. Oowdin V. Stanton, 12 Wend. 120. Fol- lowed, 29 Mich. 211. Cowen V. Banks, 24 How. Pr. 72. Cbiti- <;iSED, 13 Wall. (U. S.) 615. Cowley V. People, 21 Hun 415. Ap- FiBMED, 83 N. Y. 464. Cowperthwaite v. Sheffield, 1 Sandf. 416 ; 3 N. Y. 243. Distinguished, 83 N. Y. 86. Cox V. Gould, 4 Blatchf. 341. Distin- ■GUisHBD, 80 N. Y. 345, 352. Cox V. McBurney, 2 Sandf. 561. Disap- proved, 5 Hun 413. Cox V. New York Central, &c., B. B. Co., 61 Barb. 615. Appeoved, 42 Superior 19. Cox V. New York Central, &c., B. B. Co., 63 N. Y. 414. Explained, 23 Hun 489. Cox V. People, 19 Hun 430. Appibmbd, 80 N. Y. 500. Cox V. Schermerhorn, 18 Hun 16. Followed, 24 Hun 114, 115. Coyle V. City of Brooklyn, 53 Barb. 41. Appibmed, 41 N. Y. 619. Cozzens v. Higgins, 1 Abb. App. Dec. 451 ; 3 Keyes 206. Followed, 83 N. Y. 479. Cragin v. New York Central B. B. <3o., 51 N. Y. 61. Distinguished, 24 Hun 180. Followed, 6 Thomp & C. 609. Craig V. Craig, 3 Barb. Ch. 76. Distin- -GUISHED, 14 Vr. (N. J.) 47. Craig V. Hone, 2 Edw. 554. Explained, 51 N. Y. 344. ' Craig V. Parkis, 40 N. Y. 181. Distin- guished, 4 Lans. 195. Craig V'. 'Ward, 36 Barb. 377. Com- mented ON, 57 Barb. 414 ; 39 How. Pr. 174. Distinguished, 66 Barb. 205. Craig V. "Ward, 3 Keyes 387. Followed, 41 Superior 135. Craig V. "Wells, 11 N. Y. 315. Fol- lowed, 52 N. Y. 635. Cram v. Dresser, 2 Sandf. 120. Ex- plained, 4 Hun 581. Cramer v. Blood, 57 Barb. 155. See hi Barb. 671. Crandall v. Bryan, 5 Abb. Pr. 162. OvEEEULED, 32 Barb. 83. Crane v. Baudoine, 65 Barb. 260, 263. Eeveesed, 52 N. Y. 526. Crane V. Turner, 67 N. Y. 437. Distin- guished, 83 N. Y. 221. Followed, 45 Su- perior 409. Crary v. Goodman, 22 N. Y. 170. Ex- plained, 53 N. Y. 296. Orary v. Smith, 2 N. Y. 65. Followed, 37 Superior 23. Craw V. Easterly, 54 N. Y. 679. Dis- tinguished, 65 N. Y. 256. Crawford v. CoUins, 45 Barb. 269. Followed, 5 Thomp. & C. 617. Crawford v. New York Central, &o., B. B. Co., 18 Hun 108. Followed, 22 Hun 309. Crawford v. "Waters, 46 How. Pr. 210. Appeoved, 42 Superior 390. Creed v. Hartman, 29 N. Y. 591. Fol- lowed, 35 Superior 1. Cregin v. Brooklyn Crosstown B. B. Co., 56 How. Pr. 32. Appibmed, 56 How. Pr. 465. Cregin v. Brooklyn Crosstown B. B. Co., 19 Hun 341. Beveesed, 83 N. Y. 595. Cregin v. Brooklyn Crosstown B. B. Co., 75 N. Y. 192. Distinguished, 23 Hun 73, 74. Followed, 24 Id. 622. Crippen v. Thompson, 6 Barb. 532. Distinguished, 9 Pa. St. 124, 125. Crisfleld v. Perinp, 15 Hun 200. Ap- pibmed, 81 N. Y. 622. Crispin V. Babbitt, 81 N. Y. 516. Fol- lowed, 84 N. Y. 81. Crittenden v. Adams, 1 Code, n. s., 21 ; 5 How. Pr. 310. Contba, 5 How. Pr. 337, 361 1 7 Id. 112 ; 14 Id. 522. See 26 Id. 247. Crocker v. Claugly, 2 Duer 684. Dis- tinguished, 16 Abb. Pr. 105. Crocker v. Colwell, 59 N. Y. 213. Noticed, 44 Superior 16. Crocker v. Crocker, 31 N. Y. 507. Dis- tinguished, 55 Barb. 59. 324 CASES CRITICISED. Orooheron v. North Shore Staten Island Ferry Co., 1 Thomp. & C. 446. Ee- VBRSBD, 56 N. Y. 656. Orocheron v. North Shore Staten Island Ferry Co., 56 N. Y. 656. Fol- lowed, 84 N. Y. 460. Crofoot V. Bennett, 2 N. Y. 158. Dis- TINQUISHED, 65 N. Y. 365. Orofut V. Brandt, 13 Abb. Pr., n. s., 128 Affibmed, 46 How. Pr. 481 ; 5 Daly 124. Oroghan v. Livingston, 17 N. Y. 218. Appboved, 1 Civ. Pro. 157. Oromelines v. Beldens, 1 Wend. 107. Explained, 2 Hill 379. Cromwell v. Brown, 17 How. Pr. 68. CONTBA, 9 How. Pr. 474 ; 15 Id. 12. Oronin v. People, 20 Hnu 137. Ar- PIBMED, 82 N. Y. 318. Crookshank v. G-ray, 20 Johns. 344. Dictdm: ovERBtTLED, 3 Barb. 631. Crosby, Matter of, v. Day, 16 Hun 291. Affirmed, 81 N. Y. 242. Cross V. O'Donnell, 44 N. Y. 661. Dis- TDTGinSHED AND EXPLAINED, 47 N. Y. 454. Crotty V. MaoKenzie, 52 Honr. Pr. 54. CoNTBA, 4 Saudf. 661. Crouch V. G-ridley, 6 Hill 250. Ques- tioned, 3 Barb. 429. Crouch V. Parker, 40 Barb. 94. Ee- versed, 6 Alb. L. J. 197. Crounse v. Fitoh, 14 Abb. Pr. 346. Ee- TEBSED, 1 Abb. App. Dec. 475. Crounse v. Fitch, 1 Abb. App. Dec. 475. DiSTiNGtnsHED, 81 N. Y. 624. Cruger v. Armstrong, 3 Johns. Cas. 5. Approved, 12 Johns. 95. Cruger v. Halliday, 11 Paige 314. Fol- lowed, 42 Superior 238. Cruger v. Hudson River R. R. Co., 12 N. Y. 190. Explained, 56 N. Y. 378. Cruger v. Jones, 18 Barb. 267. Fol- lowed, 81 N. Y. 19. Cudney v. Cudney^ 68 N. Y. 148. Dis- tinguished, 4 Eedf. 131. Eeviewed, Id. 472, 473, 474. Cuff V. Borland, 50 Barb. 438. See 55 Barb. 481. Cuff V. Dorland, 55 Barb. 481. Be- VBKSED, 57 N. Y. 560. Culver V. Haslam, 7 Barb. 314. Ap- proved, 13 Barb. 550. Cumming v. Edgerton, 9 Bosw. 684, 685. Overruled, (?) 60 How. Pr. 79. Cumming V. Hackley, 8 Johns. 202, 206. Distinguished, 11 Johns. 468. Cumming v. 'Williamson, 1 Sandf. Ch. 17. Followed, 58 Miss. 617. Cummins v. Agricultural Ins. Co., 67 N. Y. 260. Eeviewed, 43 Mich. 371. Cummins v. Bennett, 8 Paige 81. Dis- tinguished, 13 Hun 64. Cunningham v. Freeborn, 11 Wend. 241, 256. Followed, 11 Bankr. Eeg. 268. Qualified, 6 Abb. Pr. 358, 370. Cunningham v.' Q-oelet, 4 Den. 71. Followed, 1 Thomp. & C. 578. Cure V. Crawford, 5 How. Pr. 293. Not concubeed in, 6 How. Pr. 89, 92. Contra, 7 Id. 17. Ourrie v. Noyes, 1 Code, n. s., 198.. Contra, 15 How. Pr. 10, 11, 12. Currie v. White, 37 How. Pr. 384. Ee- VERSED, 45 N. Y. 822. Curtis V. Brooks, 37 Barb. 476. Oveet ruled, 59 Barb. 505. Curtis V. Delaware, &o., R. R. Co., 74 N. Y. 116. Distinguished, 82 N. Y. 420. Curtis V. Leavitt, 15 N. Y. 9. Ap- proved AND followed, 61 How. Pr. 96, 97 ; 80 N. Y. 234. Eeviewed, 8 Bradw. (111.) 349. Ctirtis V. Patterson, 8 Cow. 65. Over- ruled, 11 Hun 565, 570. Curtis V. Smith, 60 Barb. 9. Not fol- lowed, 61 How. Pr. 180. Curtis V. Stillwell, 32 Barb. 354. Ee- VEE8BD, 25 How. Pr. 592 n. Curtiss V. Ayrault, 47 N. Y. 73, 81. Fol- lowed, 81 N. Y. 563. Cushman v. Horton, 4 Thomp. & C. 103. Eeversed, 59 N. Y. 149. Cutler V. Biggs, 2 Hill 409. Distin- guished, 80 N. Y. 551. Cutler V. "Wright, 22 N. Y. 472. Disap- proved, 1 Hun 669 ; 4 Thomp. & C. 244. Cutts V. Guild, 57 N. Y. 229, 232. Ap- plied, 53 How. Pr. 317, 318. Cuyler v. NeUis, 4 Wend. 898. Disap- proved, 5 Den. 338. Overruled, 23 Wend. 620. CASES GEITICISED. 325 D. Daok V. Daok, 19 Hun 630. Modified, «4 N. Y. 663 ; 12 Week. Dig. 97. Dailey v. Orowley, 5 Lans. 301. See 44 Superior 416. Dake v. Miller, 15 Hun 556. Followed, 22 Hun 461. Damainville v. Mann, 32 N. Y. 197. DisAPPBoVED, 56 111. 461, 462. Dambmann v. Schulting, 54 How. Pr. 289. Eeversed, 75 N. Y. 55. Distinguished, 23 Hun 445, 447. Damon v. Moore, 5 Lans. 454. Ap- PBOVED, 23 Hun 71, 72. Dana v. Munson, 23 K. Y. 564. Lim- ited, 62 N. Y. 645. Dane v. Mallory, 16 Barb. 46, 53. Quali- fied, 38 How. Pr. 305. Daniels v. Lyon, 9 N. Y. 549. Over- EULED, 56 N. Y. 50 ; 22 Hun 182. Daimat v. Mayor, &c., of New York, •6 Hun 88. See 44 Superior 53. Darlington v. Mayor, &o., of New York, 31 N. Y. 164; 28 How. Pr. 352.. Ex- plained, 54 N. H. 38, 55. Followed, 80 N. Y. 302, 307 ; 37 How. Pr. 499, 513, 519. Darrin v. Hatfield, 4 Sandf. 468. Eb- VEBSED, Seld. No. (2d ed.) 38. Darrow v. Miller, 5 How. Pr. 247. Fol- lowed, 6 How. Pr. 21. Dart V. Ensign, 47 N. Y. 619. Fol- lowed, 9 Hun 378, 381. Dasli V. Van Kleeck, 7 Johns. 477. Ar- PEOVED, 1 Flipp. (U. S.) 534. ■ . Dauber v. Blaokney, 38 Barb. 432. Followed, 80 N. Y. 269, 271. Dauoby V. Silliman, 2 Lans. 361. Ap- ciBMED, 6 Alb. L. J. 169. Davenport v. Ludlow, 4 How. Pr. 337. KOT CONCUBBED IN, 9 How. Pr. 16, 17. Davidson v. Alfaro, 16 Hun 353. Af- FIBMED, in part, 80 N. Y. 660. Davies v. Oram, 4 Sandf. 355. Distin- guished, 18 Barb. 409. Followed, 9 How. Pr. 503; 10 Id. 398. Davies v. Mayor, &o., of New York, 45 Superior 373. Bevebsed, 83 N. Y. 207. Davis V. Dunham, 13 How. Pr. 425. See 13 How. Pr. 542, S45. Davis V. Hudson, 5 Abb. Pr. 61, 63. DiSAPPEOVED, 2 Hilt. 619. Ovebeuled, 5 Abb. Pr. 205 n.,- 39 How. Pr. 121, 122. Davis V. Mayor, &c., of New York, 1 Duer 461, 484. Oontea, 20 How. Pr. 358, 361. Davis V. Mayor, &o., of New York, 2 Duer 663. Appeovbd, 51 Mo. 363. Davis V. Mayor, &o., of New York, 3 Duer 119. Bevebsed, 14 N. Y. 506. Davis V. Mayor, &o., of New York, 14 N. Y. 506. Appeoved and followed, 12 Hun 176, 178. Davis V. Morris, 21 Barb. 162. Contra, 13 How. Pr. 466. Davis V. New York, &c., R. R. Co., 47 N. Y. 400, 402. Followed, 42 Superior 225. Davis V. Packard, 6 Wend. 327. Be- vebsed, 7 Pet. (U. S.) 276. Davis V. Peck, 54 Barb. 425. Distin- guished, 80 N. Y. 57. Followed, 47 How. Pr. 82. Davis V. People, 2 Thomp. & C. 212. Affirmed, but prineiple overruled, 66 N. Y. 95. Davis V. Shields, 26 Wend. 341. Ex- plained, 8 Barb. 344. Davis V. Talloot, 12 N. Y. 184. Dis- tinguished, 83 N. Y. 197. Davis V. Van Buren, 6 Daly 391. Af- fiemed, 6 Daly 398 n. Davison's Case, 13 Abb. Pr. 129. Sus- tained, 34 How.Pr. 355. Davison v. Powell, 13 How. Pr. 287. Disapproved, 16 How. Pr. 336, 337. Davison v. Waring, , 9 How. Pr. 254. See 9 How. Pr. 398. Dawley v. Brown, 79 N. Y. 390. Ap- plied, 24 Hun 689. Dawley v. Brown, 43 How. Pr. 17. See 43 How. Pr. 22. Dawson v. Horan, 61 Barb. 469. Fol- lowed, 62 Barb. 16. Dawson v. People, 25 N. Y. 399. Dis- TiNGUiSHiiD, 82 N. Y. 339, 345. Day V. New York Central R. R. Oo., 51 N. Y. 583. Followed, 22 Hun 414. Day V. Pool, 52 N. Y. 416. Distin- guished, 64 N. Y. 416 ; 40 Superior 483. Fol- lowed, 58 N. Y. 365. See 44 Superior 576. Day V. Roth, 18 N. Y. 448, 453. Ap- proved, 23 Hun 651, 653. Distinguished, 69 N. Y. 626. Day V. Saunders, 3 Keyes 347. Ex- plained AND FOLLOWED, 2 Lans. 127. Dean v. Mtna, Life Ins. Co., 4 Thomp. & C. 497. Eeversed, 62 N. Y. 642. Dean v. Cannon, 1 Daly 34. Changed BY statute, 5 Daly 110. Dean v. De VTolf, 16 Hun 186. Af- firmed, 82 N. Y. 626. Dean v. Eldridge, 29 How. Pr. 218. Ap- peoved, 51 N. Y. 7 ; 7 Eobt. 77. Dearborn v. Cross, 7 Cow. 48. Ap- plicable, 12 Otto (U. S.) 66. 326 CASES CRITICJSED. Deas V. 'Wandell, 1 Hun 120. Distin- GTnsHED, 4 Eedf. 99. De Baun v. Mayor of New York, 16 Barb. 392. Cbiticised, 7 Abb. Pr. 126, 127. Debuseierre v. HoUaday, 55 How. Pr. 210, 220. Cbiticised and distinguished, 23 Hun 439, 442. Decker v. Boice, 19 Hun 152. Ar- riRMED, 83 N. Y. 215. Followed, 84 Id. 593. Decker v. Judsou, 16 N. Y. 439, 443. DisTEtfomsHED, 80 N. Y. 202, 210. Not in POINT, 24 Hun 445. Deoouche v. Savetier, 3 Johns. Oh. 190- Doubted, 7 Johns. Ch. 127. Dederlck v. HoySradt, 4 How. Pr. 350. Followed, 8 How. Pr. 416, 419. Dedieu v. People, 4 Park. Cr. 593. Ke- VERSED, 22N.Y. 178. Dedieu v. People, 22 N. Y. 178 Distinguished, 80 N. Y. 329, 332, 333. Doubted, 7 Abb. Pr., n. s., 79 ; 40 N. Y. 353. Degraaf v. Teerpenning, 52 How. Pr. 313. Eevebsed, 14 Hun 301. Degrafif v. New York Central, &o., B. R. Co., 76 N. Y. 125. Distinguished, 53 Iowa 599. Degraw v. Elmore, 50 N. Y. 1. Dis- tinguished, 59 N. Y. 162. Delafield v. Parish, 25 N. Y. 9. Ap- proved, ,51 Wis. 104. Explained, 3 Eedf. 59. Followed, 60 Barb. 69. Delamater v. People, 5 Lans. 332. Fol- lowed, 6 Lans. 460. Delamater v. Pierce, 3 Den. 315. Ar- FIBMED, 3 Den. 610. Delamater v. Russell, 4 How. Pr. 234. Criticised, 26 Wis. 438. Followed, 4 Bosw. 627. De Lanoey v. Stearns, 66 N. Y. 157. Followed, 45 Superior 404. Delaney v. Van Aulen, 21 Hun 274. Eeversed, 84 N. Y. 16. Delaware and Hudson Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250. Approved, 33 Wis. 331, 345. Distinguished, 24 Hun 567, 568. De Llamosas v. De Llamosas, 2 Hun 380. Appeal dismissed, 62 N. Y. 618. Demarest v. Darg, 32 N. Y. 284. Ex- plained, 41 How. Pr. 30, 33. Demarest v. New Jersey, &c., R'y Co., 22 Hun 129. Appeal dismissed, 24 Hun V. Deming v. Kemp, 4 Sandf. 147. Over- ruled, 32 Barb. 437. Deming v. New York Marble Co., 12 Abb. Pr.>66. Contra, 4 E. D. Smith 183. Deming v. Puleston, 33 Superior 231. Followed, 37 Superior 269. Deraing v. Puleston, 35 Superior 309 ; 55 N. Y. 655. Distinguished, 8 Abb. N. Cas. 385, 388. Followed, 38 Superior 142. Demott V. Hagerman, 8 Cow. 220. Criticised, 44 Ind. 290. DeMott V. McMullen, 8 Abb. Pr., n. s., 335. Criticised, 8 Hun 307. DeMott V. Starkey, 3 Barb. Ch. 403. Distinguished, 84 N. Y. 135. Denham v. Village of Rochester, 5 Cow. 462. Distinguished, 57 N. Y. 596. Denike v. Harris, 23 Hun 213. Ee- versed, 84N. Y. 89. Denny v. New York Central, &c., R. R. Co., 5 Daly 50. Distinguished, 24 Hun 54. Denton v. Nanny, 8 Barb. 618. Criti- cised, 101 Mass. 432. Contra, 10 Paige 49. See 13 How. Pr. 293. Denton v. Noyes, 6 Johns. 296. Distin- guished, 65 N. Y. 188. See 10 Paige 49. Dept. of Public Parks, Matter of, 6 Hun 486. Eeversed, 73 N. Y. 560. Dept. of Public Parks, Matter of, 73 N. Y. 560. Distinguished, 81 N. Y. 436, 447. De Peyster, Matter of, 18 Hun 445. Affirmed, 80 N. Y. 565. De Peyster, Matter of, 4 Sandf. Ch. 511. Not in point, 24 Hun 115. De Peyster v. Michael, 6 N. Y. 467. Ap- proved,. 29 Mich. 95. Criticised, 19 N. Y. 75. Eeviewed, 54 Iowa 315. De Peyster v. Murphy, 39 Superior 256. Eeviewed, 4 Eedf. 63. De Peyster v. Sun Mutual Ins. Co., 19 N. Y. 272. Eeviewed, 44 N. Y. 218, 222. De Pierris, Matter of, 20 Hun 305. Ee- versed, 82 N. Y. 243. De Pol V. Sohlke, 7 Eobt. 280. Ex- plained, 38 Superior 158. Deposit, Village of, v. Vail, 5 Hun 310. Followed and Approved, 7 Hun 345, 347. Deraismes v. Merchants' Mut. Ins. Co., 1 N. Y. 371. Eb-affibmed 4 N. Y. 51. Derby v. Hannin, 15 How. Pr. 32. See 16 How. Pr. 17 ; 17 How. Pr. 255. De Ridder v. Schermerhorn, 10 Barb. 638. Contra, 4 How. Pr. 48. De Rivafinoli v. Corsetti, 4 Paige 264. Explained, 38 Superior 168. De Rutte v. New York, dismissed, 74 N. Y. 80. Elwell V. M'Queen, 10 Wend. 620, 521. Explained, 41 How. Pr. 30, 33. Elwell V. SMddy, 8 Hun 73. Eeversed, 20 Alb. L. J. 155. Elwood V. Gardner, 10 Abb. Pr,, n. s., 238 J 45 N. Y. 349. Distinguished, 14 Abb, Pr., N. s., 200, 205. Elwood V. Smith, 9 How. Pr. 528. Con- tra, 12 How. Pr. 106. Ely V. Cook, 16 Abb. Pr. 366. Affirmed, 2 Abb. App. Dec. 14. Ely V. Holten, 15 N. Y. 595. Explained, 5 Lans. 175. Ely V. Lowenstein, 9 Abb. Pr., n. s., 42, Limited, 9 Abb. Pr., n. s., 97 n. Ely V. New Haven Steamboat Co., 53 Barb. 207. Explained, 46 N. Y. 586. Considered overruled, 52 N. Y. 51. Ely V. Spofford, 22 Barb. 231. Eb- versed, 41 N. Y. 619. Ely V. Supervisors of Niagara. County, 36 N. Y. 297. Approved, 83 N. Y. 190. Eeviewed, 90 Pa. St. 415. Emerson v. Bleakley, 5 Abb. Pr., n. s., 350. Followed, 61 How. Pr. 180. Emerson v. Bowers, 14 N. Y. 449. Dis- tinguished, 60 How. Pr. 254. Emerson v. Burney, 6 How. Pr. 32. Criticised, 11 How. Pr. 572, 575. Followed, 12 Id. 435. Emery v. Pease, 20 N. Y. 62. Distin- guished, 57 N. Y. 565. Emigrant Industrial Savings Inst., Matter of, 75 N. Y. 388. Followed, 80 N. Y. 642 ; 82 Id. 131, 142 ; 84 Id. 603. Emmet v. Hoyt, 17 Wend. 410, 416. Distinguished, 82 N. Y. 95, 101. Empire City Bank, In re, 18 N. Y. 199. Eeviewed, 8 Fed. Eep. 59. Enders v. Stembergh, 52 Barb. 222. Eeversed, 41 N. Y. 619. Engh V. Greenebaum, 2 Hun 136. Nor APPLICABLE, 46 Superior 517. Ennis v. Harmony Fire Ins. Co., $ Bosw. 516, 517. Followed, 41 Superior 279. Eno V. Mayor, &c., of New York, 68 N. Y. 214. Commented on, 45 Superior 509. Enoch Morgan's Sons Co. v. Schwachhoefer, 55 How. Pr. 37, 38. Fol- lowed, 23 Hun 632, 639. Enos V. Thomas, 5 How. Pr. 361. Fol- lowed, 7 How. Pr. 108, 112. Contra, 5 How. Pr. 310 ; 14 Id. 430, 434, 435 ; 3 Duer 669. Ensign v. Sherman, 14 How. Pr. 439 Followed, 16 How. Pr. 308, 312. S32 CASES CRITICISED. Brben v. Lorillard, 19 N. Y. 299. Dis- tinguished, 51 Barb. 100; 23 Hun 454, 471. Followed, 41 Superior 16; 39 Id. 371; 5 ' Thomp. & C. 301. Briokson v. Quinn, 3 Lans. 299. Modi- fied, 47 N. Y. 410. Erickson v. Smith, 2 Abb. App. Dec. 64. Approved, 83 N. Y. 470. Ericsson v. Brown, 88 Barb. 390. Dis- TiNGtnsHED, 58 N. Y. 367. Erie R'y Co. v. Champlain, 35 How. Pr. 74. Followed. 3 Thomp. & C. 452. Erie R'y Oo. v. Owen, 32 Barb. 616. Distinguished, 22 Hun 362 ; 24 Id. 394. Erie R'y Co. v. Ramsey, 45 N. Y. 637. Followed, 47 N. Y. 46. Limited, 26 Minn. 481. Ernst V. Hudson River R. R. Co., 19 How. Pr. 205. See 32 How. Pr. 262. Ernst V. Hudson River R. R. Co., 24 How. Pr. 97. See 32 How. Pr. 262. Ernst V. Hudson River R. R. Co., 32 How. Pr. 61. Followed, 34 How. Pr. 91, 92, S3. See 32 Id. 262. Ernst V. Hudson River R. R. Co., 35 N. Y. 9, 27. Distinguished, 71- Mo. 487. Pabtially overbuled, 34 Iowa 279. Ernst V. Hudson R. R. R. Co., 39 N. Y. 61. Followed, 41 N. Y. 296, 299. Brwin v. Hamilton, 50 How. Pr. 32. Contra, 11 How. Pr. 260. Erwin v. Loper, 43 N. Y. 527. Ex- plained, 3 Kedf. 506. Erwin v. Olmsted, 7 Cow. 229. Distin- guished, 64 N. Y. 294. . Erwin v. Schriver, 19 Johns. 379, 380. Not applicable, 55 Cal. 536, 540. Erwin v. Voorhees, 26 Barb. 127. Ee- VERSED in 1862, (not reported.) Esmond v. BuUard, 16 Hun 65. Af- firmed, 79 N. Y. 404. Estes V. Wilcox, 67 N. Y. 264. Ex- plained, 23 Hun 45, 48. Not applicable, 24 Id. 471. Estevez v. Purdy, 6 Hun 46. Disap- PEOYED, 2 Stew. (N. J.) 455. Estevez v. Purdy, 66 N. Y. 446. Dis- tinguished, 53 Iowa 630. Followed, 12 Hun 576 ; 45 Superior 64. Evans v. Oliapin, 12 Abb. Pr. 161; 20 How. Pr. 289. Explained, 5 Abb. Pr., n. s., 333, 337. Evans v. Hill, 18 Hun 464, 465. Fol- lowed, 23 Hun 37, 39. Evans v. Kalbfleisch, 16 Abb. Pr., n. s., 13. Distinguished, 63 N. Y. 317. Fol- lowed, ]6 Abb. Pr., N. s., 247, 249; 2 Hun 665. Evans v. Kalbfleisch, 36 Superior 450. Followed, 37 Superior 289. Evans v. XTnited States Life Ins. Co. 64 N. Y. 304. Followed, 82 N. Y. 543, 551. Everett v. Vetadryes, 19 N. Y. 436. Followed, 84 N. Y. 381. Bveringham v. Vanderbilt, 51 How. Pr. 177. Affirmed, 12 Hun 75. Everitt V. Everitt, 41 Barb. 385. Ap- piBMBD, 6 Alb. L. J. 197. Everitt V. Everitt, 29 N. Y. 39. Dis- tinguished, 67 N. Y. 352. Followed, 49 How. Pr. 229, 230; 3 Thomp. & C. 115, 113. Everson v. Gebrman, 10 How. Pr. 301. See 14 How. Pr. 446, 448 ; 22 Id. 265, 266. Everts v. Everts, 62 Barb. 577, 583. Fol- lowed, 24 Hun 112; 81 N. Y. 573, 583. Excelsior Fire Ins. Co. v. Royal Ins. Co. of Liverpool, 55 N. Y. 343. Approved, 5 Hun 325. Excelsior Grain Binding Co. v. Stay- ner, 58 How. Pr. 273. Affiemed, 61 How. Pr. 456. Excelsior Ins. Co., Matter of, 38 Barb. 297. Affiemed, 25 How. Pr. 591 n. Excelsior Petroleum Co. v. Embury, 4 Hun 648. Affiemed, 63 N. Y. 422. Exchange Bank v. Monteath, 17 Barb. 171. Not applicable, 46 Superior 517. Exchange Fire Ins. Co. v. Early, 54 How. Pr. 279. See 55 How. Pr. 342. Extension of the Bowery, Matter of, 12 How. Pr. 97. Contea, 5 Abb. Pr. 272; 61 Barb. 45. CASES CEITICISED. 33S Fagan V. Dugan, 2 Eedf. 341. Beviewed, 4 Eedf. 474. Pagan v. Mayor, &o., of New York, 84 N. Y. 348. Followed, 84 N. Y 657. Fagen v. Davison, 2 Duer 153. Disap- PBOVED, 14 Abb. Pr. 36. Fairbanks v. Mathersell, 41 How. Pr. 274 ; 60 Barb. 406. Criticised, 7 Lans. 27, 33. DiSTiNGinsHED, 63 N. Y. 613. Fairbanks v. Tregent, 16 How. Pr. 187. See 17 How. Pr. 427, 428. Fairbanks v. "Wood, 17 Wend. 329. Coe- BEOTED, 2 Hill 238 ; 5 Id. 408. Fairchild v. G-wynne, 16 Abb. Pr. 23. Eeviewed aot) FOLLOWED, 24 Hun 124, 125. Fairfax v. New York, &c., R. R. Co., 67 N. Y. 11. Ee-appirmed, 73 N. Y. 167. Fake v. Eddy, 15 Wend. 76. Distin- guished, 3 Hun 249. Followed, 32 Ind. 330. Falkland v. St. Nicholas Nat. Bank, 21 Hun 450. Eeveesed, 84 N. Y. 145. Falkland v. St. Nicholas Nat. Bank, 10 Week. Dig. 222. Eevbksed, 12 Week. Dig. 27. Fallon V. Central Park, &c., R. R. Co., 6 Daly 8. Affibmed, 64 N. Y. 13. Fallon V. Mayor, &c., of New York, 4 Hunt 583. Followed, 40 Superior 523. Fanning v. Consegua,. 17 Johns. 510. Appboved, 84 N. Y. 378. Fanning v. Trowbridge, 5 Hill 428. LxmiTED, 1 Den. 175. Farley v. Flanagan, 1 E. D. Smith 313. Ee-affibmed, 2 E. D. Smith 386. Farmers', &c., Bank v. Butchers', &o.. Bank, 14 N. Y. 633, Followed, 26 Wis. 669. Farmers', &o., Bank, v. Btrtohers', &c., Bank, 16 N. Y. 125. See 26 Wis. 669. Farmers', Eeversed, 3 Den 589 n. Freelove v. Cole, 41 Barb. 318. Af- firmed, 41 N. Y. 619. DiSTINGUIBHED, 11 Hun 257. Freeman v. Auld, 37 Barb. 587. Over- ruled, 44 N. Y. 50. Freeman v. Auld, 44 Barb. 14. Ee- versed, 44 N. Y. 50. Freeman v. Auld, 44 N. Y. 50. Distin- guished, 53 How. Pr. 195 ; 81 N. Y. 61. Freeman v. Cram, 3 N. Y. 305. Fol- lowed, 23 Hun 361, 366. Freeman v. Falconer, 45 Superior 383. Followed, 46 Superior 183. Freeman v. Freeman, 43 N. Y. 34. Approved, 23 Hun 29, 32. Freeman v. Fulton Fire Ins. Co., 14 Abb. Pr. 398. Explained, 1 Abb. Pr., n. s., 343, 345. See 45 Barb. 384. Freeman v. Orser, 5 Duer 476. Distin- guished, 2 Bosw. 92. Frees v. Ford, 6 N. Y. 176. Approved, 5 Lans. 70. Freeson v. Bissell, 63 N. Y. 168. Dis- tinguished, 63 N. Y. 305. Freiberg v. Branigan, 18 Hun 344.. Affirmed, 82 N. Y. 627. Fremont v. Stone, 42 Barb. 169, 170. Eeviewed, 43 Superior 506. French v. Kennedy, 7 Barb. 452. Dis- tinguished, 3 Hun 249. French v. Powers, 80 N. Y. 146. Fol- lowed, 84 N. Y. 286. French v. ShotweU, 5 Johns. Ch. 555. Eeviewed, 12 Otto (U. S.) 154 ; 1 Trans. Kep.. 72. CASES CRITICISED. 337 Prink v. Morrison, 13 Abb. Pr. 80. Ap- proved, 61 Barb. 361. Prisbee v. Hoffnagle, 11 Johns. 50. OvEREtTLED in part, 3 Hill 171, 176. Prith V. Oro-well, 5 Barb. 209. Contra, 2 Sandf. 379. Prost V. HotohkiBS, 1 Abb. N. Cas. 27. Distinguished, 5 Abb. N. Cas. 184, 189. Prost V, M'Oarger, 14 How. Pr. 131. Approved, 34 Barb. 20. Contra, 4 Duer 642 ; 11 How. Pr. 1. Prost V. Yonkers Savings Bank, 70 N. Y. 553. Explained, 23 Huu 233, 236. Prary v. Dakin, 8 Johns. 353. Eeviewed, 24 Hun 441, 442. Pry V. Evans, 8 Wend. 530. Followed, 59 N. Y. 579. Pry V. People, 21 Hun 282. Ateirmed, 84 N. Y. 650. Pudikar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392. Followed, 82 N. Y. 27, 31. Puller V. Emerio, 2 Sandf. 626. Contra, 22 How. Pr. 500. Ke-afpirmed, 1 Eobt. 642. Puller V. Lewis, 1.3 How. Pr. 219. Over- ruled, 33 Superior 179. Puller V. Robinson, 10 Week. Dig. 487. Eeversed, Oct. 11th, 1881. Pulton V. "WTutney, 66 N. Y. 548. Fol- lowed, 81 N. Y. 308, 322, 327, 337. Punok V. Merian, 2 Leg. Obs. 126. Be- versed, 4 Den. 110 ; 4 How. Pr. 368. Purman Street, Matter of, 17 Wend. 649, 670. Followed, 56 Barb. 463. Pumiss V. Hone, 8 Wend. 247, 256. Followed, 38 Superior 148. Purst V. Second Ave. B. B. Oo., 72 N. Y. 542. Distinguished, 83 N. Y. 417. G-age V. Angell, 8 How. Pr. 335. Criti- cised, 3 Lans. 188. Gage V. Dauchy, 28 Barb. 622. Ee- versed, 34 N. Y. 293. Gage V. Kendall, 15 Wend. 640. Ex- plained, 45 N. Y. 728. Gale, Matter of, 75 N. Y. 526. Distin- guished, 82 N. Y. 161, 165. Gale V. Maier, 44 Barb. 420. Affirmed, 54 N. Y. 536. See 1 Lans. 451. Gallagher v. Egan, 2 Sandf. 742, 744. Distinguished, 58 I^^. Y. 112. Gallup V. Babsen, 3 Hun 598. Appeal dismissed, 68 N. Y. 615. Gallup V. Perue, 10 Hun 525. FolIowed, 22 Hun 462. Gandal v. Pinn, 13 How. Pr. 418. Dis- approved, 15 How. Pr. 67, 69, 70. Gantz, Matter of, 11 Week. Dig. 437. Eeversed, 12 Week. Dig. 449. Gardiner v. Clark, 6 How. Pr. 449. Concurred in, 14 How. 61, 63, 64, 66. Contra, 10 Id. 162, 164. Gardiner v. Tyler, 3 Keyes 505. Fol- lowed, 34 Superior 274. Gardner, Matter of, 6 Hun 67. Contra, 69 N. Y. 452. Gardner v. Barney, 24 How. Pr. 467. Distinguished, 58 N. Y. 588. Gardner v. Board of Health of New York, 10 N. Y. 409. Eeviewed, 2 Hun 268. Gardner v. Commissioners of High- ways of the Town of "Warren, 10 How. Pr. 181. Followed, 2 Hun 70, 73. Gardner v. Gardner, 7 Paige 112. Qualified, 3 Eedf. 497. Gardner v. Luke, 12 Wend. 269. See 10 How. Pr. 188, 190. Gardner v. McBwen, 19 N. Y. 123. Dissented from, 72 Mo. 185. Distinguished, 65 N. Y. 467. Gardner v. Miller, 19 Johns. 188. Fol- lowed, 3 Eedf. 371. Gardner v. Teller, 2 How. Pr. 241. Ap- plied, 3 How. Pr. 28. Garfield v. Kirk, 65 Barb. 464, 465. Fol- lowed, 42 Superior 126. Garlick v. James, 12 Johns. 146. Fol- lowed, 39 Superior 302. Garlinghouse v. Jacobs, 29 N. Y. 297. Criticised, 44 N. Y. 122. Distinguished, 1 Hun 571, 572. Gamer v. Hannah, 6 Duer 262. Ee- viewed, 38 Superior 215. Gamsey v. Rogers, 47 N. Y. 233, 237. Approved, 82 N. Y. 385, 387, 391. Fol- lowed, 22 Hun 114 ; 82 N. Y. 431, 435 ; 84 Id. 514. Garr v. Selden, 4 N. Y. 91. Approved, 31 Barb. 471. G«.rretson v. Clark, Hill & D. 162. Fol- lowed, 2 Thomp. & C. 141. Garrison v. Howe, 17 N. Y. 458. Ex- plained, 4 Eobt. 635, 638. Garrity v. Haynes, 53 Barb. 596. Af- firmed, 6 Alb. L. J. 170. Garvey, Matter of, 77 N. Y. 523. Dis- tinguished, 81 N. Y. 139, 141. 338 CASES CKITICISED. G-arvey v. MoDevitt, 72 N. Y. 556, 563. Distinguished, 23 Hun 299, 303. Garwood v. New York Central, &c., R. R. Co., 17 Hiin 356. Affirmed, 83 N. Y. 400. Gaskin v. Anderson, 55 Barb. 259. Af- firmed, 55 Barb. 262. Gaskin v. Meek, 42 N. Y. 188. Distin- guished, 9 Hun 191 ; 68 N. Y. 384. Gates V. Brower, 9 N. Y. 205. Distin- guished, 63 N. Y. 613. Gates V. Green, 4 Paige 354. Be- VIEWED, 25 Kan. 689. Gates V. McKee, 13 N. Y. 232. Ke- AFFIBMED, 24 N. Y. 64. Gates V. Preston, 41 N. Y. 113. Dis- TIKGUISHED, 83 N. Y. 197. Gates V. "Ward, 17 Barb. 424. Over- ruled, 5 Daly 17. See 11 How. Pr. 148. Gault V. Jenkins, 12 Wend. 488. In POINT, 17 Blatohf. (U. S.) 15. Gautier v. Douglass Manuf. Co., 13 Hun 514. Distinguished, 46 Superior 518. Gawtry v. Doane, 51 N. Y. 84. Fol- lowed, 1 Thomp. & C. 535. Gay V. Ballou, 4 Wend. 403. Over- ruled, 11 Barb. 224. Gazeaux v. Mali, 25 Barb. 578. Ap- proved, 38 Barb. 445. Gazley v. Price, 16 Johns. 267. Over- ruled, 14 Barb. 418. Questioned, 4 N. Y. 396. Gedney v. Earl, 12 Wend. 98. Ex- plained, 7 Barb. 297. Geery v. Cockroft, 33 Superior 146. Followed, 36 Superior 50. Genesee Mut. Ins. Co. v. Moynihen, 5 How. Pr. 321. Followed, 6 How. Pr. 321, 324. Genet v. Mayor, &o., of New York, 76 N. Y. 625. Distinguished, 60 How. Pr. 488. Genet v. .Sawyer, 61 Barb. 211. Fol- lowed, 5 Hun 539 ; 7 Id. 440. Gerard v. Prouty, 34 Barb. 454. Af- firmed, 41 N. Y. 619. Geraty v. Kein, 13 Hun 313. Kb VERSED, 20 Alb. L. J. 274. Gere v. Gundlach, 57 Barb. 13. Dis- tinguished, 84 N. Y. 618. Gere v. Supervisors of Cayuga Co. 7 How. Pr. 255. See 12 How. Pr. 50, 54. German Bank v. Edwards, 53 N. Y, 541. Distinguished, 9 Hun 284, 285. German Liederkranz v. Schiemann. 25 How. Pr. 388. Contra, 24 How. Pr. 357 Germond v. Germond, 6 Johns. Ch 347. Distinguished, 61 N. Y. 403. Germond v. Jones, 2 Hill 569. Dis- tinguished, 4 Bedf. 156. Explained, 50 N. Y. 436. Gerould v. Wilson, 16 Hun 530. Af- firmed, 81 N. Y. 573. Getty V. Binsse, 49 N. Y. 385. Ap- proved, 1 Thomp. & C. 646. Distinguished, 4 Hun 526. Getty V. Devlin, 70 N. Y. 504. Fol- lowed, 23 Hun 590, 593. Getty V. Hudson River R. R. Co., 8 How. Pr. 177. Overruled, 14 How. Pr. 184, 186. Getty v. Spaulding, 1 Hun 115. Ap- peal DISMISSED, 58 N. Y. 636. Gibson v. Haggerty, 37 N. Y. 555. Ex- plained, 6 Fed. Bep. 220. Not applicable, 41 N. Y. 219. Gihon V. Stanton, 9 N. Y. 476. Limited, 46 Superior 534. Gilbert v. Beach, 5 Bosw. 445. Be- viEWED, 5 Bosw. 454. Gilbert v. Bulkley, 1 Duer 668. Fol- lowed, 20 How. Pr. 18, 19. Gilbert v. Crawford, 46 How. Pr. 222. OvEBBULBD, 65 Barb. 465. Gilbert v. Knox, 52 N. Y. 125. Ee- viEWED, 4 Bedf. 261. GUbert v. North American Fire Ins. Co., 23 Wend. 43. Limited, 26 N. Y. 483, 491. GUbert v. Priest, 63 Barb. 339. Be- VBBSED, 65 Barb. 444. Criticised, 47 Ind. 37. Followed, 48 Cal. 452. Gilbert v. Sheldon, 13 Barb. 623. Ques- tioned, 36 Barb. 446. Gilbert v. "Wiman, 1 N. Y. 550. Ex- plained, 83 N. Y. 61. Gilchrist v. Comfort, 34 N. Y. 235. Followed, 68 N. Y. 226; 2 Hun 544; 5 Thomp. & C. 142. GUdersleeve v. Board of Education, 17 Abb. Pr. 201. See 44 Superior 53. Gile V. Libby, 36 Barb. 70. Followed, 2 Daly 200. Giles V. Comstook, 4 N. Y. 270. In POINT, 43 Mich. 201. Giles V. Dugro, 1 Duer 331. Approved, 43 Superior 320. Gilhooley v. "Washington, 4 N. Y. 217. Not applicable, 8 Mo. App. 335. Gill V. McNamee, 42 N. Y. 44. Distin- guished, 81 N. Y. 623, 624. Gilleland v. Failing, 5 Den. 308. Fol- lowed, 13 Vr. (N. J.) 524. Gillespie v. Broas, 23 Barb. 370. Fol- lowed, 5 Thomp. & C. 705. Gillespie v. Brooks, 2 Bedf. 349. Fol- lowed, 4 Bedf. 434. CASES CRITICISED. 339 Gillespie v. Thomas, 15 Wend. 464. Beviewed, 7 Bradw. (111.) 478. Gillespie v. Torrance, 25 N. Y. 306 ; 4 Bosw. 36. DiSTiNGtrisHED, 60 N. Y. 150. Followed, 30 Wis. 642. Gillet V. Moody, 3 N. Y. 479. Over- KTJLED, 17 N. Y. 521. GiUett V. Phillips, 13 N. Y. 113, 116. See 16 How. Pr. 95, 96. Gillett V. Stanley, 1 Hill 121. Over- BULED, 2 Barb. 340. Gillies V. Lent, 1 Abb. Pr., n. s., 455. See 1 Lans. 300 ; 2 E. D. Smith 90. Gillig V. Maass, 28 N. Y. 191. Distin- GTOSHED, 61 N. Y. 111. Gillihan v. Spratt, 8 Abb. Pr., ir. s., 13. Reviewed, 3 Daly 440 ; 41 How. Pr. 27. GiUis V. Space, 63 Barb. 177. Fol- lowed, 5 Hun 649. GUman v. Bedlngton, 4 Hun 640. Criticised, 60 How. Pr. 258 n. GUmartin v. Smith, 4 Sandf. 684. Fol- lowed, 9 How. Pr. 263, 264. GUmore v. Jacobs, 48 Barb. 336. Over- KULED, 5 Daly 17, 18. Ginther v. Richmond, 18 Hun 232, 234. Approved, 84 N. Y. 391. Glacius V. Black, 50 N. Y. 145, 148. Followed, 42 Superior 256. Glenney v. Stedwell, 64 N. Y. 120. Followed, 12 Hun 125. Glenny v. Hitohins, 4 How. Pr. 98. Followed, 6 How. Pr. 361, 364. Contra, on question of demurrer, 5 N. Y. 357. See 5 How. Pr. 473 ; 6 Id. 86. Glentworth v. Luther, 21 Barb. 145. Followed, 83 N. Y. 382, 384. Glentworth v. Mount, 17 Abb. Pr, 15. Contra, 28 How. Pr. 224 n. Glover v. Haws, 19 Abb* Pr. 161 n. Distinguished, 83 N. Y. 114. Glover V. Thomas, 4 Thomp. & C. 415. Eeveksed, 63 N. Y. 642. Groddard v. Merchants' Bank, 4 N. Y. 147. Criticised, 7 Abb. Pr., n. s., 149. Godfrey v. Moser, 3 Hun 218. Appeal dismissed, 64 N. Y. 633 ; and see 66 N. Y. 250. Grodillot v. Hazzard, 44 Superior 427. Afeirme^, 81 N. Y. 263. Goelet V. McManus, 1 Hun 306. Af- riRMED, 59 N. Y. 634. Goll V. Hinton, 8 Abb. Pr. 120. Ap- proved, 43 Barb. 187. Eeconciled, 8 Abb. Pr., N. s., 369, 379. Gonzales v. New York, &c., R. R. Co., 6 Eobt. 297. Ebveesed, 38 N. Y. 440. Gonzales v. New York, &c., R. R. Go., 1 Sweeny 506. Eevebsed, 39 How. Pr. 407. Goodale v. Finn, 2 Hun 151. Not fol- lowed, 61 How. Pr. 367. Goodale v. Tuttle, 29 N. Y. 459. Dis- approved, 71 Mo. 252, 253. Goodale v. Walsh, 2 Thomp. & C. 311. Distinguished, 10 Hun 506, 508. Goodhue v. Berrien, 2 Sandf. Ch. 630. Distinguished, 83 N. Y. 51. Gooding v. M'Allister, 9 How. Pr. 123. Concurred in, 9 How. Pr.' 382. Con- tra, Id. 342. Goodman v. Niblock, MSB. U. S. Sup. Ct: Followed, 24 Hun 293. Goodrich v. Downs, 6 Hill 438. Dis- approved, 7 Neb. 433. Goodrich v. Dunbar, 17 Barb. 644. Followed, 23 How. 508, 511, 512, 513. Not followed, 61 Id. 367. Contra, 20 Id. 311. &6 2 Daly 224. Goodrich v. Russell, 42 N. Y. 177. Followed, 9 Hun 512. Goodsell v. Phillips, 49 Barb. 353. Fol- lowed, 5 Hun 420. Goodwin v. Conklin, 6 Week. Dig. 131. Modified, 12 Week. Dig. 317. Goodwin v. Mass. Mut. Life Ins. Co., 73 N. Y. -480. Followed, 80 N. Y. 108, 112. Gordon v. Gaffey, 11 Abb. Pr. 1. Ap- proved, 29 How. Pr. 67. Gordon v. Hostetter, 37 N. Y. 99. Fol- lowed, 37 Superior 395. Gorham v. Gale, 7 Cow. 739. Ee- viEWED, 71 Me. 417. Goshen, &c.. Turnpike Road v. Hur- tin, 9 Johns. 217, 218. Distinguished, 11 Johns. 100. Gtotendorf v. Goldschmitt, MSS. Opin., 1880. Distinguished, 1 Civ. Pro. 157. Gouge V. Roberts, 53 N. Y. 619. Fol- lowed, 37 Superior 433. Gould V. Banks, 8 Wend. 562. Limited, 24 N. Y. 367. Gould V. Carpenter, 7 How. Pr. 97, ' Followed, 10 How. Pr. 451. Gould V. Ohapin, 5 How. Pr. 358. Con- tra, 8 How. Pr. 463. Gould V. Chapin, 20 N. Y. 259. Distdt- ouiSHED, 2 Trans. App. 183. Limited, 44 N. Y. 507, 508. Gould V. Conway, 59 Barb. 361. Dis- tinguished, 7 Hun 612, 615. Gould V. Gould, 36 Barb. 270. Af- firmed, 41 N. Y. 619. Gould V. Gould, 29 How. Pr. 441. Fol- lowed, 62 Barb. 537. Gould V. Hill, 2 Hill 623. Commented ON, 1 E. D. Smith 115. Gould V. James, 6 Cow. 369. Fol- lowed, 1 Thomp. & C. 415. 340 CASES CEITICISED. Gould V. MoOarty, 11 N. Y. 575. See 13 How. Pr. 427. Gould V. Moring, 28 Barb. 444. Disap- . PBOVED, 8 Hnn 111. Gould V. Boot, 4 Hill 554. Explained, 5 Hill 568. Gould V. Town of Oneonta, 71 N. Y. 298. Appeoted, 83 N. Y. 106. Gould V. Town of Sterling, 23 N. Y. 456. Followed, 69 Barb. 446 ; 1 Thomp. & C. 134. Goulding v. Davidson, 26 N. Y. 604. Distinguished, 1 Lans. 101. Gouverneur v. Lynch, 2 Paige 300. OVEBEULED, 61 N. Y. 89. Governors of Alms House, &o., v. American Art Union, 7 N. Y. 228. Ee- viEWED, 72 Mo. 164. Gowdy V. Poullain, 2 Hun 218. Ex- plained AND EECONCILED, 4 Hun 561. Grace v. 'Wilber, 10 Johns. 453. Eb- TEESED, 12 Johns. 68. Graduates of Columbia College, Matter of, 11 Abb. Pr. 301. Distin- guished, 67 N. Y. 121. Graham v. First Nat. Bank of Nor- folk, 20 Hun 326. Apfiemed, 84 N. Y. 393. Graham v. Machado, 6 Duer 514. CONTEA, 2 Abb. Pr. 402. Gtraham v. MiUiman, 4 How. Pr. 435. See 5 How. Pr. 435, 436. Graham v. Phcenix Ins. Co., 12 Hun 446. See 17 Hun J 56. Graham v. Stone, 6 How. Pr. 15. Ap- peoved, 2 Eobt. 715. Followed, 6 How. Pr. 401. OVEEEULED, 11 N. Y. 350. CONTEA, 10 How. Pp. 81. Gram v. Cadwell, 5 Cow.*489. Distin- guished, 82 N. Y. 591, 596. See Id. 599. Gram v. Prussia, &c., German So- ciety, 36 N. Y. 161. Followed, 4 Hun 225 ; 6 Thomp. & C. 545. Grand Bapids, Isaacs V. Third Ave. R. R. Co., 47 N. Y. 122. Distinguished, 5 Daly 224 ; 62 N. Y. 184 ; 40 Superior 368. Ives V. Holden, 14 Hun 402. Distin- guished, 60 How. Pr. 193. Ives V. Miller, 19 Barb. 196. Followed,, 3 Lans. 187. Not followed, 51 N. Y. 332. J. Jaokett V. Judd, 18 How. Pr. 385. See 9 How. Pr. 479 ; 20 Id. 488, 489. Jackson v. Andrews, 59 N. Y. 247. Followed, 43 Superior 461. Jackson v. Edwards, 7 Paige 386. Fol- lowed, 11 Hun 222, 225. Jackson v. Fassitt, 17 How. Pr. 453. Reversed, 33 Barb. 645. See 18 How. Pr. 27 ; 27 Id. 133, 135. Jackson v. Harder, 4 Johns. 202, 212. Approved, 8 Mo. App. 440. Jackson v. Jackson, 1 Johns. 424. Ee- viEWED, 25 Mich. 263. Jackson v. Rayner, 12 Johns. 291. Ex- plained, 2 Den. 45. Jackson v. Second Ave. R. R. Co., 47 N. Y. 274. Followed, 44 Superior 4. Jackson v. Sheldon, 9 Abb. Pr. 127. QVEBEULED, 34 Barb.'565; 25 N. Y. 492. Jackson v. Smith, 16 Abb. Pr. 201. Fol- lowed, 45 Superior 92. Jackson v. Van Slyke, 44 Barb. 116 n. Beversed, 52 N. Y. 645. Jackson, d. Baxtlett, v. Henry, 10- Johns. 185. LmiTED, 5 Hill 272. Jackson, d. Beekman, v. Sellick, 8 Johns. 202. Followed, 37 Superior 171. Jackson, d. Belden, v. Thomas, 16 Johns. 293. Followed, 37 Superior 171. Jackson, d. Bonnell, v. Sharp, 9 Johns. 163. Followed, 37 Superior 171. Jackson, d. Bonnell, v. Wheeler, 10 Johns. 164. Explained and followed, 12 Johns. 490. Jackson, d. Burhans, v. Blanshan, 3 Johns. 292, 298. Considered and disap- proved, 24 Hun 28. iSee 6 Johns. 54. 350 CASES CRITICISED. Jackson, d. Decker, v. Merrill, 6 Johns. 185. Appboved, 11 Johns. 348. Jackson, d. De Forest, v. Ramsay, 3 Cow. 75. Followed, 23 Mich. 250. Jackson, d. Dickson, -v. Stanley, 10 Johns. 133. Distinguished, 12 Johns. 82, 83. Jackson, d. G-ansevoort, v. Parker, 3 Johns. Cas. 124. Followed, 84 N. Y. 44. Jackson, d. G-iUiland, v. 'Woodruff, 1 Cow. 276. Followed, 37 Superior 171. Jackson, d. Hyer, v. Van Valken- "bin-gh., 8 Cow. 260. Distinguished, 66 N. Y. 161. Obsolete, 83 N.,Y. 219. Jackson, d. Miller, v. Hawley, 11 Wend. 182. Followed, 2 Lans. 503. Jackson, d. Ireland, v. Htill, 10 Johns. 481. Appeoved, 52 Wis. 190. Disapproved, 50 Miss. 222. Jackson, d. Kane, v. Sternbergh, 1 Johns. Cas. 153. Approved, 11 Johns. 97. Jackson, d. Kenyon, v. Virgil, 3 Johns. MO. Followed, 8 Abb. N. Cas. 246. Jackson, d. Lansing, v. Ija'w, 5 Cow. ■248, 249 ; 9 Id. 641. Distinguished, 65 N. Y. 320. Jackson, d. Mackay, v. Slater, 5 Wend. 295. Explained and limited, 5 Hill 272. Jackson, d. Mancius, v. Lawton, 10 Johns. 23. Followed, 12 Johns. 83. Jackson, d. Martin, v. Van Ant-werp, 1 Wend. 295. See 18 Wend. 674. Jackson, d. M'Orea, v. Bartlett, 8 Johns. 361. Followed, 37 Ind. 177. Jackson, d. Merrick, v. Post, 15 Wend. 588. Explained, 2 Hill 650. Jackson, d. Merritt, v. G-umaer, 2 Cow. 552. In point, 52 Md. 610. Jadkson, d. M'Fail, v. Crawford, 12 Wend. 533. Explained, 1 Hill 130. Jackson, d. New Loan OfQcers of Hensselaer Co., v. Bull, 1 Johns. Cas. 81, 90. Followed, 12 Johns. 204. Jackson, d. Rector, &c., of St. Oeorge's Ohxacdh, v. Nestles, 3 Johns. 115, 124. Followed, 37 Superior 171. Jackson, d. Rogers, v. Clark, 7 Johns. 217. Followed, 3 Xhomp. & C. 210. Jackson, d. Smith, v. Wilson, 3 Johns. €as. 295. Approved, 11 Johns. 4. Jackson, d. Sufifern, v. McOonnell, 19 Wend. 175, 177. Followed, 84 N. Y. 44; 37 Superior 171. Not authority, 37 Ind. 398, • 404. Jackson, d. Swartwout, v. Johnson, 5 Cow. 74. Overruled, 9 Cow. 530. Jackson, d. Townaend, v. Bull, 10 Johns. 148, 151. Approved, 72 Mo. 618. Jackson, d. Varick, v. Waldron, 13 Wend. 178. Oveeeulbd, 19 N. Y. 384. Jackson, d. Waldron, v. Welden, 3 Johns. 283. Limited, 5 Cow. 123. Jackson, d. Wliitman, v. Douglas, 8 Johns. 286. F6llowed, 37 Superior, 171. Jackson, d. Winthrop, v. Ingraham, 4 Johns. 163, 182. Followed, 12 Johns. 367. Jackson, d. Wright, v. Dieffendorf, 3 Johns. 269, 270. Approved, 11 Johns 164. Jackson, d. Yates, v. Hathaway, 15 Johns. 447, 453. Explained, 7 Barb. 297. Jaoobowsky v. People, 6 Hun 524. Followed, 10 Hun 137, 139, 140. Jacobs V. Hogan, 15 Hun 197. Ke- ■ VERSED, 24 Hun VI. Jacobs V. Hogan, 7 Week. Dig. 349. Eeversed, 12 Week. Dig. 177. Jacobs V. Morange, 1 Daly 523. Re- versed, 47 N. Y. 57. Jaeger v. Kelley, 52 N. Y. 274. Eeoon- ciLED and approved, 73 Ind. 477. Jagoe V. Alleyn, 16 Barb. 580. Contra, 11 How. Pr. 248, 250. James v. Burchell, 7 Daly 531. Af- firmed, 82 N. Y. 108. James v. Cowing, 17 Hun 256. Ee- versed, 82 N. Y. 449. James v. James, 4 Paige 115, 117. Ex- plained, 3 Barb. Ch. 76; 45 N. Y. 258. James v. Morey, 2 Cow. 246, 248. Ee- viEWED, 47 Conn. 494, 495. Jansen v. Ball, 6 Cow. 628. Followed, 4 Thomp. & C. 76. Jaques v. Trustees of the Meth. Bpis. Church, 17 Johns. 548. Disapproved, 4 W. Va. 252. Jarvis v. SewaU, 40 Barb. 449. Distin- guished, 82 N. Y. 83, 87. Jefferson County Bank v. Chapman, 19 Johns. 322. Distinguished, 82 N. Y. 11, 23. Jeffres v. Cochrane, 47 Barb. 557. Af- firmed, 6 Alb. L. J. 198. JefEres v. Cochrane, 48 N. Y. 671. Dis- tinguished, 57 N. Y. 631. Jenkins v. Union Turnpike Co., 1 Cai. Cas. 86. Followed, 11 Johns. 100. Jenkins v. Waldron, 11 Johns. 114. Followed, 5 Lans. 214. Jennings, Exp., 6 Cow. 518. Approved, 83 N. Y. 185. Jessup V. Carnegie, 44 Superior 260. Eeversed, 80 N. Y. 442. Jetter, Matter of, 78 N. Y. 601. Fol- lowed, 80 N. Y. 642. Jetter v. New Tfork, &c., R. R. Co., 2 Abb. App. Dec. 458. Limited, 84 N. Y. 491. Jetter v. New York, &c., R. R. Co., 2 Keyes 154. Followed, 38 Superior 133. CASES CRITICISED. 351 JeweU V. "Wright, 18 Abb. Pr. 80. Ckit- loiSED, 9 Abb. Pr., n. s., 397. Jewell V. "Wright, 30 N. Y. 259. Ap- proved, 58 How. Pr. 24, 26, 27, 28. Criti- cised, 9 Abb. Pr., n. s., 397 ; 4 Thomp. & C. 184. Disapproved, 2 Abb. N. Cas. -300, 302. Distinguished, 81 N. Y. 566, 570. Followed, 7 Abb. N. Cas. 66, 71. Be-afmrmed, 20 Alb. L. J. 347. Contra, 1 Sheld. 228. Je-wett V. Keenholts, 16 Barb. 193. Distinguished, 23 Hun 119, 122. Jewett V. Woodward, 1 Edw. Ch. 195. Distinguished, 61 How. Pr. 72; 84 N. Y. 530. John and Cherry Streets, Matter of, 19 Wend. 659. Beviewed, 1 Neb. 33. Johnson v. Albany, &o., R. R. Co., 40 How. Pr. 193. Beversed, 54 N. Y. 416. Johnson v. Banlfe of North America, i Eobt. 554. Be-asserted, 6 Abb. Pr., n. s., 234, 239 ; 6 Bobt. 413. Johnson v. Burrell, 2 Hill 238. Contra, 1 Sandf. 278. Johnson v. Conger, 14 Abb. Pr. 195. DlSTENGUISHBD, 77 N. Y. 165. Johnson v. Elwood, 15 Hun 14. Be- versed, 82 N. Y. 362. Johnson v. Fitzhugh, 3 Barb. Ch. 360. Not followed, 6 Fed. Bep. 61. , Johnson v. Gilbert, 4 HUl 178. Fol- lowed, 80 N. Y. 269, 271. Johnson v. Hicks, 1 Lans. 150. Com- mented ON, 10 Abb. Pr., N. s., 307. Johnson v. Hudson River R. R. Co., 2 Sweeney 298. Beversed, 6 Alb. L. J. 171. Johnson v. Kemp, 11 How. Pr., 186. Followed, 16 How. Pr. 97, 100. Contra, 13 How. Pr. 270, 275. Johnson v. Nat. Bank of Glovers- ville, 74 N. Y. 329. Approved, 82 N. Y. 291, 302. Johnson v. New York Central R. R. Co., 33 N. Y. 610. Followed, 39 How. Pr. 127, 135. Johnson v. Oppenheim, 55 N. Y. 280, 291. Followed, 38 Superior 383. Johnson v. Paul, 14 How. Pr. 454. Con- tra, 17 How. Pr. 97, 99. Johnson v. "Weed, 9 Johns. 310. Lim- ited, 11 Johns. 412. Johnson v. Whitlock, 12 How. Pr. 571. Approved, 15 How. Pr. 425, 426. Followed, 13 How. Pr. 149. Johnson v. "Whitlock, 13 N. Y. 344. Followed, 80 N. Y. 146, 149, 151. Obsolete, 46 N. Y. 263. Johnson, d. Anderson, V. Anderson, 4 Wend. 474. In point, 1 McCrary (U. S.) 279. Johnston v. Christopher St., &c., R. R. Co., 1 Abb. N. Cas. 75 n. Contra, 1 Abb. JSf. Cas. 63, 75 n. Johnston v. Johnston, 1 Eobt. 642. Contra, 22 How. Pr. 500. Jones V. Benedict, 17 Hun 128. Af- firmed, 83 N. Y. 79. Jonas V. East Society of the M. B. Church at Rochester, 21 Barb. 161. Fol- lowed, 3 Lans. 255. Jones V. Fowler, 1 Sweeney 5. Fol- lowed, 35 Superior 223. Jones V. Jones, 18 Hun 438. Appeal dismissed, 81 N. Y. 35. Jones V. Kent, 45 Superior 66. Be- versed, 80 N. Y. 585. Jones V. Lawlin, 1 Sandf. 722. Contra, 8 How. Pr. 313. See Id. 163. Jones V. JMerchants' Bank of Albany, 4 Bobt. 221. Dissenting opinion, 6 Bobt„ 162. Jones V. Norwood, 37 Superior 276. Affirmed, 66 N. Y. 616. Jones V. People, 20 Hun 545. Af- firmed, 81 N. Y. 637. Jones V. Phelps, 2 Barb. Ch. 440. Fol- lowed, 43 Superior 335. Jones V. Savage, 6 Wend. 658. See 2 Disn. (O.) 479. Jones V. Savage, 10 Wend. 621. Fol- lowed, 48 How. Pr. 431. Jones V. Seward, 40 Barb. 563; 41 Id. 269 ; 26 How. Pr. 433. Contra, 28 How. 193, 196, 197. Jones V. Seligman, 16 Hun 230. Af- firmed, 81 N. Y. 190. Jones V. Smith, 3 Hun 351 ; 5 Thomp. & C. 490. -See 73 N. Y. 205. Jones V. Terre Haute, &c., R. R. Co., 29 Barb. 353. See 57 N. Y. 196. Jones V. "Van Epps, 1 How. Pr. 105. Applied, 4 How. Pr. 27. Jones V. "Walker, 63 N. Y. 612. Dis- tinguished, 15 Hun 8. Jordan v. "Van Epps, 19 Hun 526. Af- firmed, 24 Hun VI. Judah V. Randal, 2 Cai. Cas. 324. In POINT, 54 Cal. 451. Judd Linseed, &c.. Oil Co. v. Hub- bell, 76 N. Y. 543. Not in point, 24 Hun 445, 446. Judd V. O'Brien, 21 N. Y. 186. Fol- lowed, 4 Thomp. & C. 146. Judson V. Gibbons, 5 Wend. 224. Dis- tinguished, 22 Hun 407. Judson V. Gray, 11 N. Y. 408. Distin- guished, 83 N. Y. 48. Judson V. "Wass, 11 Johns. 525. Fol- lowed, 12 Johns. 192. Juliand v. Rathbone, 39 N. Y. 369. Abrogated, 52 How. Pr. 157, 161 ; 67 N. Y. 203. Applied, 16 Abb. Pr., n. s., 313, 316. Followed, 3 Hun 595 ; 6 Thomp. & C. 305. Beviewed, 36 Ark. 416, 420. 352 CASES CKITICISED, Julke V. Adam, 1 Eedf. 454. Distin- guished, 3 Kedf. 385, 404. Jumel V. Jumel, 7 Paige 591. Distin- GT3ISHED, 3 Eedf. 497. Justh V. Nat. Bank of the Oommon- •wealth, 56 N. Y. 478. Explained, 61 How Pr. 175. Followed, 84 N. Y. 435. Justice V. Lang, 42 N. Y. 493. Fol- lowed, 42 Superior 115. Limited, 52 N. Y. 323. Justice V. Lang, 52 N. Y. 323. Fol- lowed, 42 Superior 115. K. Kain v. Delano, 11 Abb. Pr., ir. s., 29. Followed, 37 Superior 208. Kain v. Smith, 11 Hun 552. Eeveesed, 80 N. Y. 458. Kalt V. Lignot, 3 Abb. Pr. 190. Ex- plained, 8 Abb. Pr. 35, 36. See 2 Hilt. 270. Kamena v. Warner, 15 How. Pr. 5. Eeveksed, 6 Duer 698. Kamlah v. Salter, 1 Hilt. 558. Contea, 6 Duer 687. Kamp V. Kamp, 44 How. Pr. 505. Overruled, 59 N. Y. 212. Kamp V. Kamp, 46 How. Pr. 143. Oveb- EULED, 59 N. Y. 212. Kamp V. Kamp, 37 Superior 241. Ee- veesed, 10 Alb. L. J. 384. Kane v. Gott, 24 Wend. 641. Distin- guished, 60 Barb. 9. Kane v. Kane, 3 Edw. 389. Distin- guished, 61 N. Y. 406. Kasson v. People, ex rel. Bease, 44 Barb. 347. Followed, 35 Superior 1. Kasson v. Smith, 8 Wend. 437. Distin- guished, 18 N. Y. 333. Kattenstroth v. Astor Bank, 2 Duer 632. Qualified, 13 Abb. Pr., n. s., 325, 332. Kay V. "WTiittaker, 44 N. Y. 566. Criti- cised, 55 How. Pr. 413. Ebconciled, 24 Hun 349. Kearney's Case, 13 Abb. Pr. 459. Con- tea, 13 How. Pr. 173 ; 14 Id. 465. Keefe v. People, 40 N. Y. 348. Fol- lowed, 41 N. Y. 4; 80 Id. 514. Keenan v. Dorflinger, 19 How. Pr. 153. Contra, 11 How. Pr. 452. Keene v. Clarke, 5 Eobt. 38. Disap- proved, 40 How. Pr. 298. Keeny v. Home Ins. Co., 8 Thomp. & C.478. -See 71 N. Y. 396. Keiley v. Dusenbury, 42 Superior 238. Affirmed, 77 N. Y. 597. Keiley v. Spier, 52 How. Pr. 277. Ee- VERSED, 12 Hun 70. Kellam v. McBlinstry, 69 N. Y. 264. Approved, 82 N. Y. 476, 482. Keiley v. Mayor, &o., of Brooklyn, 4 HiU 263. Distinguished, 81 N. Y. 454, 461. Keiley v. People, 55 N. Y. 665. Fol- lowed, 48 How. Pr. 518 ; 3 Hun 213. Kelly's Application, 10 Abb. Pr. 208. Followed, 4 Abb Pr., n. s., 11, 12. Kelly, Matter of, 59 N. Y. 595. Distin- guished, 82 N. Y. 161, 165. Kelly V. Archer, 48 Barb. 68. Fol- lowed, 54 How. Pr. 28. Kelly V. Christal, 16 Hun 242. Af- firmed, 81 N. Y. 619. Kelly V. Crapo, 45 N. Y. 86. Eeversed^ 16 Wall. (U. S.) 610. OvEREUiED, 7 Abb. N. Cas. 93. Kelly V. Mayor, &o., of New York, 11 N. Y. 432. Followed, 38 Superior 197. Kelly V. New York, &o., R'y Co., 19' Hun 363. Affirmed, 81 N. Y. 233. Kellogg V. Adams, 39 N. Y. 28. Dis- tinguished, 84 N. Y. 633. Kellogg V. Kellogg, 6 Barb. 116. Dis- tinguished, 64 N. Y. 294. Kellogg V. Richards, 14 Wend. 116.^ Not applicable, 31 N. Y. 500. Kellogg V. Schuyler, 2 Den. 73. Ex- plained, 3 N. Y. 216. Questioned, 3 Barb.. 429. Kellogg v. Sweeney, 1 Lans. 397. Modified, 46 N. Y. 291. Kellum, Matter of, 52 N. Y. 517. Ee- viBWED, 4 Eedf. 168. Kellum V. Knechdt, 17 Hun 583. Ap- peal dismissed, 78 N. Y. 484. Kelsey v. Campbell, 38 Barb. 238. Ex- "• PLAINED, 40 Barb. 433. Kelsey v. "Ward, 38 N. Y. 83. Af- firmed, 41 N. Y. 619. Followed, 42 Supe- rior 8. Kelso V. Kelly, 1 Daly 419. Followed, 5 Abb. Pr., n: s., 112 ; 54 Barb. 531. Kelso V. Tabor, 52 Barb. 125. Ovee- EULED, 42 N. Y. 627, 643. Kemp V. Knickerbocker Ice Co., 51 How. Pr. 31. Ebversed, 69 N. Y. 45. Kempshall v. Bums, 4 Hill 468. Ex- plained, 5 HiU 523. Kempshall v. Stone, 5 Johns. Ch. 193. Distinguished, 61 N. Y. 156. OASES CRITICISED. 353 Kendall v. Niebuhr, 45 Superior 542. Affirmed, 46 Superior 544. Kendenburg v. Morgan, 18 How. Pr. 469. Followed, 22 How. Pr. 190, 191. Kennedy v. City of Troy, 14 Hun 308. KEVERSEDi, 19 Alb. L. J. 498. Kennedy v. Kennedy, 73 N. Y. 365; 374. Distinguished, 60 How. Pr. 152. Kennedy v. York, 79 N. Y. 351. Mayor, &c., of New 361. Followed, 84 N. Y. Kennedy v. People, 39 N. Y. 245. Dis- approved, 30 Wis. 428, 437. Followed, 80 N. Y. 500, 514. Kennedy v. St. Lawrence County Mutual Ins. Co., 10 Barb. 285, 289. Criti- cised, 55 How. Pr. 318, 321. Kent V. Harcourt, 33 Barb". 491. Fol- lowed, 37 Superior 3. Kent V. Hudson River B. R. Co., 22 Barb. 278. Disregarded, 2 Sweeney 677. Kent V. New York Central R. R. Co., 12 N. Y. 628. Eeconoiled, 25 Kan. 207. Kent V. Quicksilver Mining Co., 78 N. Y. 159, 184. DiSTiNGtnsHED, 84 N. Y. 184. Kent V. 'Walton, 7 Weud. 256. Dottbted, I Hill 612. Kent V. Welch, 7 Johns. 258. Approved, II Johns. 123. Kentish v. Tatham, 6 Hill 372. Fol- lowed, 2 Thomp & C. 468. Kenyon v. People, 26 N. Y. 203. Ceiti- oised, 2 Thomp. & C. 410. Kemochan v. New York Bowery Fire Ins. Co., 17 N. Y. 428. Limited, 55 N. Y. 356. Kerr v. Blodgett, 16 Abb. Pr. 137 ; 25 How. Pr. 303. Affirmed, 6 Alb. L. J. 198. Kerr v. Hays, 35 N. Y. 331. 58 N. Y. 651. Followed, Kerr v. Mount, 28 N. Y. 659. Abro- gated, 68 N. Y. 370, 374. Criticised, 5 Lans. 110. Distinguished, 54 N. Y. 164. Fol- lowed, 35 Superior 1. Kerr v. Purdy, 50 Barb. 51 N. Y. 629. 24. Beversbd, 456. Ke- Ketchell v. Burns, 24 Wend VIEWED, 1 Flipp. (U. S.) 79. Ketchum v. City of Buffalo, 14 N. Y. 356. Followed, 45 Ind. 250, 257. Ketchum v. Evertson, 13 Johns. 359. Distinguished, 52 Md. 681. - Keutgen v. Parks, 2 Sandf. 60. Over- ruled, 3 Thomp. & C. 361. Keyes v. Brush, 2 Paige 311. Fol- lowed, 1 New Mex. T. 61, 63. Keyser v. Kelly, 43 Superior 22. Ap- plied, 57 How. Pr. 373. Kiersted v. Orange, icta disap- proved, 2 Abb. N. Caa. 438, 439. Distin- ■gtjished, 23 Hun 434, 437. Eejected, 115 Mass. 204, 216. Lancaster v. Boorman, 20 How. Pr. 421. See 20 How. Pr. 441. Landers v. Staten Island B. B. Co., 13 Abb. Pr., n. s., 388. Reversed, 14 Abb. Pr., N. B., 346. Landers v. Staten Island B. E. Co., 14 Abb. Pr., n. s., 346. Followed, 37 Supe- rior 93. See 15 Abb. Pr., N. s,, 346, 347. Landers v. Staten Island B. B. Co., 53 N. Y. 450. Commented on, 7 Daly 197. DisTiNGinsHED, 61 How. Pr. 333. Landon v. Mayor, &o., of Ne-w York, 49 How. Pr. 218 ; 39 Superior 467. Distin- guished, 6 Hun 507. Lane v. Gilbert, 9 How. Pr. 150. See 14 How. Pr. 47, 50, 52. Lane v. Morse, 6 How. Pr. 394. Distin- GxnsHED, 9 Abb. N. Cas. 461. Lanergan v. People, 50 Barb. 266. Re- versed, 6 Park. Cr. 209. Lange v. Benedict, 48 How. Pr. 465. Re- versed, 8 Hun 362 ; 73 N. Y. 12. Langdon v. Wilkes, 1 Code, n. s., 10. Contra, 5 Sandf. 656. Langley v. "Warner, 3 How. Pr. 363. See 3 How. Pr. 368. Langlois v. Buffalo, &c., B. B. Co., 19 Barb. 364. Apeirmed, 19 Barb. 370 m. Lang-worthy v. Os-wego, &c., Ins. Co., 8 Week. Dig. 458. Appibmed, 12 Week. Dig. 254. Laning v. Ne-w York Central B. B. Co., 49 N. Y. 521, 531. Approved, 1 Thomp. & C. 529 ; 13 Vr. (N. J.) 471. Distinguished, 64 N. Y. 9. Followed, 3 Thomp. & C. 255, 257. Lansing v. Coley, 13 Abb. Pr. 272. See 44 How. Pr. 300. Lansing v. Easton, 7 Paige 364. Dis- tinguished, 3 Eedf. 464. Lansing v. Lansing, 45 Barb. 182, 191. Followed, 2 Hun 526, 530. Lansing v. Lansing, 8 Johns. 454. Ap- proved, 11 Johns. 28. Lansing v. Lansing, 18 Johns. 502, 503. Explained and qualified, 4 Cow. 445. Lansing v. Mickles, 1 How. Pr. 248. Overruled, 2 How. Pr. 276. Lantz V. Buckingham, 11 Abb. Pr., n. s., 64. Approved, 59 How. Pr. 437. Lanuse v. Barker, 10 Johns. 312. Re- versed, 3 Wheat. (U. S.) 101. Lapbaxn -v. Bice, 63 Barb. 485. Af- firmed, 55 N. Y. 472. Lara-way v. Perkins, 10 N. Y. 371. Followed, 83 N. Y. 395. Lamed v. Hudson, 57 N. Y. 151. Dis- tinguished, 64 N. Y. 431. Lasher v. North-western Nat. Ins. Co., 55 How. Pr. 318, 322. Reversed, 18 Hun 98. Lasher v. North-western Nat. Ins. Co., 55 How. Pr. 324. Reversed, 57 How. Pr. 222. 356 CASES CEITICISED. Lasher v. Williamson, 55 N. Y. 619. DiSTiNGnisHED, 60 N. Y. 150. Latham v. Richards, 12 Hun 360. Ap- peal DISMISSED, 72 N. Y. 607. Lattimer v. Liverraore, 72 N. Y. 174. Followed, 61 How. Pr. 308. La-w V. McDonald, 9 Hun 23, 28. Fol- lowed, 23 Hun 82, 85. La-wrence v. Bank of the Republic, 35 N. Y. 320. Followed, 50 N. Y. 83. Lawrence v. Barker, 5 "Wend. 301. Limited, 1 Hun 344, 348. Lawrence v. Brown, 5 N. Y. 394. Fol- lowED, 22 Hun 269. Lawrence v. Davis, 7 How. Pr. 354. Contra, 7 How. Pr. 97 ; 10 Id. 451 ; 12 Id. 26, 399 ; 22 Id. 470. Lawrence v. Embree, 3 Bradf. 364. OvEERtiLED, 2 Bedf. 434. Lawrence v. Farmers' Loan, &c., Co., 6 Duer 689. Disapproved, 1 Daly 452. Lawrence v. Parmers', &c.. Trust Co., 15 How. Pr. 57. Disapproved, 1 Daly 452. Lawrence v. Fox, 20 N. Y. 268. Dis- tinguished, 8 Hun 9 ; 40 N. Y. 432, 438 ; 55 Id. 273. Explained, 46 N. Y. 82, 92. Fol- lowed, 83 N. Y. 154 ; 84 Id. 514 ; 1 Thomp. & C. 465. Limited, 82 N. Y. 385, 387, 392. Reviewed, 47 N. Y. 237 ; 46 Superior 519, 521. Lawrence v. Kidder, 10 Barb. 641. Ap- proved, 39 Superior 307. LavTrence v. Lindsay, 7 Hun 641. See 70 N. Y. 566. Lawrence v. Miller, 16 N. Y. 235. Dis- TiNOmsHED, 1 Thomp. & C. 462. Lawrence v. Nelson, 21 N. Y. 158. Commented on, 6 Bosw. 627. Followed, 5 Bies. (U. S.) 441. Lawrence v. Wright, 2 Duer 673. Dis- approved, 4 Abb. Pr. 307, 308. Lavsrton v. Reil, 34 How. Pr. 465. Fol- lowed, 2 Hun 379 ; 4 Thomp. & C. 669. Layman v. WTiiting, 20 Barb. 559. Ap- proved, 27 Barb. 505. Leary's Case, 6 Abb. N. Cas. 43, 44. Disapproved, 84 N. Y. 441. Leavenworth v. Brookway, 2 Hill 201, 202. Followed, 36 Superior 180. Leavenworth v. Delafleld, 1 Cai. 566, 573. Distinguished, 11 Johns. 321, 333. Leavitt v. Blatchford, 5 Barb. 9. See 17 N. Y. 521. Leavitt v. De Launay, 4 Sandf. Ch. 281. Ebveesed, 4 N. Y. 364. Leavitt v. Palmer, 3 N. Y. 19. Ex- plained, 15 N. Y. 101, 180, 231. Questioned, 21 N. Y. 495. Leavitt v. Putnam, 3 N. Y. 494. Re- viewed, 71 Ind. 448. Leavitt v. Stanton, Hill & D. 413. Dis- cussed, 45 Superior 452. Leavitt v. Thompson, 56 Barb. 542. -See 41 How. Pr. 193. Le Oouteulx v. Board- of SupexTrisors. of Brie Co., 7 Barb. 249. Approved, 15 N. Y. 451. Ledwich v. MoKim, 53 N. Y. 307. Dis- tinguished, 2 Hun 467 ; 57 if . Y. 623. Lee V. Chadsey, 3 Abb. App. Dec. 43. Distinguished, 53 Iowa 630. Lee V. Dill, 39 Barb. 516. Appibmed, 41 N. Y. 619. Lee V. Selleck, 32 Barb. 522. Explained, 41 Barb. 599. Lee V. Stanley, 9 How. Pr. 272. Ap- proved, 16 How. Pr. 552, 561. Lee V. Village of Sa;ndy HiU, 40 N. Y. 451. Followed, 1 Thomp. & C. 539. Leeds v. Bowen, 1 Eobt. 10. Contra, 61 Barb. 534. See 5 Lans. 538. Lefevre v. Latson, 5 Sandf. 650. Con- tra, 6 How. Pr. 400. Lefevre v. Lefevre, 59 N. Y. 434. Dis- tinguished, 3 Kedf. 240, 243. Reviewed, 8 Abb. N. Cas. 122. Lefevre v. Lefevre, 2 Thomp. & C. 33ft. Reversed, 11 Alb. L. J. 67. Reviewed, 8 Abb. N. Cas. 122. Lefferts v. Brampton, 24 How. Pr. 257. Followed, 3 Daly 171. Lefferts v. Hollister, 10 How. Pr. 383. Approved, 23 How. Pr. 140, 144. Leflaer v. Field, 42 How. Pr. 420. Ap- peal DISMISSED, 47 N. Y. 407. Lefler v. Field, 52 N. Y. 621. Distin- guished, 57 N. Y. 428. Followed, 43 Su- perior 131. Legg V. Dorsheim, 19 Wend. 700. Nor APPROVED, 42 How. Pr. 481, 485. Leggett V. Bank of Sing Sing, 24 N. Y. 283. Distinguished, 59 N. Y. 102. Leggett V. Hunter, 19 N. Y. 445. Criti- cised, 53 N. Y. 245, 256. Followed, 42 Su- perior 238. Leggett V. Hyde, 58 N. Y. 272. Fol- lowed, 81 N. Y. 550, 555. Leggett V. Mott,4 How. Pr. 325. See 5 How. Pr. 435, 436. Leggett V. Postley, 2 Paige 599. Criti- cised, 9 Paige 580. Le Ghien v. Oouvemeur, 1 JohnB. Cas. 436. Commented on, 5 Den. 29. Followed, 60 How. Pr, 111. Leitch V. Hollister, 4 N. Y. 214. Dis- approved, 15 N. Y. 118, 176. Leitchv.Wells, 48Barb. 637. Reversed, 6 Alb. L. J. 198. Leland v. Cameron, 31 N. Y. 115. Dis- tinguished, 68 N. Y. 536. CASES CRITICISED. 357 Leland v. Hathom, 42 N. Y. 547. Ex- plained, 44 N. Y. 272. Lennon v. Mayor, &o., of Nevr York, 65 K. Y. 361. Followed, 68 N. Y. 214 ; 39 ^Superior 120. Lenox V. United Ins. Co., 3 JohnB. Cas. 178. OvEEKUiiED, 11 Johns. 332. Leonard v. Barker, 5 Den. 220. Dic- tum ovEBBULED, 16 Barb. 182. Leonard v. Oity of Brooklyn, 71 N. Y. 498. Followed, 80 N. Y. 302, 307. Leonard v. Columbia Steam Navi- gation Co., 84 N. Y. 48. Approved, 13 Otto (U. S.) 21. Leonard v. Vredenburgh, 8 Johns. 28' Ceiticised, 26 Wis. 185. Eeviewed, 84 N C. 53. Leopold V. Poppenhiemer, 1 Code 39, CoNTEA, 14 How. 463, 464. Le Boy v. Gouvemeur, 1 Johns. Cas, 226. Eeviewed, 44 N. Y. 219. Le Roy v. Market Fire Ins. Co., 39 N, Y. 60, 90. Contra, 45 N. Y. 80. Leslie v. Leslie, 6 Abb. Pr., n. s., 193. Distinguished, 8 Abb. N. Cas. 187. Leslie v. Leslie, 11 Abb. Pr., n. s., 311 Not in point, 46 Superior 579. Lester v. Blodgett, 2 How. Pr. 110. & 2 How. Pr. 272. Lettauer v. Goldman, 72 N. Y. 506 Distinguished, 13 Vr. (N. J.) 424. Leutze v. Butterfield, 1 Abb. N. Cas. 18 ; .51 How. Pr. 89. Kevebsbd, 7 Daly 24. Levin v. Russell, 42 N. Y. 251. Ap- plied, 56 How. Pr. 178, 180. Followed, 3 Hun 647; 36 Superior 66. Levy V. Brush, 45 N. Y. 589. Distin- «uiSHED, 61 How. Pr. 193 ; 67 N. Y. 35. Fol- lowed, 3 Hun 265 ; 5 Thomp. & C. 460. Levy V. Levy, 40 Barb. 585 ; 33 N. Y. 97. Consideeed, 23 Gratt. (Va.) 23, 26. Levy V. People, 19 Hun 383. Af- FiEMED, 80 N. Y. 327. Lewis V. Acker, 8 How. Pr. 414. Oveb- EULED, 10 How. Pr. 97, 98. Lewis V. Parrell, 46 Superior 358. Fol- lowed, 60 How. Pr. 138. Lewis V. Pox, 11 Abb. Pr. 281. See 20 How. Pr. 96 n. Lewis V. Pox, 19 How. Pr. 561. See 20, How. Pr. 96 n. Lewis V. Greider, 49 Barb. 606, 635. AppBOVED, 42 Superior 119. Lewis V. IngersoU, 1 Keyes 347. Fol- , lowed, 38 Superior 441. Lewis V. Jones, 13 Abb. Pr. 427, 429. Followed, 34 Superior 476. Lewis V. Kendall, 6 How. Pr. 59. See 6 How. Pr. 68, 71, 401. Lewis V. McMillen, 31 Barb. 395. Ovee- EULED, 41 Barb. 420. Lewis V. MoMillen, 41 Barb. 420. Fol- lowed, 3 Lans. 199. Lewis V. Smith, 9 Leg. Obs. 292. Ee- VEESED, 11 Barb. 152. See 9 N. Y. 502. Lewis V. Smith, 9 N. Y. 502. Doubted, 8 C. E. Gr. (N. J.) 372, 381. Followed, 23 Hun 134, 136, 137. Lewis V. Triokey, 20 Barb. 387. Fol- lowed, 39 How. Pr. 13, 34. Lewis V. Vamum, 3 E. D. Smith 690 n. Eeversed, 12 Abb. Pr. 305. Libbey v. Strasburger, 14 Hun 120. Approved, 56 How. Pr. 167, 168. Liddell v. Paton, 7 Hun 195. Appeal DISMISSED, 67 N. Y. 393. Liddell v. Paton, 67 N. Y. 393. Fol- lowed, 80 N. Y. 641 ; 82 Id. 574. Liegeois v. McOrackan, 22 Hun 69 Appeal dismissed, 83 N. Y. 624. Lima, Matter of, 77 N. Y. 170. Distin- guished, 83 N. Y. 104. Not applicable, 24 Him 230. Lincoln v. Battelle, 6 Wend. 475, 478. Followed, 3 Thomp. & C. 81. Lindauer v. Fourth Nat. Bank, 55 Barb. 75. Followed, 59 Barb. 265. Lindsay v. People, 63 N. Y. 143. Fol- lowed, 23 Hun 454, 465. Lindsley v. Almy, 1 Code, n1 s., 139. Contra, 3 Duer 669 ; 5 How. Pr. 310 ; 14 Id. 430. Lindsley v. People, 6 Park. Cr. 233, 237. Eeviewed, 15 Nev. 87, 98. Lindsley v. Simonds, 2 Abb. Pr., n. s., 69. Overruled, 23 Hun 259. Linn v. Glow, 14 How. Pr. 508. Fol- lowed, 14 How. Pr. 511 ; 20 Id. 59, 62. Con- tra, 7 Id. 208 ; 9 Id. 349. Linningdale v. Livingston, 10 Johns. 36. Applied, Dall. (Tex.) Dec. 119 (431.) Lipe V. Becker, 1 Den. 568. Approved, 6 Barb. 256. Lipe V. Eisenlerd, 32 N. Y. 229. Ap- proved, 23 Hun 71, 72. Litchfield v. Burwell, 5 How. Pr. 341. OvEBBULED, 6 How. Pr. 278. Litchfield v. Vernon, 41 N. Y. 123. Distinguished, 62 N. Y. 459. Litchfield v. "White, 3 Sandf. 545. Fol- lowed, 82 N. Y. 65, 73. Little, Matter of, 60 N. Y. 343. Distin- guished, 60 N. Y. 461. Followed, 82 N. Y. 243, 245, 246. Little, Petition of, 5 Thomp. & C. 343. Eevebsed, 60 N. Y. 343. Little V. Banks, 20 Hun 143. Affirmed, 85 N. Y. 258. 358 CASES CRITICISED. Little V. Willetts, 37 How. Pr. 481. 'See 40 How. Pr. 25, 31. Littlefleld v. Murin, 4 How. Pr. 306. See 6 How. Pr. 124. Littlefleld v. Storey, 3 Johns. 425. Ap- FEOVED, 11 Johns. 49. Livennore v. Bainbridge, 42 How. Pr. 53. Affibmed, 43 How. Pr. 272. Livermore v. Bainbridge, 43 How. Pr. 272. Afpibmed, 6 Alb. L. J. 172. Livermore v. Bainbridge, 44 How. Pr. 357. Affirmed, 47 How. Pr. 354. Livermore v. Bainbridge, 47 How. Pr. 354. Followed, 48 How. Pr. 122, 124; 4 Thomp. & C. 546, 580. Livermore v. Northrup, 44 N. Y. 107. Limited, 52 "Wis. 454. Livingston, Matter of, 2 Den. 575. Not followed, 6 Daly 51. See 9 Paige 440. Ijivingston v. Arnoux, 56 N. Y. 507. DiSTiNGinsHBD, ,68 N. Y. 478. Livingston v. Bartles, 4 Johns. 47& Followed, 84 N. Y. 239. Livingston v. Bishop, 1 Johns. 290. See 44 Superior 557. Livingston v. Gedney, 25 How. Pr. 1. Followed, 26 How. Pr. 409, 410. Livingston v. Gibbons, 4 Johns. Ch. 94. Explained, 1 Lans. 494. Livingston v. Greene, 52 N. Y. 113. Followed, 6 Hun 301. Livingston v. Hammer, 7 Bosw. 670. CONTBA, lAbb. Pr. 187. Livingston v. HoUenbeck, 4 Barb. 9. Approved, 15 N. Y. 451. Livingston v. Mildrum, 19 N. Y. 440, 443. Followed, 4 Hun 640. Livingston v. MiUer, 4 How. Pr. 42. See 4How. Pr. 54. Livingston v. Murray, 67 Barb. 214. iSlse 68 N. Y. 485. Livingston v. Murray, 68 N. Y. 485. Beviewed, 24 Hun 121. Livingston v. Peru Iron Co., 9 Wend. 511. Approved, 32 How. Pr. 313, 325, 333. Distinguished, 53 N. Y. 296. Livingston v. Badcliff, 3 How.'Pr. 417. See 3 How. Pr. 418. Livingston v. Bogers, 1 Cai. 583. Com- mented on, 12 Johns. 400. Livingston v. Tanner, 12 Barb. 481. Ap- proved, 57 N. Y. 154. Livingston v. Tanner, 14 N. Y. 64. Followed, 1 Thomp. & C. 94. Livingston v. Van Ingen, 9 Johns. 507. See Hopk. Ch. 149. Lobdell V. LobdeU, 32 How. Pr. 1. Re- versed, 33 How. Pr. 347. Lobdell V. Lobdell, 36 N. Y. 333. Dis- tinqdished, 42 Superior 429. Lockwood V. Barnes, 3 Hill 128. Ap- proved, 45 N. Y. 162, 164. Lockwood V. Thome, 18 N. Y. 285. Adopted, 44 Superior 424. Followed, 52 How. Pr. 384. Loder v. Hatfleld, 71 N. Y. 92. Distin- guished, 23 Hun 651, 655. Loeschigk v. Hatfleld, 51 N. Y. 660. Followed, 52 N. Y. 628. Loftus V. Union Ferry Co., 22 Hun 33. Affirmed, 84 N. Y. 455. Loftus V. Union Ferry Co., 10 Week. Dig. 448. Affirmed, 12 Week. Dig. 40. Lomer v. Meeke^, 25 N. Y. 361, 363. Followed, 34 Superior 269. Long V. New York Central R. R. Co., 50 N. Y. 76. Distinguished, 2 Hun 49. Longendyke v. Longendyke, 44 Barb. 366. Followed, 62 Barb. 537. Loomis V. Dorshimer, 8 How. Pr. 9. Followed, 9 How. Pr. 481, 483. Loomis V. Higbie, 29 How. Pr. 232. See 31 How. Pr. 264, 267. Loomis V. Ruck, 1 Thomp. & C. 442. Ee- VERSED, 56 N. Y. 462. Loomis V. Ruck, 56 N. Y. 462. Fol- lowed, 82 111. 450, 455. Loomis V. Tifft, 16 Barb. 541. Over- ruled, 23 Hun 45, 49. Contra, 67 N. Y. 264. Loonie v. Hogan, 9 N. Y. 435. Distin- guished, 63 N.Y. 478. Loop V. Litchfleld, 42 N. Y. 358. Fol- lowed, 45 Superior 273. Lord V. Arnold, 18 Barb. 104. Distin- guished, 22 Hun 233. LorUlard v. Silver, 36 N. Y. 578; 35 Barb. 132. Distinguishei^, 80 N. Y. 585, 590. Followed, 6 Hun 264, 266 ; 45 Superior 66. Eeconoiled, 8 Abb. N. Cas. 306. LorUlard v. Town of Monroe, 11 N. Y. 392. Considered, 45 N. Y. 682. Followed, 80 Id. 302, 311. Losee v. Buchanan, 61 Barb. 86. See 42 How. Pr. 385. Losee V. Buchanan, 51 N. Y. 476. Dis- tinguished, 57 N. Y. 572. Lossee v. 'Williams, 6 Lans. 228. Fol- lowed, 80 N. Y. 269, 271. Lott V. "Wykoff, 2 N. Y. 355. Distin- guished, 26 Barb. 104. Lottimer v. Livermore, 6 Daly 501. Modified, 72 N. Y. 174. Loucks V. Van Allen, 11 Abb. Pr., ir. s., 427. Approved, 24 Hun 516. Loughran v. Smith, 11 Hun 311. Af- firmed, 75 N. Y. 205. Lounfebury v. Purdy, 18 N. Y. 515. Distinguished, 59 Barb. 628. FoLliOWED, 43 Superior 451. CASES CRITICISED. 359 Lovett V. Robinson, 7 How. Pr. 105, See 16 How. Pr. 93, 94. Lo-w V. Hall, 47 N. Y. 104. Distin- guished, 82 N. Y. 519, 525. Lowber v. Mayor, &c., of New York, 15 How. Pr. 123. See 15 How. Pr. 229. Lowery v. Brooklyn Oity, cSec, R. R. Oo., 4 Abb. N. Cas. 32. Ebveesed, 19 Alb. L. J. 178 ; 76 N. Y. 28. Lowery v. Brooklyn City, &o., R. R. Co., 76 H. Y. 28. Distinguished, 88 N. Y. 127. Lowndes v. Dickerson, 34 Barb. 586. Eeviewed, 24 Hnn. 499, 500. Lowry v. Inman, 6 Abb. Pr., n. s., 394; 37 How. Pr. 286. Affirmed, 6 Alb. L. J. 172. Lowry V. Inman, 46 N. Y. 119 ; 2 Sweeney 117. Explained, 9 Abb. N. Cas. 298. Fol- lowed, 80 N. Y. 441, 456. Luby V. Hudson River R. R. Co., 17 N. Y. 131. Reviewed, 27 Minn. 170, 173. Lucas V. Johnson, 6 How. Pr. 121. CONTKA, 4 How. Pr. 361 ; 8 How. Pr. 495. Ludden v. Hazen, 31 Barb. 650. Dis- TlNGinsHED, 1 Hun 513, 514. Lude'wig v. Pariser, 54 How. Pr. 498. Followed, 54 How. Pr. 506, 507. See 16 Hnn 54. Ludington v. BeU, 43 Superior 557. Ee- VEBSED, 19 Alb. L. J. 364. Luers v. Brunges, 56 How. Pr. 282. See 57 How. Pr. 331. Luhrs V. Eizner, 15 Hun 399. ArriEMBD, SON. Y. 171. Luke V. City of Brooklyn, 43 Barb. 54. See 3 Keyes 445. LuUng V. Atlantic Mutual Ins. Co., 45 Barb. 510. Eeversed, 51 N. Y. 207. LuUng V. Atlantic Mutual Ins. Co., 30 How. Pr. 69. Contra, 30 How. Pr. 386, 396. Lumbard v. Syracuse, &c., R. R. Co., 64 Barb. 609. Eeveksed, 55 N. Y. 491. Lununis v. Kasson, 43 Barb. 373. Fol- lowed, 11 Hun 565, 570. Not applicable, 53 Iowa 124. Lund V. Seaman's Bank, 20 How. Pr. 461. Followed, 35 Superior 372. Lupton V. Lupton, 2 Johns. Ch. 614. Approved, 47 Barb. 263. Distinguished, 23 Hun 334, 338. Followed, 3 Thomp. & C. 208. Eeconciled, 8 Abb. N. Cas. 127. Luqueer v. Prosser, 1 Hill 256. Over- ruled, 8 N. Y. 207. Lush V. Druse, 4 Wend. 313. Examined, 5 Den. 139. Lusk V. Hastings, 1 Hill 656. Fol- lowed, 1 Col. T. 456. Eeviewed, 4 Eedf. 16. Lusk V. Lusk, 4 How. Pr. 418. Applied, 6 How. Pr. 198. See 5 Id. 435, 436. Lyle V. Smith, 13 How. Pr. 104. Over- ruled, 25 How. Pr. 266. Lynch, Exp., 2 Hill 45. Contra, 4 Hill 384. Lynch v. Johnson, 46 Barb. 56. Af- firmed, 6 Alb. L. J. 198. Lynch v. Johnson, 48 N. Y. 27. Ex- plained, 6 Fed. Eep. 220. Lynch v. Mosher, 4 How. Pr. 86. Ex- plained, 4 How. Pr. 409, 410. Lynch v. Onondaga Salt Co., 64 Barb. 558. Contra, 48 How. Pr. 142. Lynch v. Stone, 4 Den. 356. Explained, 18 N. Y. 461. Lyon V. Blakesly, 19 Hun 299. Fol- lowed, 60 How. Pr. 193. Lyon V. Lyon, 65 N. Y. 339. Not ap- plicable, 4 Eedf. 277. Lyon V. Murat, 54 How. Pr, 23, 24. See 54 How. Pr. 368. Lyon V. Yates, 52 Barb. 237, 238. Dis- tinguished, 5 Lans. 100. Followed, 35 Su- perior 1. M MAlister v. Reab, 4 Wend. 483. Cor- rected, 1 Barb. 235. McAlpin V. Powell, 1 Abb. N. Cas. 427. Eeversed, 70 N. Y. 126. Approved, 6 Abb. N. Cas. 97, 103. McAlpin V. Powell, 70 N. Y. 126. Dis- tinguished, 1 Civ. Pro. 262. MoArdle y. Barney, 50 How. Pr. 97. Followed, 56 How. Pr. 161, 166. McBride v. Farmers' Bank, 26 N. Y. 450. Eeviewed, 34 Superior 370. McBumey v. Martin, 6 Eobt. 502. Fol- lowed, 43 Superior 363. McBurney v. Wellman, 42 Barb. 390. Followed, 1 Thomp. & C. 489. McButt V. Hirsch, 4 Abb. Pr. 441. Fol- lowed, 13 Bankr. Eeg. 55. Contra, 1 E. D. Smith 261 ; 20 How. Pr. 311. See 2 Daly 225. McCaffrey v. Woodin, 65 N. Y. 459. Followed, 23 Hun 494, 497. McCartee v. Camel, 1 Barb. Ch. 455. Distinguished, 4 Eedf. 382. 360 CASES CEITICISED. McCarthy v. McOartliy, 54 How. Pr. ■97. Kevbksed, 13 Hun 579. McCarthy V. McCarthy, 16 Hun 546. Affirmed, 84 N. Y. 671. McCarthy v. City of Syracuse, 46 N. Y. 194. Distinguished, 4 Hun 637 ; 6 Thomp. & C. 686. Followed, 20 Minn. 117, 123. McCarthy v. G-raham, 8 Paige. 480. Approved, 35 Mich. 123. McCartney v. Bostwick, 32 JST. Y. 53. DiSTiNGinsHED, 3 Hun 559. Explaijted, 46 N. Y. 12, 20. Followed, 37 Superior 587. ^ee 67 Barb. 381. M'Carty v. Viokery, 12 Johns. 348. Explained, 3 Hill 350. MoCaughty v. Smith, 27 N. Y. 39. Criticised, 1 Hun 504, 506. McOlure v. Supervisors of Niagara Co., 50 Barb. 594; 33 How. Pr. 202. Ap- proved, 3 Abb. App. Dec. 83. McCoUum V. Seward, 62 N. Y. 316. Distinguished, 22 Hun 252. McCombs V. Allen, 18 Hun 190. Af- riRMED, 82 N. Y. 114. McConnell v. Sherwood, 58 How. Pr. 453. Affirmed, 61 How. Pr. 67. MoConnell v. Sherwood, 19 Hun 519. Affirmed, 84 N. Y. 522. McConnell v. Sherwood, 9 Week. Dig. 346. Affirmed, 12 Week. Dig. 196. McCormick v. Dawkins, 45 N. Y. 265. Distinguished, 52 N. Y. 420. McCormick v. Pennsylvania Central R. R. Co., 49 N. Y. 303. Distinguished, 63 >l. Y. 130; 80 Id. 353, 354. McCosker v. Brady, 1 Barb. Ch. 329. Affirmed, 3 Den. 610 ; How. App. Cas 480. McCosker v. Long Island B. R. Co., 21 Hun 500. Bbversed, 84 N. Y. 77. M'Coy V. Hyde, 8 Cow. 68. Distin- guished, 80 N. Y. 551. McCray v. McCray, 12 Abb. Pr. 1. Overruled, 39 Barb. 521. McCready v. Rumsey, 6 ' Duer 574. Distinguished, 59 N. Y. 107. McCulloch V. Norwood, 36 Superior 180. Modified, 58 N. Y. 562. McCullough V. Colby, 4 Bosw. 603. In point, 14 So. Car. 441. McCullough V. Colby, 5 Bosw. 477. Ap- proved, 43 How. Pr. 3. McCullough V. Moss, 5 Den. 567, 577. See 5 Oreg. 307. M'Oullum V. Gourlay, 8 Johns. 147. Distinguished, 11 Johns. 29. McDermott v. Board of Police, 5 Abb. Pr. 422. Approved, 6 Abb. Pr. 162, 164. McDonald v. Mallory, 44 Superior 80. Reversed, 20 Alb. L. J. 240 ; 77 N. Y. 546. McDonald v. Walter, 40 N. Y. 551. Followed, 8 A.bb. N. Oas. 392, 395. McDonald v. Western R. R. Cor- poration, 34 N. Y. 497. Limited, 44 N, Y. 507, 508 ; 2 Trans. App. 185. McBlwain v. Corning, 12 Abb. Pr. 16. Limited, 12 Hun 177, 178. - McBlwain v. Willis, 9 Wend. 548. Dis- tinguished, 81 N. Y. 349, 351. McBncroe v. Decker, 58 How. Pr. 250. Not followed, 59 How. Pr. 274, 275. Re- viewed, 9 Abb. N. Cas. 384. McFarlan w. Triton Ins. Co., 4 Den. 392, 397. Approved, 24 Mich. 395. Distin- guished, 61 How. Pr. 462. McGarry v. Board of Supervisors, 1 Sweeny 217. Followed, 34 Superior 301. McGovem v. Payn, 32 Barb. 83. Dis- tinguished, 22 Hun 385. MoGowan v. Newman, 54 How. Pr. 458. See 55 How. Pr. 342. McGrath v. Clark, 56 N. Y. 34. Fol- lowed, 23 Hun 185, 187. McGrath V. N. Y. Central, &o., R. Co., 59 N. Y. 468. Distinguished, 63 N. Y. 523. McGraw v. Godfrey, 14 Abb. Pr., n. s., 397. Affirmed, 16 Abb. Pr., n. s., 358. McGregor v. Buell, 1 Keyes, 153,. 157. Followed, 39 Superior 295. McGregor v. Comstock, 28 N. Y. 237. Followed, 3 Hun 217. McGuire v. People, 2 Park. Cr. 148. Overruled, 2 Park. Or. 235 ; 3 Id. 343. McHarg v. Bastman, 35 How. Pr. 205, 207. See 41 How. Pr. 92, 93. MdHenry v. Hazard, 45 Barb. 657. Reversed, 45 N. Y. 580. Mcintosh V. Mcintosh, 12 How. Pr. 289. Distinguished, 23 Hun 19, 22. Molntyre v. Barnard, 1 Sandf. Ch. 52. Approved, 82 N. Y. 476, 482. Mclntyre v. Borst, 26 How. Pr. 411. , Contra, 1 HUl 557. Mclntyre v. N. Y. Central R. R. Co., 37 N. Y. 287. Followed, 58 N. Y. 391, 395. McKeage v. Hanover Fire Ins. Co., 16 Hun 239. Affirmed, 81 N. Y. 38. McKecknie v. Ward, 58 N. Y. 541. Followed, 82 N. Y. 121, 128; 41 Superior 235, 242. McKlee v. People, 32 N. Y. 239. Ap- proved, 3 Abb. Pr., N. s., 216. McKenna v. People, 18 Hun 680. Re- versed, but not on points diseiMsed below, 81 N. Y. 360. Eb-argument denied, 24 Hun vn. McKensie v. Farrell, 4 Bosw. 192. Fol- lowed, 36 Superior 79 ; 41 Id. 235. M'Kenster v. Van Zandt, 1 Wend. 13. Followed, 11 How. Pr. 138, 139. CASES CRITICISED. 361 MoKeon v. Kearney, 57 How. Pr. 349, 350. Followed, 58 How. Pr. 384, 386. MoKieman v. Robinson, 23 Hun 289. Afpibmed, 84 N. Y. 105. MoKillip V. McKUlip, 8 Barb. 552. Ex- plained, 2 Hun 400, 401. MoKnlght V. Diinlop, 5 N. Y. 537. DiSTiNomsHED, 80 N. y. 353, 362 ; 81 Id. 341, 346. - MoKyring v. Bull, 16 N. Y. 297. Ap- PEOVED, 5 Neb. 117, 125. Distinguished, 41 N. Y. 349, 352. Followed, 36 Superior 262. McLaren v. Mayor, &c., of New York, 1 Daly 243. Eevebsed, 41 N. Y. 619. McLaughlin v. McDevitt, 63 N. Y. 213. Eeviewed, 4 Redf. 133. McLaughlin v. Waite, 5 Wend. 404, 405. ExPLiONED, 35 Superior 372. McLean v. Freeman, 70 N. Y. 80, 89. Approved, 23 Hun 312, 315. McLean v. Stewart, 14 Hun 472, 477. DiSTiNGTilSHED, 23 Hun 424, 428. McLean v. Swanton, 13 N. Y. 535. Ex- plained, 11 Abb. Pr., N. s., 438, 441. McLean v. Tompkins, 18 Abb. Pr. 24. Distinguished, 80 N. Y. 155, 160. McLoskey v. Reid, 4 Bradf. 334. Fol- lowed, 57 How. Pr. 209, 213. Limited, 2 Eedf. 168. McMahon v. Allen, 35 N. Y. 403. Re- viewed, 12 Otto (U. S.) 158, 159, 160 ; 1 Trans. Eep. 77, 78, 79. McMahon v. Macy, 51 N. Y. 155. Dis- tinguished, 83 N. y. 317 ; 72 Mo. 124. McMahon V. New York and Brie R. R. Co., 20 N. Y. 463. Commented on, 37 Wis. 149, 153. Distinguished, 60 N. Y. 111. McMahon V. Rauhr, 3 Daly 116. Fol- lowed, 43 Superior 436. McMahon v. Rauhr, 47 N. Y. 67. Re- viewed, 13 Vr. (N. J.) 393. McMahon v. Tenth Ward School Officers, 12 Abb; Pr. 129. See 2, Daly 443. McMaster v. President, &c., of Ins. Co. of North America, 55 N. Y. 222. Followed, 42 Superior 259. McMiohael v. Kilmer, 12 Hun 336. Rb- VEMED, 19 Alb. L. J. 80. McMiohael v. Kilmer, 20 Hun 176. Ap- peal DISMISSED, 24 Hun VII. McMillen v. Cronin, 13 Hun 68. Ap- peal DISMISSED, 75 N. y. 474. McMurray v. G-ifford, 5 How. Pr. 14. Contka, 12 How. Pr. 313. See 5 Id. 470, 473. McNamara v. Bitely, 2 Code 42; 4 How. Pr. 44. OvEBRULED, 6 How. Pr. 185, 187. McNamara v. D-wjryer, 7 Paige 239. Distinguished and approved, 13 So. Car. 425. McNeil V. Tenth Nat. Bank, 46 K Y 325. Approved, 55 N. Y. 46, 49. Followed, 22 Hun 346; 6 Lans. 396. Reviewed, 17 Blatchf. (U. S.) 465 ; 70 Mo. 192, 197, 198. M'Nitt V. Clark, 7 Johns. 465. Ap- proved, 11 Johns. 60. McPherson v. Clark, 3 Bradf. 92. Dis- tinguished, 1 Thomp. & C. 440. M'Quade v. New York, &o., R. R. Co., 11 How. Pr. 434. Followed, 35 Su- perior 214. McQueen v. Babcock, 41 Barb. 337 ; 22 Howi Pr. 229. Affirmed, 3 Keyes 428. McQueen v. Middletown Manuf. Co., . 16- Johns. 5. Reviewed, 46 Superior 402. McRae v. Central Nat. Bank, 50 How. Pr. 51. Affirmed, 66 N. Y. 489. McRae v. McRae, 3 Bradf. 199. Re- viewed, 4 Redf. 436. McSmith v. Van Deusen, 9 How. Pr. 245. Contra, 12 How. Pr. 438, 440 ; 13 Id. 572, 574. MoStea v. Matthews, 50 N. Y. 166. Followed, 54 N. Y. 81. McVeany v. Mayor, &c., of New York, 1 Hun 35. Reversed, 80 N. Y. 185. Distinguished, Id. 126. McViokar v. G-reenleaf, 4 Robt. 657. Approved, 40 Superior 92. McViokar v. Ketohum, 1 Abb. Pr., S. s, 452. Approved, 12 Abb. Pr., n. s., 244, 245. McViokar v. Ketohum, 19 Abb. Pr. 241. Disapproved, 4 Abb. Pr., n. s., 44, 45. McWhorter v. Agnew, 6 Paige 111. Reviewed, 61 How. Pr. 203. McWhorter v. Benson, Hopk. 28; 42. Approved, 61 How. Pr. 100. MoWilliams v. Mason, 6 Duer 276. Distinguished and approved, 2 Abb. Pr.,*N. 8., 211 ; 1 Robt. 576. See 31 N. Y. 294. MoWilUams v. Mason, 1 Robt. 576. Affirmed, 31 N. Y. 294. Macaiilay v. Porter, 71 N. Y. 173. Fol- lowed, 23 Hun 611, 614. Macedon, &c.. Plank Road Co. v. Lapham, 18 Barb. 312. Distinguished, 22 Hun 366. Mack V. Mack, 3 Hun 323. See 44 Su- perior 124. Mack V. Patchin, 42 N. Y. 167. Ex- plained, 7 Lans. 478. Mack V. Patohin, 1 Sheld. 67. Af- firmed, 42 N. Y. 167. Mackie v. Cairns, 5 Cow. 547. Ap- proved, 1 Hill 463. Distinguished, 6 Stew. (N. J.) 298. Macomber v. Dunham, 8 Wend. 550. Reviewed, 129 Mass. 91, 93. Macqueen v. Babcock, 13 Abb. Pr. 268. Affirmed, 3 Keyes 428. 362 CASES CEITICISED. Macy V. Wheeler, 30 N. Y. 231. Fol- lowed, 34 LSuperior 509. Madison Ave. Baptist Church v. Baptist Church in Oliver St., 1 Sweeny 109. Reveesed, 11 Abb. Pr., n. s., 132. Madison County Bank v. Gould, 5 Hill 309. Distinguished, 62 N. Y. 521. Fol- lowed, 45 Superior 235. Magee v.. Badger, 30 Barb. 246. Fol- lowed, 34 Superior 336. Magee v. Osborn, 32 N. Y. 669. Fol- LO-ijfED, 40 Superior 87. Magee v. Vedder, 6 Barb. 352. Fol- lowed, 17 How. Pr. 263, 264. Maggrath v. Church, 1 Cai. 196. Be- TiEWED, 44 N. Y. 220. Magnin v. Dinsmore, 53 N. Y. 652 ; 35 Superior 182; 38 Id. 248. See 56 N. Y. 168; 40 Superior 512. Magnin v. Dinsmore, 62 N. Y. 35. Dis- tinguished, 42 Superior 16. Maguire v. Woodside, 2 Hilt. 59. Fol- lowed, 60 How. Pr. 167. Mahan, Matter of, 20 Hun 301. Ar- PIBMED, 81 N. Y. 621. Followed, 22 Hun 614, 615 ; 23 Id. 327, 329. Mahan, Matter of, 81 N. Y. 621. Fol- lowed, 82 N. Y. 142, 143. Distinguished, 83 Id. 434. Sustained, 84 Id. 603. Maher v. Central Park, &o., B. R. Co., 39 Superior 155. Apfiemed, 67 N. Y. 52. Maher v. Comstock, 1 How. Pr. 87. Overruled, 4 How. Pr. 322, 323. Mahler v. Norwich, &c., Transp. Co., 35 N. Y. 352. See 44 Superior 80. Mahon v. New York Central R. R. Co., 24 N. Y. 658. Eb-ai'eirmed, 25 N. Y. 532. Main v. Prosser, 1 Johns. Cas. 130. Fol- lowed, 12 Johns. 466. Malcolm v. Miller, 6 How. Pr. 456. See 7 How. Pr. 17. Malone v. Hathaway, 6 Thomp. & C. 1. Bevebsed, 64 N. "X . 5. Malone v. Hathaway, 64 N. Y. 5. Ap- proved, 80 N. Y. 46, 53 ; 13 Vr. (N. J.) 472. Maloney v. Koran, 36 How. Pr. 260. -Bevbesed, 6 Alb. L. J. 172. Malloney v. Horan, 49 N. Y. Ill, 116. Followed, 60 How. Pr. 111. Mallory v. Gillett, 21 N. Y. 412. Ap- proved, 26 Wis. 21, 22. Disapproved, 12 Abb. Pr. 313, 315. Distinguished, 34 Barb. 97 ; 60 N. Y. 241. Mallory V. Leach, 14 Abb. Pr. 449 n. Followed, 13 Bankr. Beg. 56. Mallory v. Leach, 23 How. Pr. 507. Ex- plained, 4 Abb. Pr. 443. Not followed, 61 How. Pr. 367. Contra, 1 E. D. Smith 261 -, 20 How. Pr. 311. See 2 Daly 226. Mallory v. Tioga R. R. Co., 5 Abb. Pr., N. s., 420. Followed, 35 Superior 223. Mallory v. Travelers' Ins. Co., 47 N. Y. 52. Followed, 54 N. Y. 651. Mandeville v. Reynolds, 5 Hun 338. Affirmed, 68 N. Y. 528. Mandeville v. Reynolds, 68 K. Y. 528. Distinguished, 22 Hun 411. Manhattan, &c., Co. v. Sears, 45 N. Y. 797. Followed, 1 Thomp. & 0. 419. Manhattan, &c., Co. v. Thompson, 5& N. Y. 80. Commented on, 68 JST. Y. 335. Manhattan Gaslight Co. v. Barker, 36 How. Pr. 233. Contra, 7 Bobt. 219, 418. Manhattan Savings Institution, Mat ter of, 82 N. Y. 142. Distinguished, 83 N Y. 434. Followed, 23 Hun 647 ; 84 N. Y, 603; Manice v. Mayor, &c., of New York, 8 N. Y. 120. Followed, 81 N. Y. 62, 65. Manice v. Manice, 1 Lans. 348. Modi- fied, 43 N. Y. 303. Manice v. Manice, 43 N. Y. 303, 387. Followed, 57 How. Pr. 269, 270, 271. Manley v. People, 7 N. Y. 295. Ex- plained, 16 N. Y. 344. Mann v. Brooks, 7 How. Pr. 449. Fol- lowed, 7 How. Pr. 458. Mann v. Eckford, 15 Wend. 502. Ap- proved, 35 Barb. 239. Mann v. Marsh, 35 Barb. 68. Distin- guished, 2 Hun 572. Mann v. Mann, 1 Johns. Ch. 231. Fol- lowed, 82 N. Y. 103, 106. Mannv. Mann, 75 N. Y. 614. Followed, 80 N. Y. 1, 7. Manning v. Monaghan, 23 N. Y. 539. Distinguished, 61 N. Y. 83. Manning v. Tyler, 21 N. Y. 567. Dis- tinguished, 23 N. Y. 491. Manrow v. Durham, 3 Hill 584. Criti- cised, 20 N. Y. 337. Manufacturers', &c., Bank of Buffalo V. Mechanics' Nat. Bank of Buffalo, 2 Thomp. & C. 395. Beversed, 11 Alb. L. J. 115. Manufacturers', &c.. Bank of Phila- delphia V. Cowden, 3 Hill 461. Ex- plained, 9 Abb. N. Cas. 461. Many v. Beekman Iron Co., 9 Paige 188. Limited, 2 Barb. Ch. 500. Mapes V. Weeks, 4 Wend. 659. FoL' LOWED, 64 Me. 17. Mappier v. Mortimer, 11 Abb. Pr., n. s., 455. Contra, 11 Abb. Pr., n. s., 376. Martole v. Whitney, 28 N. Y. 297. Be- CONCILED, 42 Mich. 508. Marchy v. Shults, 29 N. Y. 346. Dis- tinguished, 22 Hun 426. CASES CRITICISED. 363 Maretzek v. Oauld-well, 2 Abb. Pr., N. s., 40T. Eevibwed, 17 Blatchf. (U. S.) 563. Marine Bank of Chicago v. "Wriglit, 48 N. y. 1. Followed, 3 Thomp. & C. 237, 23P. Marine Bank of N. Y. v. Clements, 31 N. Y. 33. Distinguished, 34 Superior 145. Markle v. Hatfield, 2 Johns. 455, 459. Commented on, 11 Johns. 414. Markham v. Jaudon, 41 N. Y. 235. Dis- APPEOVED, 1 Cine. (Ohio) 94, 98. Distin- guished, 46 N. y. 452; 52 Id. 236. Ovee- EULED in part, 53 N. Y. 217. See 51 N. Y. 77. Marks v. King, 64 N. Y. 628. Followed, 82 N. Y. 339, 347. Marquand v. "Webb, 16 Johns. 89. Re- cognized AND APPLIED, 5 Hill 82. Marquat v. Marquat, 12 N. Y. 336. Distinguished, 57 N. Y. 565. Marquisee v. Brigham, 12 How. Pr. 399. CoNTBA, 7 How. Pr. 354, 396; 19 Id. 450. Marry v. James, 37 How. Pr. 52. Fol- lowed, 37 How. Pr. 237. Marsh, Matter of, 21 Hun 582. Af- piKMED, 83 N. Y. 431. Followed, 22 Hun 608. Marsh v. Dodge, 6 Thomp. & C. 568. Ebveesed, 66 N. Y. 533. Marsh v. Falker, 40 N. Y. 562. Ap- PEOVED, 36 Superior 544. Distinguished, 57 N. Y. 428. Marsh v. Gilbert, 2 Eedf. 465. Appar- ently OVBEEULED, 67 N. Y. 495. Marsh v. N. Y. and Brie B. R. Co., 14 Barb. 364. Ovebeuled, 13 N. Y. 51. Marsh v. Pike, 10 Paige 595, 596. In point, 14 So. Car. 441. Marsh v. Potter, 30 Barb. 506. Ap- PBOVED, 43 Barb. 292. Marsh v. "Wheeler, 2 Edw. 156. Dis- tinguished, 4 Bedf. 156. Marshall v. Davies, 78 N. Y. 414. Fol- lowed, 9 Abb. N. Cas. 374 ; 60 How. Pr. 439. Marshall v. Marshall, 2 Hun 238. Com- mented ON, 8 Abb. N. Cas. 444, 445, 447 ; 60 How. Pr. 52, 53. Followed, Id. 297 ; 23 Hun 260, 263. Marshall v. Peters, 12 How. Pr. 218. Ceiticised, 55 How. Pr. 376, 380. Marshall v. "Waterto-wn Steam En- gine Co., 10 Hun 463. See 54 How. Pr. 274. Marston v. Swett, 6 Thomp. & 0. 534, Eeveesed, 66 N. Y. 206. Marston v. Swett, 66 N. Y. 206. Con- sideeed, 67 Me. 93, 98. Followed, 82 N. Y. 526, 530. See 44 Superior 12. Martin v. Funk, 75 N. Y. 134. Distin- guished, 80 N. Y. 440. Followed, 84 Id. 86. Majtin v. Kunzmuller, 37 N. Y. 396. Eevibwed, 129 Mass. 237. Martin v. Martin, 28 How Pr. 385. OvEEEULED in part, 66 Barb. 443. Martin v. Spofford, 3 Abb. N. Cas. 125. CoNTEA, 50 How. Pr. 519 ; 52 Id. 117. Martin v. Windsor Hotel Co., 10 Hun 304. Appeal dismissed, 70 N. Y. 101. Questioned, 56 How. Pr. 242. Martine v. International Life Ins. Society, 62 Barb. 181. Modified, 53 N. Y. 339. Martine v. International Life Ins. Society, 53 N. Y. 339. Contea, 3 Otto (U. S.) 24. Martine v. Lowenstein, 6 Hun 225.. Appeal dismissed, 68 N. Y. 456. Marvin v. Ellwood, 11 Paige 365. Fol- lowed, 6 Thomp. & C. 8. Marvin v. Marvin, 4 Keyes 9. See- 41 N. Y. 619. Marvin v. Marvin, 75 N. Y. 240. Fol- lowed, 23 Hun 361, 365. Marvin v. Smith, 46 N. Y. 571, 575. Ap- PEOVED, 52 Wis. 301. Marvin v. Universal Life Ins. Co., 16 Hun 494. Affirmed, 24 Hun vi. Marvlne v. Hymers, 12 N. Y. 223. Fol- lowed, 52 N. Y. 649. Mason v. Brown, 6 How. Pr. 481. Ee- viEWED, 8 Abb. N. Cas. 248, 250. Mason v. Moore, 2 How. Pr. 70. Ap- PEOVED, 23 Hun, 406, 407. Maryott v. Thayer, 39 Superior 417. Followed, 41 Superior 292. Mason v. People, 26 N. Y. 200. Fol- lowed in a case of anion, 80 N. Y. 329, 334. Masten v. Deyo, 2 Wend. 424, 426. Fol- lowed, 39 Superior 384. Masten v. Webb, 60 How. Pr. 302. Eb- veesed, 24 Hun 90. Masterson v. Short, 33 How. Pr. 481. Criticised, 46 How. Pr. 401. Contea, 35 Id. 169 ; 7 Eobt. 299. Masterton v. Mayor, &c., of Brook- lyn, 7 Hill 61. Distinguished, 8 Fed. Eep. 466. Mather v. Hannaur, 55 How. Pr. 1. Followed, 55 How. Pr. 85. Mather v. Mather, 48 Barb. 167. Ee- VERSED, 6 Alb. L. J. 172. Mathews v. Harsell, 1 E. D. Smith 393. Explained, 35 Superior 372. Eeconciled, 90 Pa. St. 379. Mathews v. Howard Ins. Co., 11 Leg. Obs. 171. Eeversed 11 N. Y. 9. Mathews v. Neilson, 3 Edw. Ch. 346. Followed, 23 Hun 223, 229. Matthews v. Coe, 49 N. Y. 57. Fol- lowed, 8 Nev. 345, 355. Limited, 51 K. X. 77. Matthews v. Matthews, 1 Edw. Ch. 565. Approved, 23 Hun 119, 121. Matthews v. Mayor, Ac, of New York, 1 Sandf. 132. Followed, 7 Hun 232. S64 CASES CRITICISED. Matthews v. Meyberg, 63 N. Y. 656. Adopted, 44 Superior 557. Matteson v. Matteson, 51 How. Pr. 276. CONTKA m pari, 63 N. Y. 221. Matteson v. New York Central R. R. Co., 62 Barb. 364. Explained, 12 Hun 341. Mattioe v. Allen, 33 Barb. 543. Ee- VBBSED, 33 How. Pr. 619. Mattioe v. Lillie, 24 How. Pr. 264. Dis- tinguished, 54 Barb. 51 ; 36 How. Pr. 425, 430. Mazmilian v. Mayor, &c., of New York, 62 N. Y. 160. Distinguished, 83 N. Y. 534. Followed, 11 Hun 439. Mayer, Matter of, 50 N. Y. 504. Dis- tinguished, 17 Hun 527. Followed, 82 N. Y. 204, 211 ; 4 Thomp. & C. 878. Mayer v. Mayor, &c., of New York, 2 Hun 306. Followed, 5 Hun 421, 422. Mayer v. Mode, 14 Hun 155. Fol- l^OWED, 24 Hun 284. Mayer v. Noll, 56 How. Pr. 214i Fol- lowed, 56 How. Pr. 240. Contba, 2 Abb. N. Cas. 418 ; 54 How. Pr. 93. Mayhew v. Robinson, 10 How. Pr. 162. CoNTEA, 14 How. Pr. 61, 63. Maynard v. Talcott, 11 Barb. 569. Dis- tinguished, 51 Wis. 612. Mayor, Sso., of Brooklyn v. Meserole, 26 Wend. 132. Followed, 40 N. Y. 166. Mayor, &c., of Hudson v. Thorne, 7 Paige 261. Distinguished, 2 Hun 65. Mayor, &c., of New York, Matter of, 49 JST. Y. 150. Followed, 2 Hun 580, 582. Mayor, &c., of New York v. Casb- inan, 10 Johns. 96. Followed, 11 Jolins. 443. Mayor, &c., of New York v. Brben, 38 N. Y. 305. Dissenting opinion, 3 Abb. App. Dec. 261 n. Distinguished, 4 Hun 605. Oontra, 61 Barb. 45 ; 4 Lans. 467. Mayor, &c., of New York v. Furze, 3 Hill, 612, 617. Disappeoved, 5 Neb. 388. Keviewed, 16 W. Va. 295. Mayor, &o., of New York v. Hamil- ton Fire Ins. Co., 39 N. Y. 45, 46. Fol- lowed, 61 How. Pr. 146. Reviewed, 16 W. Va. 676. Mayor, &o., of New York v. Sober- merborn, 3 How. Pr. 334. Eeconsideeed AND" applied, 3 How. Pr. 367. Mayor, &c., of New York v. Second Ave. R. R. Co., 32 N. Y. 261. In point, 6 Fed. Eep. 557. Reviewed, 11 Neb. 560. Mayor, &o., oif New York v. Union Perry Co., 55 How. Pr. 138. Followed, 55 How. Pr. 154. Mayor of Albany, Exp., 23 Wend. 277, 279. Reviewed, 54 Tex. 441. Meaobam v. Dudley, 6 Wend. 514. See 3 How. Pr. 334. Meacbam v. Steames, 9 Paige 399. Distinguished, 23 Hun 641, 643. Mead v. Case, 33 Barb. 202. Doubted, 1 Hun 400, 402. Mead v. Degolyer, 16 /Wend. 632, 635. Distinguished and explained, 81 N. Y. 341, 346. Mead v. Mali, 15 How. Pr. 347. See 16 How. Pr. 63; Mead v. Mitchell, 5 Abb. Pr. 92. Fol- lowed, 6 Abb. Pr. 59, 64. Mead v. Mitchell, 17 N. Y. 210. Dis- tinguished, 22 Hun 490. Mead v. 'Westchester Fire Ins. Co., 64 N. Y. 453, 455. Followed, 43 Superior 461. Mechanics', &o.. Bank of Albany v. Rider, 5 How. Pr. 401. Obsolete, see act of 1851. Mechanics', &c., Bank of Jersey City V. Dakin, 50 Barb. 587; 28 How. Pr. 502. Reviewed, 3 Hun 2. See 50 N. Y. 80. Mechanics', &o.. Bank of Jersey City V. Dakin, 51 N. Y. 519. Authoeity ovee- THEOWN IN, 50 N. Y. 83. Distinguished, 5 Daly 540. Not followed, 24 Hun 259. CoNTEA, 12 Hun 584. Mechanics', &c., Nat. Bank v. Crow, 60 N. Y. 85. Distinguished, 81 N. Y. 218, 225; 84 Id. 135. Mechanics', &c., Saving's Inst. v. Roberts, 1 Abb. Pr. 381. Distinguished, 23 Hun 134, 137. Mechanics' Bank v. Livingston, 33 Barb. 458. Afpiembd, 33 Barb. 465. Mechanics' Bank v. New York, &c., R. R. Co., 13 N. Y. 599. Followed, 17 How. Pr. 464, 465, 466 ; 18 Id. 419, 421 ; 21 Id. 271, 272, 273, 274. Mechanics' Banking Assoc, v. Kier- sted, 10 How. Pr. 400. Followed, 13 Abb. Pr., N. s., 298, 299 ; 44 How. Pr. 225. Medbury v. Swan, 46 N. Y. 200. Ap- PEOVED, 64 Barb. 506. Followed, 2 Hun 336. Meech v. Calkins, 4 Hill 534. Ap- PEOVED, 23 Hun 406, 407. Meech v. Patchin, 14 N. Y. 71. Fol- lowed, 43 Superior 335. Meech v. Smith, 7 Wend. 315. Distin- guished, 8 Mo. App. 378. Meeban v. 'Williams, 2 Daly 367. Ap- PEOVED AND FOLLOWED, 5 Daly 540. Meeker v. Claghorn, 44 N. Y. 349. Re- viewed, 34 Superior 58. Meeker v. Meekfer, 11 Hun 533. Re- versed, 7 Abb. N. Cas. 299. Meeker v. 'Wright, 11 Hun 533. Re- versed, 19 Alb. L. J. 163. Mehan v. Syracuse, &c., R'y Co., 73 N. Y. 585. Followed, 80 N. Y. 46, 52. CiiSES CRITICISED. 365 Mellen v. Hamilton Fire Ins. Co., 17 N. Y. 609. Followed, 83 N. Y. 171. Menagh v. 'Whit-well, 52 N. Y. 146. POLLOT^ED, 16 Bankr. Eeg. 26. Meneely v. Meneely, 62 N. Y. 427. Re- viewed, 52 Wis. 585. Mentz V. Second Ave. R. R. Co., 2 Eobt. 356. Appiemed, 41 N. Y. 619. Meroein v. People, 25 Wend. 64. Dis- tinguished, 1 Hun 28 ; 56 N. Y. 192. Fol- lowed, 3 Thomp. & C. 191.. Mercein v. Smith, 2 Hill 210. Fol- lowed, 59 N. Y. 580. Mercer v. Vose, 67 N. Y. 56. See 44 Superior 124. Merchants' Bank v. Thompson, 55 N. Y. 7. Followed, 23 Hun 134, 136. Merchants' Bank of Canada v. Liv- ingston, 17 Hun 321. See 74 N. Y. 223. Merchants' Exchange Nat. Bank v. Commercial 'Warehouse Co. of N. Y., 49 N. Y. 635, 636. Distinguished, 60 N. Y. 612. Followed, 22 Hun 218. Merchants' Ins. Co. v. Hinman, 15 How. Pr. 182. Distinguished, 67 N. Y. 390. Merchants' Nat. Bank of "Whitehall V. Hall, 18 Hun 176. Apeirmed, 83 N. Y. 338. Meriden Brittania Co. v. Zingsen, 4 Eobt. 312. Appikmed, 6 Alb. L. J. 198. Merrick v. Brainard, 38 Barb. 574. MoDipiED, 34 N. Y. 208. Followed, 5 Hun 503, 506. Merrick v. Van Santvoord, 34 N. Y. 208. Followed, 5 Hun 503, 506. MerrUl v. Green, 55 N. Y. 270. Distin- guished, 64 N. Y. 119. Followed, 3 Hun 192, 194; 5 Thomp. & C. 236. Merrill v. GrinneU, 10 How. Pr. 31. Ap- proved, 15 How. Pr. 336, 337. Merrill v. Ithaca, &c., R. R. Co., 16 Wend. 586. Followed, 17 How. Pr. 399, 404. Merritt v. Carpenter, 30 Barb. 61. Ee- VERSED, 3 Abb. App. Dec. 285. Merritt v. Barle, 29 N. Y. 115. See 44 Superior 136. Merritt v. Seaman, 6 N. Y. 168. Fol- lowed, 1 Hun 49, 50; 47 How. Pr. 242; 3 Thomp. & C. 145, 146. Contra, 69 N. Y. igl. Merritt v. Thompson, 27 N. Y. 225, 233. Distinguished, 82 N. Y. 95, 101. Merritt v. Todd, 23 N. Y. 28. Applied, 29 N. Y. 172, 173. Disapproved, 32 La. Ann. 263, 264. Distinguished, 24 Hun 364, 365. Explained, 50 Barb. 337. Limited, 67 Id. 408; 47 N. Y. 519, 520. Merritt v. "Wing, 4 How. Pr. 14. See 4 How. Pr. 257 ; 5 Id. 470. Mersereau v. Pearsall, 19 N. Y. 108. Distinguished 2 Hun 579. Messinger v. Holmes, 12 Wend. 203, Reviewed, 1 Hill 183. Messner v. People, 45 N. Y. 1. Fol- lowed, 1 Thomp. & C. 656. Metcalf V. GarUnghouse, 40 How. Pr. 50. Appiemed, 6 Alb. L. J. 173. Metcalf V. Stryker, 31 N. Y. 255. Fol- lowed, 4 Keyes 105. Meyer v. Clark, 45 N. Y. 285. Ex- plained, 23 Hun 454, 472. Meyer v. Mayor, &o., of New York, 63 N. Y. 455. Applied, 6 Fed. Eep. 854. Meyer v. Meyer, 7 Week. Dig. 535. Fol- lowed, 23 Hun 230, 231. Meyer v. Peck, 33 Barb. 532. Aepirmed, 26 How. Pr. 601. Meyer v. Schultz, 4 Sandf. 664. Contra 10 How. Pr. 44, 46, 79. Michigan, State of, v. Phoenix Bank,. 33 N. Y. 25. Distinguished, 11 Hun 328,. 332. Mick V. Mick, 10 Wend. 379. Overruled^ 16 Wend. 617. Middlebrook v. Broadbent, 47 N. Y.. 443. Distinguished, 57 N. Y. 124. Middletown, Town of, v. Rondout, &c., R. R. Co., 12 Abb. Pr., n. s., 276; 4a How. Pr. 144. Appibmed, 43 How. Pr. 481. Middletown, Town of, v. Rondout, &o., R. R. Co., 43 How. Pr. 481. Contra, 44 How. Pr. 161. Middletown, Village of. Matter of^ 82 N. Y. 196. Followed, 82 N. Y. 622. Mier v. Cartledge, 8 Barb. 75. Criti- cised, 6 How. Pr. 360 n. Followed, 11 Id. 395, 399. Questioned, 9 Id. 217, 218. Mier v. Cartledge, 4 How. Pr. 115. See 5 How. Pr. 155. MUhau V. Sharp, 15 Barb. 193; 17 Id. 435. Criticised, 7 Abb. Pr. 126. Disap- proved, 18 N. Y. 163. Milks V. Rich, 15 Hun 178. Aepirmed, 80 N. Y. 269. Millbankrv. Broadway Bank, 3 AbK Pr., N. s., 223. Distinguished, 3 Hun 2. Miller v. Adsit, 18 Wend. 672. See a How. Pr. 30, 32. Miller V. Auburn, &c., R. R. Co., 6- Hill 61, 63. Distinguished, 84 JS". Y. 39. Miller v. Cook, 22 How. Pr. 66. Fol- lowed, 23 How. Pr. 64, 65, 67. Miller v. Emans, 19 N. Y. 384. Fol- lowed, 20 How. Pr. 41, 50. Miller v. Garling, 12 How. Pr. 203. Approved, 4 Daly 314. Miller v. Hooper, 19 Hun 394. Fol- lowed, 23 Hun 532. Miller v. Long Island R. R. Co., la Hun 194. Followed, 60 How. Pr. 400. 366 CASES CRITICISED. Miller v. Long Island R. R. Co., 71 N. Y. 380. Followed, 9 Abb. N. Cas. 184. Miller v. Matlier, 5 How. Pr. 160. See 2 Sandf. 667. Miller v. Miller, 7 Hun 208. Distin- guished, 1 Abb. N. Cas. 30. MiUer v. New York and Erie R. R. Co., 21 Barb. 513. Overruled, 24 N. Y. 351. Miller v. Van Anken, 1 Wend. 516. Explained, 6 HUl 610. Miller v. "WTiite, 10 Abb. Pr., n. s., 385 ; 59 Barb. 434. Keveesed, 50 N. Y. 137. Fol- lowed, 13 Abb. Pr., N. s., 184; 7 Lans. 206. Miller v. White, 57 Barb. 504. Fol- lowed, 7 Lans. 206. Miller v. WTiite, 50 N. Y. 137. Distin- guished, 8 Abb. N. Cas. 385, 386, 389 ; 83 N. Y. 317. Followed, 37 Superior 269. Millerd v. Thorn, 56 N. Y. 402. Fol- lowed, 83 N. Y. 147. MUlett V. Baker, 42 Barb. 215. Ap- proved, 42 N. Y. 70. Milligan v. Robinson, 58 How. Pr. 380. Distinguished, 22 Hun 186 ; 59 How. Pr. 495. Millikin v. Gary, 5 How. Pr. 272. Disap- proved, 8 How. Pr. 373, 374. Overruled, 7 Bosw. 640. Contra, 6 How. Pr. 208, 210. Milliman v. Nehir, 20 Barb. 37. Distin- guished, 65 N. Y. 467. MiUiman v. New York Central, &c., R. R. Co., 4 Hun 409. Afpirmed, 66 N. Y. «42. Millius V. Shafer, 3 Den. 60. Followed, 8 Abb. N. Cas. 246. Mills V. Bliss, 55 N. Y. 139. Followed, 41 Superior 274. Mills V. City of Brooklyn, 32 N. Y. 489. Adopted, 52 Wis. 435. Distinguished, 61 Barb. 511 ; 5 Lana. 533. Eeviewed, 16 W. Va. 287, 288. Mills V. Davis, 35 Superior 355. Appeal dismissed, 53 N. Y. 349. Mills V. Hildreth, 7 Hun 298. Appeal dismissed, 81 N. Y. 91. Mills y. Hildreth, 81 N. Y. 91. Fol- lowed, 82 N. Y. 572, 574. Mills V. Hunt, 20 Wend. 431. Distin- guished, 63 N. Y. 651. Mills V. Michigan Central R. R. Co., 45 N. Y. 622. Followed, 68 111. 471, 475. Mills V. New York, &c., R. R. Co., 2 Bobt. 326. Affirmed, 41 N. Y. 619. Mills V. Thursby, 1 Code 121. Over- BULED, 8 How. Pr. 440. Mills V. Thursby, 11 How. Pr. 113. Contra, 18 How. Pr. 310, 313. Milnor v. New York, &c., R. R. Co., Daly 355. Affirmed, 53 N. Y. 363. Miner v. Beekman, 11 Abb. Pr., n. s., 147 ; 42 How. Pr. 33. Eevehsed, 14 Abb. Pr., N. s., 1 ; 50 N. Y; 338. Minick v. City of Troy, 19 Hun 253. Affirmed, 83 N. Y. 514. Minier v. Minler, 4 Lans. 421. Contra, 7 Lana. 29. Minnesota Central R'y Co. v. Mor- gan, 52 Barb. 217. Affirmed, 6 Alb. L. J. 173. Mitchell V. Blain, 5 Paige 588. Re- viewed, 24 Hun 214. Mitchell V. Carter, 14 Hun 448. Distin- guished, 22 Hun 404. Mitchell V. Culver, 7 Cow. 336. Applied, 3 How. Pr. 28. Mitchell V. HaU, 7 How. Pr. 490. Fol- lowed, 9 How. Pr. 263, 264. Contra, Id. 86, 91. Mitchell V. New York Central, &c., R. R. Co., 2 Hun 535 ; 64 N. Y. 655. Dis- , TINGUISHED, 23 Hun 449, 451. Mitchell V. Read, 19 Hun 418. Af- firmed, 84 N. Y. 556. Motion denied, 24 Hun VII. Mitchell V. Read, 61 N. Y. 123. Fur- ther APPEAL, 84 N. Y. 557. Mitchell V. Thorp, 5 Wend. 287. Dis- tinguished, 60 N. Y. 377. Mitchell V. Westervelt, 6 How. Pr. 265, Followed, 6 How. Pr. 413, 415, 465, 466, Contra, 4 Id. 361 ; 8 Id. 495. Mixer v. Kuhn, 4 How. Pr. 409. Con- tra, 4 How. Pr. 240, 246. Moak V. Coats, 33 Barb 498. Followed, 10 Hun 68, 72. Moakley v. Riggs, 19 Johns. 69. Dis- tinguished, 62 N. Y. 94. Moehring v. Mitchell, 1 Barb. Ch. 264, Affirmed, 3 Den. 610. Moeller v. Bailey, 14 How. Pr. 359, Contra, 1 Duer 636. Moffat V. Strong, 10 Johns. 12, 13. Ee ITERATED, 11 Johna. 347. Mohawk, &c., R. R. Co. v. Clute, 4 Paige 384, 385. Distinguished 61 N. Y. 271 Mojarietta v. Saenz, 58 How. Pr. 505, AppEii dismissed, 80 N. Y. 547. Molony v. Dows, 8 Abb. Pr. 316. Not APPLICABLE, 6 Hun 78. Overruled, 54 Barb. 32 ; 26 How. Pr. 257, 261. Monarque v. Monarque, 19 Hun 332. Eevebsed, 80 N. Y. 321. Moncrief v. Ross, 50 N. Y. 431. Fol- lowed, 4 Hun 411, 412. Monroe v. Monroe, 27 How. Pr. 208. Followed, 19 Abb. Pr. 165, 166 ; 29 How. Pr. 68, 70, 71. Contra, 27 Id. 385. See 29 Id. 225. Montgomery County Bank v. Al- bany City Bank, 8 Barb. 396. Modified, 7 N. Y. 459. CASES CRITICISED. 367 Montgomery County Bank v. Al- bany City Bank, 7 N. Y. 459. Distin- «TjiSHED, 2 Thomp. & C. 122. See 11 N. Y. 203, 211. Montgomery v. United States, 15 Wall. 395. Not followed, 81 N. Y. 285, 290. Moody V. Leverioh, 14 Abb. Pr., n. s., 145. Approved and followed, 14 Abb. Pr., u. s., 156, 162. Moody V. Osgood, 50 Barb. 628. Fol- lowed, 80 N. Y. 390, 393. Moody V. Supervisors of Niagara County, 46 Barb. 659. Followed, 83 N. Y. 189. Mooers V. White, 6 Johns. Ch. 360, 375. Ebviewed, 55 Cai. 580, 583. Moore, Matter of, 8 Hun 513. Fol- lowed, 23 Hun 350. Moore v. Calvert, 9 How. Pr. 474. Con- tra, 17 How. Pr. 68. Moore v. Cookroft, 9 How. Pr. 479. Followed, 12 Abb. Pr. 225 ; 20 How. Pr. 488, 489. Moore v. Cross, 23 Barb. 534. Disap- proved, 7 Abb. Pr. 400. Moore V. Cross, 19 N. Y. 227. Distin- «niSHED, 40 N. Y. 492 n. Followed, 13 Abb. Pr., N.S., 175, 178; 44 How. Pr. 152, 154. Moore v. Hamilton, 44 N. Y. 666. Ex- plained, 83 N. Y. 598. Moore v. Hudson River Railroad Co., 12 Barb. 156. Explained, 14 Abb. Pr., n. s., 435, 440. Moore v. Littel, 41 N. ,Y. 66. Distin- •«uiSHBD, 62 N. Y. 123. Followed, 1 Hun 590 ; 4 Thomp. & C. 126, 127. Moore v. Livingston, 14 How. Pr. 1. Eeversed, 28 Barb. 543. Moore V. Lyons, 25 Wend. 119. Fol- lowed, 2 Hun 534 ; 5 Thomp. & C. 108. Moore V. Metropolitan Nat. Bank, 55 N. Y. 41. Distinguished, 61 N. Y. 113 ; 64 Id. 224. Explained, 22 Hun 346, 347. Not applicable, 71 Mo. 193, 198. Eeviewed, 17 Blatchf. (U. S.) 465. Moore v. Moore, 47 Barb. 257. Af- FiEMED, 6 Alb. L. J. 173. Moore V. Moore, 21 How. Pr. 211. Fol- lowed, 6 Hun 185. Moore v. Shaw, 15 Hun 428. Appeal DISMISSED, 77 N. Y. 512. Moore V. Sloan, 50 Barb. 442. Disap- proved, 82 N. Y. 32, 38. Moore V. "Wait, 3 Wend. 104. Distin- CUiSHED, 80 N. Y. 408, 412. Moore v. Westervelt, 2 Duer 59. Ee- versed, 21 N. Y. 103. Moore V. Westervelt, 27 N. Y. 239. Followed, 41 Superior 284. Moore v. W^ood, 19 How. Pr. 405. Fol- lowed, 4 Hun 509, 510. Moores v. Lunt, 13 Abb. Pr., n. s., 166. Ee- versed, 1 Hun 650 1 4 Thomp. & C. 154. Moran v. McCleams, 63 Barb. 185. Dis- tinguished, 66 N. Y. 65. Moran v. McCleams, 43 How. Pr. 77. See 43 How. Pr. 80. Morange v. Morris, 3 Abb. App. Dec. 314 : 3 Keyes 48. .See 52 How. Pr. 190. Morange v. Mudge, 6 Abb. Pr. 243. Overruled, 5 Daly 143. Morehouse v. CrUley, 8 How. Pr. 431. Approved, 12 Abb. Pr., n. s., 467 ; 1 Sheld. 281. Criticised, 5 Abb. Pr. 384. Morehouse v. Mathews, 2 N. Y. 514. Distinguished, 4 Hun 264; (not in conflict with 17 N. Y. 340) ; 44 Barb. 120, 123. Morehouse v. Yeager, 41 Superior 135. Affirmed, 71 N. Y. 594. Morel V. Garelly, 16 Abb, Pr. 269. Ee- viewed, 38 Superior 215. Morey v. Webb, 65 Barb. 22. Affirmed, 58 N. Y. 350. Morgan v. Avery, 7 Barb. 656. Af- firmed, 7 Barb. 664 n. Approved, 13 Barb. 412. Contra, 7 How. Pr. 360, 364. Morgan v. Crocker, 3 Thomp. & 0. 301. Eeversed on facts, 62 N. Y. 626. Morgan v. King, 30 Barb. 9. Eeversed, 32 How. 614 n. Morgan v. Morgan, 1 Abb. Pr., n. s., 40. Approved, 67 Barb. 321 ; 4 Hun 640. Criti- cised, 60 How. Pr. 258 n, Morgan v. Morgan, 39 Barb. 20. Ee- versed, 13 Abb. Pr., n. s., 361. Morgan v. Schuyler, 21 Alb. L. J. 154. Distinguished, 46 Superior 559. Morgan v. Skiddy, 62 N. Y. 319. Fol- lowed, 83 N. Y. 34. Morgan v. Skidmore, 55 Barb. 263. Affirmed, 6 Alb. L. J. 173. Followed, 39 Superior 189; 6 Stew. (N. J.) 74. Morgan v. Smith, 5 Hun 220. Distin- guished, 7 Hun 244, 245. Morgan v. Whittaker, 14 Abb. Pr., n. s., 127. Contra, 64 N. Y. 120. - Morrell v. Dickey, 1 Johns. Ch. 153. Followed, 57 How. Pr. 209, 213. Morrell v. Irving Fire Ins. Co., 33 N. Y. 429. E'OLLOWED, 83 N. Y. 396, 397. Morrell v. Morrell, 1 Barb. 318. Ee- versed, 3 Barb. 236. Distinguished, 61 N. Y. 407. Morris v. Husson, 8 N. Y. 204. Doubted, 43 Iowa 194, 203. Morris v. Mowatt, 2 Paige 586. Dis- tinguished, 52 N. Y 581. Followed, 7 Lans. 440. Morrisv. People, 3 Den. 381,382. Fol- lowed, 60 How. Pr. 262. 368 CASES CRITICISED. Morris v. Phelps, 5 Johns. 49. Ex- plained, 3 Hill 134. Followed, 12 Johns. 127. Ebyiewed, 52 Wis. 695. Morris v. Sliter, 1 Den. 59. Followed, 42 Superior 4. . Morris v. "Wadsworth, 17 Wend. 103. 119. Appboved, 83 N. Y. 415. Morris v. Ward, 36 N. Y. 587. Fol- lowed, 40 Superior 118. Mdrris v. "Whitoher, 20 N. Y. 41. Fol- lowed, 82 N. Y. 562, 567. Morrison v. Ide, 4 How. Pr. 304. Fol- lowed, 6 How. Pr. 413, 414. Mors V. Stanton, 51 N. Y. 649. Distin- GTTiSHED, 4 Eedf. 94. Morse v. Cloyes, 11 Barb. 100. Re- versed, Seld. No. {2d ed.) 184. Morse v. Keyes, 6 How. Pr. 18. See 8 How. Pr. 75. Moseley v. Moseley, 15 N. Y. 334. Ckiticised, 32 Ind. 486. Moses V. BierUng, 31 N. Y. 462. Fol- lowed, 83 N. Y. 381, 384 ; 38 Superior 383 ; 42 Id. 119. Moses V. Sun Mut. Ins. Co., 1 Duer 159. Applied, 46 Superior 440. Distin- GmsHED, Id. 74. Mosher v. Hotchkiss, 3 Keyes 161. Followed, 38 Superior 441. Eeviewed, 9 Abb. N. Cas. 378. Mosher v. People, 5 Barb. 575. Distin- guished, 62 N. Y. 280. Moss V. AveriU, 10 N. Y. 459. Fol- lowed, 42 Superior 1. Moss V. MoOuUough, 7 Barb. 279. Appeoved, 9 How. Pr. 436, 438 ; 5 Oreg. 308. Moss V. Oakley, 2 Hill 265. Disap- proved, 5 Den. 567. Explained, 5 Hill 131. Moss V. Priest, 19 Abb. Pr. 314. Distin- guished, 23 Hun 114, 116. Mott V. Consumers' Ice Co., 52 How. Pr. 148. Afeirmbd, 52 How. Pr. 244. Mott V. Hicks, 1 Cow. 513. Distin- guished, 8 Mo. App. 378. Mott V. Mott, 8 Hun 474. Modified, 68 N. Y. 246. Mott V. Small, 20 Wend. 212, 214. Af- firmed, 22 Wend. 403. Mottram v. Mills, 2 Sandf. 189. Lim- ited, 46 Superior 534. Moulton V. Beeoher, 52 How. Pr. 230. Affirmed, 53 How. Pr. 86. Moulton V. Norton, 5 Barb. 286. In PART OVERRULED, 9 N. Y, 605. Mount V. Waite, 7 Johns. 434. Ap- proved, 11 Johns. 29. Mt. Morris Square, In re, 2 Hill 14, 27, 28. Followed, 82 N. Y. 506, 508.: Mowatt V. Carow, 7 Paige 328. Ap- proved, 84 N. Y. 521. Mower v. Kip, 2 Edw. 165. Eeveesed, 6 Paige 88. Mowrey v. "Walsh, 8 Cow. 238. Com- mented ON, 3 Barb. Ch. 451. Mowry v. Bishop, 5 Paige 98. Criti- cised, 67 N. Y. 169. Mowry v. Sanborn, 62 Barb. 223. Ee- VERSED, 65 N. Y. 581. Moyer v. Hinman, 17 Barb. 137. Modi- fied, 13 N. Y. 180. Criticised, 41 Barb. 60. Moyer v. Hinman, 13 N. Y. 180. Fol- lowed, 41 Barb. 60. MuUaley v. People, 12 Week. Dig. 236 Affirmed, Oct. 11th, 1881. Muller V. Eno, 14 N. Y. 597. Followed 3 Lans. 236. Muller V. Pondir, 55 N. Y. 325, 332 Followed, 39 Superior 302. MuUer v. Sautter, 28 How. Pr. 87 Contra, 29 How. Pr. 1. Mullins V. People, 24 N. Y. 403. Fol- lowed, 6 Nev. 100, 103. Mumford v. Brown, 6 Cow. 479. Dis- tinguished, 3 Thomp. & C. 300. Mundorff v. Mundorfif, 1 Hun 41. Ap PEAL DISMISSED, 59 N. Y. 635. Munn V. Commission Co., 15 Johns. 44 55. Followed, 76 111. 246. Munroe v. Merchant, 26 Barb. 383, 384 Followed, 2 Hun 610. Muneell v. Lewis, 2 Den. 224. Distin GUISHBD, 55 N. Y. 390. Munson v. Hegeman, 10 Barb. 112. Be- VERSED, Seld. No. (2d ed.) 63. Munson v. HoweU, 12 Abb. Pr. 77 ; 20 How. Pr. 59. Contra, 7 How. Pr. 208 ; 9 Id. 349, Murdock v. Chenango Co. Mutual Ins. Co., 2 N.Y. 210. Explained, 1 Lans. 30 Murdock v. Gifford, 18 N. Y. 28. Dis tinguished, 40 N. Y. 288, 292; 66 Id. 497. Murphy v. Boston, &o., R. B. Co., 5J How. Pr. 197. See 59 How. Pr. 258. Murphy v. People, 3 Hun 114. Af FIRMED, 63 N. Y. 590. Murray v. Bethune, 1 Wend. 191. Fol LOWED, 14 So. Car. 278. Murray v. Haskins, 4 How. Pr. 263 Concurred in, 4 How. Pr. 283. Contra, f Id. 172. Murray v. Hudson River R. R. Co., 4' Barb. 196. Affirmed, 6 Alb. L. J. 198. Fol LOWED, 28 Wis. 304. Murray v. Judson, 11 Week. Dig. 28, 29 22 Hun 386. Distinguished, 24 Hun 26. Murray v. Lylbum, 2 Johns. Ch. 441 Eeviewed, 72 Me. 401. Murray v. New York Life Ins. Co., 1! Hun 850. Reversed, 24 Hun vii. Murray v. Rlggs, 15 Johns. 571. jSee ~ Cow. 547 ; 11 Wend. 197. Murray v. Smith, 9 Busw. 689. Over RULED OS to cosU, 2 Laus. 337. CASES CEITICISED. 369 Muscott V. ■Woolwoi'th, 13 How. Pr. 336. OvEBRTJLED, 41 N. Y. 215, 218. Muscott V. 'Woolworth, 14 How. Pr. 477. Appkovbd, 41 N. Y. 215, 218. Musgrave v. Sherwood, 53 How. Pr. 311. Contra, 54 How. Pr. 338. Mutual Life Ins. Co. v. Davies, 44 Su- perior 172, 173. Followed, 9 Abb. N. Cas. 374 ; 60 How. Pr. 439. Mutual Life Ins. Co. v. Hojrt, 10 Week. Dig. 275. Reversed, Oct. 4th, 1881. Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541. Approved, 84 N. Y. 337. Mutual Life Ins. Co. v. Nat. Bank of Newburgh, 18 Hun 371. Modified, 79 N. Y. 568. Mutual Safety Ins. Co. v. Hone, 2 N. Y. 235. Followed, 56 N. Y. 104. Muzzy V. Shattuck, 1 Den. 233. Fol- lowed, 18 Minn. 206. Myers v. Burns, 35 N. Y. 269. Fol- lowed, 1 Thomp. & C. 116. Myers V.Davis, 22 N.Y. 489. Approved, 24 Hun 98. Explained, 82 N. Y. 10, 17. Myers v. Eddy, 47 Barb. 263. Re- viewed, 8 Abb. N. Cas. 127, 128. Myers v Feeter, 4 How. Pr. 240. Ex- plained, 4 How. Pr. 409, 411. Contra, 5 Id. 135. Myers v. Maloom, 6 Hill 292. Fol- lowed, 80 N. Y. 579, 584. Reviewed, 8 Abb. N. Cas. 361. Myers v. Smith, 48 Barb. 614. Contra, 55 Barb. 426; 38 How. Pr. 123. Mygatt V. N. Y. Protection Ins. Co., 21 N. Y. 53. FoLLOWiiD, 4 Abb. App. Dec. 582. Mygatt V. "Washburn, 15 N. Y. 316. Followed, 4 Lans. 162, 163. Mygatt V. ■Wilcox, 45 N. Y. 306, 309. Followed, 23 Hun 99, 101. N. Napier v. McLeod, 9 "Wend. 120. Dis- tinguished, 82 N. Y. 591, 595. See Id. 599. Nason v. Luddington, 55 How. Pr. 342. Affirmed, 56 How. Pr. 172. Nathan v. "Whitlock, 3 Edw. Ch. 215 ; 9 Paige 152. Reviewed, 1 McCraiy (U. S.) 91. Nat. Bank v. Norton, 1 Hill 572. Re- viewed, 53 Md. 25. Nat. Bank of Auburn v. Le^wis, 10 Hun 468. Reversed, 19 Alb. L. J. 178; 75 N. Y. 516. Nat. Bank of Auburn v. Lewis, 75 N. Y. 516. Modified on re-argument, 81 N. Y. 15. Nat. Bank of Chemung v. Elmira, 53 N. Y. 49. DisTmoTTiSHED, 80 N. Y. 302, 311. Followed, 82 Id. 351, 357. Nat. Bank of Fort Edward v. "Wash- ington County Nat. Bank, 5 Hun 605. Appeal dismissed, 72 N. Y. 606. Nat. Bank of Newburgh v. Bigler, 18 Hun 400. Affirmed, 83 N. Y. 51. Nat. Bank of Newburgh v. Smith, 5 Hun 183. Affirmed, 66 N. Y. 271. Nat. Bank of the Commonwealth v. Temple, 2 Sweeny 344. Contra, 21 How. Pr. 114; 42 Id. 198, 199. Nat. Fire Ins. Co. v. McKay, 21 N. Y. 191. Followed, 3 Hun 744 ; 6 Thomp. & C. 100. Nat. Life Ins. Co. v. Minch, 6 Lans. 100. Reversed, 53 N. Y. 144. Nat. Trust Co. v. G-leason, 42 Superior 100. Reversed, 77 N. Y. 400. Nat. Union Bank of Watertown v Landon, 45 N. Y. 410. Distinguished, 6ti> N. Y. 429. Nebenzahl, Matter of, 57 How. Pr. 328. See 59 How. Pr. 192. Neff V. Friedman, 2 Sweeny 607. Fol- lowed, 36 Superior 234. Neilson v. Blight, 1 Johns. Cas. 205. Approved, 12 Jolms. 281. Neilson v. Columbian Ins. Co., 3 Cai. 108. Reviewed, 44 N. Y. 220. Neilson v. Neilson, 5 Barb. 565. Re- viewed, 55 Cal. 541. Nellis V. Clark, 20 Wend. 24; 4 HUl 424. Explained and confirmed, 15 N. Y. 335. Nellis V. McCam, 35 Barb. 115. Over- ruled, 44 Barb. 120. -See 31 How. Pr. 373. Nelson v. Eaton, 7 Abb. Pr. 305. Re- versed, 26 N. Y. 410. Nelson v. McO-iffert, 3 Barb. Ch. 158. Approved, 56 How. Pr. 129. Nelson v. Mayor, &c., of New York, 63 N. Y. 535. Distinguished, 68 N. Y. 27. Nelson v. Plimpton Fireproof Elevat- ing Co., 55 N. Y. 484. Followed, 42 Supe- rior 119. Nelson v. Rooknagle, 3 Bosw. 459. Re- versed, 25 How. Pr. 591 n. Nessle v. Reese, 19 Abb. Pr. 240; 29 How. Pr. 282. See 14 Abb. Pr., N. s., 273; 19 Id. 240. Neville v. Neville, 22 How. Pr. 500. Followed, 4 Lans. 184. Contra, 25 How. Pr. 181, 182, 189. 2a 370 CASES CRITICISED. Ne-w York African Soc. v. Variok, 13 Johns. 38. Explained, 32 Ind. 378. New York, cfeo., R. B. Co., Matter of, V. Kipp, 46 N. Y. 553. Keviewed, 15 Nev. 156. New York, &o., R. R. Co. v. Corey, 5 How. Pr. 177, 181. Followed, 6 How. Pr. 223, 224. See 10 How. Pr. 169, 175. New York, &o., R. R. Co. v. Ketchum, S Keyes 24. Distingtoshed, 47. N. Y. 44, 46. New York, Sso., R. R. Co. v. Schuyler, 1 Abb. Pr. 417. See 38 Barb. 534. New York, &c., R. R. Co. v. Schuyler, 17 N. Y. 592. Distinguished, 62 N. Y. 470. New York, &c., R. R. Co v. Schuyler, 34 N. Y. 30. Distinguished, 22 Hun 352 ; 62 N. Y. 470. Keiteeated, 1 Thomp. & C. 135. See 34 How. Pr. 302. New York, &c., R. R. Co. v. Van Horn, 57 N. Y. 473, 477. Approved, 24 Hun 465. New York Balance Dock Co. v. Mayor, &c., of N. Y., 8 Hun 247. Fol- lowed, 83 N. Y. 535. New York Catholic Protectory, Mat- ter of, 8 Hun 91. Followed, 10 Hun 546. New York Central, &c., R. R. Co., Mat- ter of, 5 Hun 86. Affirmed, 66 N. Y. 407. Followed, 10 Hun 49, 52. New York Central, &c., R. R. Co., Mat- ter of, 5 Hun 105. Appeal dismissed, 64 N. Y. 60. New York Central, ^c, R. R. Co., Mat- ter of, 64 N. Y. 60. Followed, 82 N. Y. 95, 100. New York Central Ins. Co. v. National Protection Ins. Co., 20 Barb. 475. Disap- proved, 2 Disn. (O.) 113. New York Central Ins Co. v. National Protection Ins. Co., 14 N. Y. 85. Ex- plained, 54 N. Y. 581. New York Central R. R. Co., Matter of, V. Buffalo, &c., R. R. Co., 49 Barb. 501. Affirmed, 6 Alb. L. J. 173. New York Elevated R. R. Co., Mat- ter of, 70 N. Y. 327, 359. Followed, 82 N. Y. 95, 101. Eeviewed, 46 Superior 161. New York Fire Ins. Co. v. Burrell, 9 How. Pr. 398. Distinguished, 68 How. Pr. 100, 101. See 9 Id. 254. New York Guaranty, &c., Co. v. Oleason, 45 Superior 613. Eevbrsed, 78 ISr. Y. 503. New York Guaranty &c., Co. v.. Roberts, 43 Superior 551. Eeversed, 9 Week. Dig. 373. New york Ice Co. v. Northwestern Ins. Co., 20 How. Pr. 424. Contra, 21 How. Pr. 296. NeW York Life Ins. Co. v. Staats, 21 Barb. 571. Affirmed, 17 N. Y. 469. New York Life Ins. and Trust Co. v Covert, 29 Barb. 435. Eeversed, 33 How Pr. 619. New York Piano Co. v. New Havei Steamboat Co., 2 Abb. Pr., n. s,, 357, 358 Criticised, 25 Wis. 146. New York Prot. Epis. Pub. School Matter of, 47 N. Y. 556. See 52 How. Pr 120, 122 n. New York Prot. Epis. Pub. School Matter of, 75 N. Y. 324, 327. Criticised 84 N. Y. 605. New York State Loan, Barb. 457. Dissenting opinion, 30 How. Pr, 417. People, ex rel. Devlin, v. Peabody, 5 Abb. Pr. 194. Distinguished, 59 How. Pr, ' 418 ; 22 Hun 471. 380 CASES CRITICISED. People, ex rel. Dilclier, v. Trustees of St. Stephen's Clmroli, 3 Lans. 434. Affirmed, 53 N. Y. 103. People, ex rel. Disosway, v. Flake, 14 How. Pr. 527. Followed, 27 How. Pr. 158, 159, 160. See 20 How. Pr. 306. People, ex rel. Donovan, v. Connor, 6 Hun 250. Weit of ebeor quashed, 64 N. Y. 481. People, ex rel. Doyle, v. Green, 3 Hun 755. Approved, 60 How. Pr. 488. People, ex rel. Dumont, v. Tompkins Oeneral Sessions, 19 Wend. 154. Cor- JBECTED, 5 Hill 443. People, ex rel. Dunkirk, Sec, R. R. Co., V. Batohellor, 53 N. Y. 128. Distin- guished, 3 Hun 95; 4 Thomp. & C. 382; 5 Id. 521. Followed, 24 Hun 523. Limited, 57 N. Y. 192. Keviewbd, 13 Otto (U. S.) 813 ; 2 Trans. Bep. 763. People, ex rel. Dunkirk, ex rel. Hubbard, v. Harris, 63 N. Y. 391. Followed, 12 Hun 193. People, ex rel. Hudson, v. Fire Com- missioners, 77 N. Y. 605. Followed, 82 N. Y. 506, 508. People, ex rel. Irwin, v. Sawyer, 52 N. Y. 296. Followed, 1 Thomp. & C. 115. People, ex rel. Israel, v. Tibbetts, 4 Cow. 3s4. Reviewed, 71 Me. 383. People, ex rel. Jackson, v. Potter, 47 N. Y. 375, 376. In point, 14 So. Car. 204. People, ex rel. Jefferson, v. Gardner, 51 Barb. 352. Followed, 4 Hun 598 ; 24 Id. 492 ; 42 Conn. 441. People, ex rel. Johnson, v. Nevins, 1 Hill 154. Followed, 3 Hun 636, 637; 6 Thomp. & C. 117, 118. People, ex rel. Johnson, v. Super- visors of Delaware County, 9 Abb. Pr., N. a , 408. Modified, 45 N. Y. 196. People, ex rel. Johnson, v. Super- visors of Delaware County, 45 N. Y. 196, 199. Eb-ai'fibmed, 82 N. Y. 80, 83. People, ex rel. Kearney, v. Kelly, 22 How. Pr. 309. Contra, 13 How. Pr. 173 ; 14 Id. 465. People, ex rel. Kedian, v. Neilson, 5 Thomp. & C. 367. Approved, 23 Hun 568, 571. People, ex rel. KeUey v. Dusenbury, 2 Abb. N. Cas. 360. Eeversed, 54 How. Pr. 73. People, ex rel. Keiley, v. Spier, 54 How. Pr. 73 ; 12 Hun 70. Eeversed, 57 How. Pr. 274. People, ex rel. Kelly, v. Haws, 12 Abb. Pr 192 ■ 21 How. Pr. 117. Followed, 16 Abb. Pr., N. s., 64, 69 ; 5 Daly 198. People, ex rel. Kenyon, v. Suther- land, 16 Hun 192. Eeversed, 81 N. Y. 1. People, ex rel. Kinney, v. Super- visors of Cortland County, 58 Barb. 139. Distinguished, 24 Hun 57. People, ex rel. liansing, v. Tremain, 9 Hun 573. Apeibmed, 68 N. Y. 628. People, ex rel. Larrabee, v. Mulhol- land, 19 Hun 548. Affirmed, 82 N. Y. 324. People, ex rel. Latorre, v. O'Brien, 6 Abb. Pr., N. s., 63. Affirmed, 41 N. Y. 619. Approved, 8 Abb. N. Cas. 427, 430. Criti- cised, 2 Sweeny 344. See 40 How. Pr. 35, 36. People, ex rel. Lent, v. HasoaU, 18 How. Pr. 118. Distinguished, 50 Wis. 665. People, ex rel. Loew, v. Batchelor, 28. Barb. 310 : 22 N. Y. 128. Overruled, 52 N. Y. 374. People, ex rel. Lovett, v. Rogers, 2: Paige 103. Explained, 1 Hill 169. Fol- lowed, 43 Superior 344. People, ex rel. Lovrell, v. Town Au- ditors of Westford, 53 Barb. 555. Af- firmed, 41 N. Y. 619. People, ex rel. Lumley, v. Lewis, 28 How. Pr. 470. Affirmed, 41 N. Y. 619. . People, ex rel. Luther v. Onondaga. Com. Pleas, 19 Wend. 79. Distinguished, 16 W. Va. 642, 643. People, ex rel. McOonvill, v. Hills, 3& N. Y. 449. Distinguished, 50 N. Y. 561. People, ex rel. McLean, v. Plagg, 46 N. Y. 401. Distinguished, 53 N. Y. 138. People, ex rel. McMuUen, v. Shep- ard, 36 N. Y. 285. Criticised, 55 N. Y. 65. People, ex rel. Manning, v. New York Com. Pleas, 13 Wend. 649. Ex- plained, 2 Hill 357. People, ex rel. Martin, v. Brown, 55 N. Y. 180, 196. Approved, 84 N. Y. 539. People, ex rel. Mayor, &c., of New York, V. Nichols, 58 How. Pr. 200 See 58 How. Pr. 359. People, ex rel. Merritt, v. Lawrence, 6 Hill 244. Considered overruled, 5 Laus.. 127. People, ex rel. Mitchell, v. Lawrence, 54 Barb. 589. Followed, 40 How. Pr. 50, 52. People, ex rel. Munday, v. Fire Commr's, 72 N. Y. 445. Approved and distinguished, 60 How. Pr. 133. Explained, 23 Hun 317, 320. People, ex rel. Murphy, v. Kelly, 76 N. Y. 474, 490. Followed, 23 Hun 568, 572. People, ex rel. Murray, v. Justices of the Special Sessions, 74 N. Y. 406. Followed, 83 N. Y. 244. People, ex rel. Musgrove, v. Com- mon Pleas, 9 Wend. 429. Disapproved, 41 How. Pr. 164, 166. People, ex rel. Mygatt, v. Super- visors of Chenango Co., 11 N. Y. 563. Considered, 45 N. Y. 682, 684. People, ex rel. Navano, v. Van Nort^ 64 Barb. 205. Distinguished, 1 Hun 26 ; 3. Thomp. & C. 753. Followed, 2 Id. 63. 382 CASES CRITICISED. People, ex rel. New York, &c., R. R. Co., V. Comm'rs of New York City, 23 Hun 687. Followed, 23 Hun 697. People, ex rel. New York, &c., R. R. <3o., V. Havemeyer, 4 Thomp. & 0. 365. Distinguished, 64 K. Y. 106. ' People, ex rel. New York Elevated H. R. Co., V. Oomm'rs of Taxes, 19 Hun 460. AiTiRMED, 82 N. Y. 459. People, ex rel. Nichols, v. Cooper, 57 How. Pr. 463. See 58 How. Pr. 359. People, ex rel. Noble, v. Abel, 3 Hill 109. Commented on, 2 Barb. Ch. 291. People, ex rel. Odle, v. Kniskem, 60 Barb. 87. Eeversed, 54 K. Y. 52. People, ex rel. Otsego County Bank, -y. Supervisors of Otsego County, 51 N. Y. 401. Kevibwbd, 24 Hun 420. People, ex rel. Ottnaan, v. Commls- ■sioners of Highways of Se-ward, 27 Barb. 94. Distinguished, 63 N. Y. 396. People, ex rel. Pacific Mail Steam- ship Co., V. Oomm'rs of Taxes, 1 Thomp. & C. 611. See 3 Thomp. & C. 678. People, ex rel. Patohen, v. Supervi- sors of Kings Co., 7 Wend. 530. Oveb- RUiiED in pari, 60 How. Pr. 262. People, ex rel. Perkins, v. Havrkins, 46 N. Y. 9. Approved, 83 N. Y. 106. People, ex rel. Pinckney, v. Fire Commissioners, 54 How. Pr. 240. Af- firmed, 7 Hun 248. People, ex rel. Piatt, v. Stout, 19 How. Pr. 171. Approved and foi,lowed, 35 Barb. 254. People, ex rel. Reynolds, v. Flagg, 16 Barb. 503. Doubted, 22 How. Pr. 286, 287. Limited, 13 Abb. Pr. 375, 385. People, ex rel. Roberts, v. Bowe, 20 Hun 85. Eeversed, 81 N. Y. 43. People, ex rel. Robison, v. Supervi- sors of Ontario County, 17 Hun 501. Eeversed, 24 Hun vii. People, ex rel. Roman Catholic Or- phan Asylum Soc, v. Board of Educa- tion, 13 Barb. 400. Followed, 34 How. Pr. 327, 229. People, ex rel. Rosekrans, v. Has- kins, 7 Wend. 463. Eeviewed, 55 Cal. 540. People, ex rel. Ross, v. City of Brook- lyn, 69 N. Y. 605. See 55 How. Pr. 494. People, ex rel. Ryan, v. Green, 46 How. Pr. 169. Eeversed, 58 N. Y. 295. People, ex rel. Satterlee, v. Board of Police, 12 Hun 653. Eeviewed, 24 Kan. 297. People, ex rel. Satterlee, v. Board of Police, 75 N. Y. 38. Followed, 83 N. Y. 535. People, ex rel. Sears, v. Assessors of Brooklyn, 18 Hun 386. Affirmed, 84 N. Y. 610. People, ex rel. Sharkey, v. Goodwin, 50 Barb. 562, 564. Approved, 8 Abb. N. Cas. 430. People, ex re). Sims, v. Fire Depart- ment, 73 N. Y. 437. Approved, 60 How. Pr. 133 ; 23 Hun 320. People, ex rel. Smith, v. Village of Nelliston, 18 Hun 175. Appeal dismissed, 78 N. Y. 610. People, ex rel. Stanton, v. Tioga Com. Pleas, 19 Wend. 73. See 62 Barb. 500. People, ex rel. Stetzer, v. Rawson, 61 Barb. 619. Followed, 83 N. Y. 243. People, ex rel. Stryker, v. Stryker, 24 Barb. 649. Followed, 23 Hun 583, 585. People, ex rel. Supervisors of West- chester Co., V. Hadley, 14 Hun. 183. Eeversed, 20 Alb. L. J. 134. People, ex rel. Thurman, v. Ryan, Gen. T., Sept., 1881. Affirmed, 61 How. Pr. 452. People ex rel. Thurston, v. Auditors of Blmira, 20 Hun 150. Affirmed, 82 N. Y. 80. People, ex rel. To'wn of Schaghti- coke, V. Troy, &c., R. R. Co., 37 How. Pr. 427. Affirmed, 6 Alb. L. J. 174. People, ex rel. Tweed, v. Liscomb, 60 N. Y. 559. Considered, 11 Hun 392. Dis- tinguished, 66 N. Y. 10 ; 6 App. Cas. (Eng. L. E.) 241, 245, 246, 249. People, ex rel. Ulster, «fec., R. R. Co., V. Smith, 24 Hun 66 ; 11 Week. Dig. 224. Appeal dismissed. 24 Hun vii. ; 12 Week. Dig. 224. People, ex rel. Valiente, v. Dyck- man, 24 How. Pr. 222, 224. Overruled, 5 Daly 413. People, ex rel., Vanderbilt, v. Stil- well, 19 N. Y. 531. Distinguished and followed, 82 N. Y. 506, 508. People, ex rel. Van Keuren, v. Board of Town Auditors, 74 N. Y. 310, 311. Followed, 80 N. Y. 302, 311. People, ex rel. Van Nest, v. Comm'rs of Taxes, 80 N. Y. 573. Followed, 82 N. Y. 459, 463. People, ex rel. Van Rensselaer, v. Van Alstyne, 3 Abb. App. Dec. 575. Fol- lowed, 13 Hun 231. People, ex rel. Vasser, v. Berberrich, 11 How. Pr. 289. Contra, 11 How. Pr. 530, 542; 12 Id. 83. People, ex rel. Ward, v. Asten, 6 Daly 18. Affirmed, 62 N. Y. 623. People, ex rel. Weeks, v. Supervi- sors of Queens County, 18 Hun 4. Modi- fied, 82 N. Y. 276. People, ex rel. Westray, v. Mayor, &c., of New York, 16 Hun 309. Af- firmed, 82 N. Y. 491. CASES CRITICISED. J83 People, ex rel. 'Williams, v. Dayton, 1 Thomp. & C. 14 add. Beversed, 55 N. Y. ■367. People, ex rel. Williams, v. Dayton, 55 N. Y. 367. DiSTiNGTOSHED, 82 N. Y. 142, 144. People, ex rel. "Williams, v. Hulbert, 1 Code, N. s., 75 ; 5 How. Pr. 446. Ceiticised, 10 Hun 438, 440. People, ex rel. WiUiams, v. King- man, 24 N. Y. 559. Followed, 39 Conn. 235. People, ex rel. Ya-wger, v. Allen, 52 N. Y. 538, 542. Followed, 84 N. Y. 410. People, ex rel. Youmans, v. Supervi- sors of Delaware County, 47 How. Pr. 24. Eeversed, 2 Hun 102; 4 Thomp. & C.-336. People, ex rel. Youmans, v. Supervi- sors of Delaware County, 2 Hun 102 ; 4 Thomp. & C. 336. Keveesed, 60 N. Y. 381. Peoples' Bank of New York v. Bo- gart, 16 Hun 270. Affirmed, 81 N. Y. 101. Pepper v. G-oulding, 4 How. Pr. 310. Contra, 4 How. Pr. 325. Percy, Matter of, 36 N. Y. 651. Dis- TiWTJiSHED, 82 N. Y. 161, 165, 166. Perkins v. Mead, 22 How. Pr. 476. See 22 How. Pr. 477. Perkins v. N. Y. Central B. R. Co., 24 N. Y. 196. Inapplioable, 2 Hun 51. Perkins v. Savage, 15 Wend. 412, 414. Explained, 57 N. Y. 545. Perkins v. Squier, 1 Thomp. & C. 620. Disapproved, 8 Hun 222, 223. Perkins v. Taylor, 19 Abb. Pr. 146, 148. Followed, 83 N. Y. 48. Perkins v. "Warren, 6 How. Pr. 341. See 7 How. Pr. 17, 19. Perrin v. New York Central B. R. Co., 36 N. Y. 120. Distinguished, 64 N. Y. ■75. Perry v. Chester, 12 Abb. Pr., n. s., 131. Eevehsed, 53 N. Y. 240. Perry v. Chester, 53 N. Y. 240. Distin- -GuiSHBD, 60 How. Pr. 505. Perry v. GriflBn, 7 How. Pr. 263. Con- tra, 13 How. Pr. 13; 19 Id. 572. Perry v. Livingston, 6 How. Pr. 404. Distinguished, 22 Hun 183. Followed, 6 How. Pr. 408. Peters v. Delaplaine, 58 Barb. 401. Ar- MRMED, 6 Alb. L. J. 175. Peters v. Diossy, 3 E. D. Smith 115. Ex- plained, 41 How. Pr. 30, 33. Peterson v. Humphrey, 4 Abb. Pr. 394. Criticised and disapproved, 12 Abb. Pr., 3r. s., 93, 99. Peterson v. Mayor, &o., of New- York, 17 N. Y. 449, 453. Reviewed, 1 Flipp. (U. S.) 197. Peterson v. Walsh, 1 Daly 182. Over- ruled, 10 Abb. Pr., N. s., 144, 146. Petrie v. Fitzgerald, 1 Daly 401. Dis- tinguished, 1 Hun 691 ; 4 Thomp. & C. 217. Petty V. Tooker, 29 X. Y. 267. Fol- lowed, 4 Hun 225 ; 3 Thomp. & C. 280, 281 ; 6 Id. 545. ' ' Peyser v. Mayor, &c., of New York, 70 N. Y. 497. Distinguished, 83 N. Y. 104. Pfohl V. Simpson, 74 N. Y. 137. Dis- tinguished, 22 Hun 499. Phelan's Case, 9 Abb. Pr. 286. Contra, 21 How. Pr. 68, 73. Phelps V. Gebhard Fire Ins. Co., 9 Bosw. 404. Distinguished, 58 Barb. 325. Phelps V. Nowlen, 72 N. Y. 39. Ap- proved, 83 N. Y. 190. Phelps V. People, 6 Hun 401. Over- ruled m part, 6 Abb. N. Ca8. 2. See 74 N. Y. 277. ' Phelps V. People, 6 Hun 428. Affirmed, 72 N. Y. 365. Phelps V. People, 72 N. Y. 334. See 74 N. Y. 277. Phelps V. Racey, 60 N. Y. 10. Ap- proved, 13 Vr. {N. J.) 345. In point, 97 111. 332, 337. Philbin v. Patrick, 22 How. Pr. 1. Fol- lowed, 36 Superior 75. Philips V. Gorham, 17 N. Y. 270. Fol- lowed, 41 N. Y. 107, 110. Philips V. James, 1 Abb. Pr., n. s., 311, 314. Eevbrsed, 5 Thomp. & C. 274 ; 3 Hun 1. Philips V. Peters, 21 Barb. 351. Contra, in part, 9 N. Y. 85. Phillips, Matter of, 60 N. Y. 16. Dis- tinguished, 60 N. Y. 461 ; 81 Id. 139, 141. Explained, 9 Hun 615. Phillips, Petition of, 4 Thomp. & C. 484. Followed, 5 Thomp. & C. 344. Phillips V. Berick, 16 Johns. 136, 140. Approved, 49 Barb. 550. PhiUips V. McCombs, 53 N. Y. 494. Criticised, 82 N. Y. 103, 108. Phillips V. Mayor, &c., of New York, 2 Hun 212. Followed, 3 Hun 215. Phillips V. Rensselaer, &c., R. R. Co., 49 N. y. 177. Distinguished, 1 Hun 147 ; 3 Thomp. & C. 687. Phillips V. Wicks, 36 Superior 254. Fol- lowed, 39 Superior 183. Phinney v. Brosohell, 19 Hun 116. Af- firmed, 58 How. Pr. 492; 80 N. Y. 544. Phinney v. Brosohell, 80 N. Y. 544. FoLLdwED, 80 N. Y. 553, 554. Phinney v. Phinney, 17 How. Pr. 197. Distinguished, 60 How. Pr. 100. Phipps V. Carman, 23 Hun 150. Af- firmed, 84 N. Y. 650. 384 CASES CRITICISED. Phoenix v. Dupy, 53 How. Pr. 158. Not AUTHORITY, 55 How. Pr. 260. Phoenix Ins. Oo. v. Church, 56 How. Pr. 29. Reversed, 56 How. Pr. 493. Phoenix Ins. Oo. v. Continental Ins. Co., 14 Abb. Pr., n.s., 266. Followed, 24 Hun 384. Contra, 19 Abb. Pr. 240 ; 18 How. Pr. 534; 29 Id. 282. Phcenix Ins. Co. v. Floyd, 19 Hun 287. Affirmed, 83 N. Y. 613. Pierce v. Tuttle, 51 How. Pr. 193. Fol- lowed, 24 Hun 346. Pierce v. Tuttle, 1 Thomp.,& C. 139. Ke versed, 58 N. Y. 650. Pierrepont v. Barnard, 6 N. Y. 279, 304. Distinguished, 84 N. Y. 39. Pierson v. People, 79 N. Y. 424. Dis- tinguished, 80 N. Y. 301. Pike V. Van 'Wormer, 5 How. Pr. 171. .See 6 How. Pr. 99. Pike V. Van "Wormer, 6 How. Pr. 99. Followed, 6 How. Pr. 255. . Pilling V. Pilling, 45 Barb. 86. Contra, 1 Lans. 150. Pilsbury, Matter of, 56 How. Pr. 290. See 58 How. Pr. 260, 263. Pinckney's Case, 18 Abb. Pr. 356. Overruled, 30 How. Pr. 276, 277. Pinckney, Matter of, 22 Hun 474. Af- firmed, «4 N. Y. 645. Pinckney v. Hagadoru, 1 Duer 89. Ap- proved, 14 S. Y. 584. Pinckney v. Pinckney, 1 Bradf. 269. Ebviewed, 4 Redf. 50. Pindar v. Continental Ins. Co., 38 N. Y. 366. Distinguished, 47 N. Y. 602, 606. Pindar v. Besolute Fire Ins. Co., 47 N. Y. 114. Distinguished, 68 N. Y. 441. Pinneo v. Higgins, 12 Abb. Pr. 334. Followed, 6 Daly 100. Pinney v. Gleason, 5 Wend. 393. Dis- tinguished, 59 K Y. 371. Piper V. New York Central, &c., B. R. Co., 1 Thomp. & C. 290. Affirmed, 56 N. Y. 630. Followed, 3 Hun 339 ; 5 Thomp. & C. 559. Pimie, Matter of, 1 Tucker 119. Not IN POINT, 4 Redf. 47. Pitcher v. Carter, 4 Sandf. Ch. 1. Re- versed, Ct. of App., Dec. 30th, 1850. Pitcher v. Turin Plank Road Co., 10 Barb. 436. Not in point, 4 Hun 249. Pitt V. Davison, 37 N. Y. 235. Fol- lowed, 3 Hun 211 ; 5 Thomp. & C. 299. Re- viewed, 47 N. Y. 44. Pittmanv. Mayor, &c., of New York, 3 Hun 370. Explained, 9 Hun 216, 217. Pitts V. Pitts, 44 How. Pr. 64. Affirmed, 45 How. Pr. 45. See 52 N. Y. 593. Pitts V. Pitts, 44 How. Pr. 300. Af- firmed, 52 N. Y. 593. Pixley V. Clark, 35 N. Y. 520. Ex- plained, 8 Abb. N. Cas. 360. Place V. Butternuts "Woolen, &c., Manuf. Co., 28 Barb. 503. See 26 How. 601 n. Place V . Butternuts "Woolen, &c., Manuf. Co., 28 How. Pr. 184. Followed, 13 Abb. Pr., n. S., 298, 299. Plank V. Central R. R. Co., 60 N. Y. 607. Explained, 23 Hun 490, 491, 492, 493. Plant V. Long Island B. R. Co., lO' Barb. 26. Followed, 60 How. Pr. 400. Platner v. Platner, 78 N. Y. 90. Fol- lowed, 82 N. Y. 339, 347. Piatt V. Coman, 37 N. Y. 440. Limited,, 52 N. Y. 142. Piatt V. Piatt, 11 Abb. Pr., n. s., 110 ; 61 Barb. 52. Disapproved, 54 How. Pr. 370,. 374. Contra, 12 Hun 121, 124. Piatt V. Robins, 1 Johns. Cas. 276. Over- ruled, 7 Cow. 701. Plumb V. Cattaraugus Co. Mut. Ins. Co., 18 N. Y. 392. Distinguished, 2 Hun 405; 20N. Y. 53. Plummer v. Plummer, 7 How. Pr. 62.^ Not concurred in, 7 How. Pr. 458, 460. Plunkett V. Appleton, 41 Superior 159. Appeal dismissed, 66 N. Y. 645. Pohalski v. Mut. Life Ins. Co., 36 Su- perior 234. Affirmed, 56 N. Y. 640. Poillon V. Lawrence, 43 Superior 385. Reversed, 20 Alb. L. J. 95. Poillon V. Volkenning, 11 Hun 385. Re- versed, 72 N. Y. 300. PoUak V. Gregory, 9 Bosw. 116. Dis- tinguished, 60 N. Y. 370. Pollen V. Le Roy, 30 N. Y. 556. Ap- proved, 42 Superior 119. Pollitt V. Long, 3 Thomp. & C. 232. Re- versed, 56 N. Y. 200. Pomeroy v. Hulin, 7 How. Pr. 161. Fol- lowed, 5 Hun 642. Pond V. Comstock, 20 Hun 492. Fol- lowed, 23 Hun 95, 99. Pontius V. People, 21 Hun 328. Af- firmed, 82 N. Y. 339. Popham V. Baker, 1 How. Pr. 166. See 2 How. Pr. 137. Popham V. Cole, 66 N. Y. 69. Fol- lowed, 82 N. Y. 519, 523. Popham V. "Wilcox, 14 Abb. Pr., n. s., 206. Affirmed, 66 N. Y. 69. See 38 Supe- rior 274. Porter v. Clark, 12 How. Pr. 107. See 15 How. Pr. 355, 357. Porter v. Kemball, 53 Barb. 467. Re- affirmed, 3 Lans. 330. Porter v. Knapp, 6 Lans. 125. Reversed, 65 N. Y. 564. CASES CEITICISED. 385 Porter v. Parmley, 13 Abb. Pr., n. s., 104 • 43 How. Pr. 445. Eeveksed, 14 Abb. Pr., N. s., 16. Porter v. Talcott, 1 Cow. 359. Ap- proved, 10 Tex. App. 174. Porter v. "Williams, 5 How. Pr. 441. See 5 How. Pr. 446. Post V. Oamptaell, 18 Hun 51. Affibmed, but principle overruled, 83 N. Y. 279. Post V. Hover, 33 N. Y. 593. Ex- plained, 23 Hun 299, 304. Post V. Phoenix Ins. Oo., 10 Johns. 79. Explained and appboved, 11 Johns. 313. Potsdam, &o., R. R. Co. v. Jacobs, 10 How. Pr. 453. Contea, 8 How. Pr. 1, 5. Potter V. Bushnell, 10 How. Pr. 94, 96. Followed, 12 How. Pr. 73, 76. Potter V. Etz, 5 Wend. 74. Explained, 6 mil 389. Potter V. Van Vranken, 36 N. Y. 619. Disapproved, 47 N. Y. 248. Potter V. "Whittaker, 27 How. Pr. 10. Followed, 62 Barb. 563 ; 5 Lans. 504. Potts V. Mayer, 53 How. Pr. 368. Re- versed, 74 N. Y. 594. Poucher v. N. Y. Central R. R. Co., 49 N. Y. 263. Distinguished, 66 N. Y. 317. Poug'hkeepsie and Salt Point Plank Road Co. V. Griffin, 24 N. Y. 150. Fol- lowed, 58 N. Y. 401. Powell V. Powell, 6 Thomp. & C. 51. Eeversed, 71 N. Y. 71. Powers V. Bergen, 6 N. Y. 358. Dis- tinguished, 19 N. Y. 445, 461. Powers V. French, 4 Thomp. & C. 65. Distinguished, 71 N. Y. 411. Powers V. Shepard, 45 Barb. 524. See 49 Barb. 418. Powers V. Shepard, 35 How. Pr. 53. Affirmed, 6 Alb. L. J. 199. Pramagiori v. Pramagiori, 7 Eobt. 302. Distinguished, 61 N. Y. 411. Pratt V. Allen, 19 How. Pr. 450. Contra, 7 How. Pr. 97 ; 10 Id. 451 ; 12 Id. 26, 399 ; 22 Id. 470, 471. Pratt V. Coman, 37 N. Y. 440. Distin- guished, 81 N. Y. 218, 224. Pratt V. Grulick, 13 Barb. 297. Distin- guished AND EXPLAINED, 81 N. Y. 341, 345. Pratt V. Hoag, 5 Duer 631. Distin- guished, 41 Superior 274. Pratt V. Hudson River R. R. Co., 21 N. Y. 305. Distinguished, 81 N. Y. 268, 272. Followed, 38 Superior 455. Prentice v. Knickerbocker Life Ins. Co., 77 N. Y. 483. Distinguished and ex- plained, 80 N. Y. 48. Followed, 80 N. Y. 108, 112. Prentiss v. Graves, 33 Barb. 621. Dis- tinguished, 22 Hun 244. Presbyterian Congregation of Salem V ^oolf ™^' ® '^^°'*- ^^''- Explained, 55 President, . f Putnam v. Man, 3 Wend. 202. Doubted, 15 Barb. 47. Putnam v. Ritchie, 6 Paige 390. Ap PEOVED, 28 Wis. 415. Putnam v. "Wyley, 8 Johns. 432. Fol LOWED, 11 Johns. 383. Q. Querissle v. Hilliard, 3 Abb. Pr. 31. C!oNTBA, 15 How. Pr. 278, 281. Quimby v. Vanderbilt, 17 N. Y. 306. Distinguished, 53 N. Y. 369. Quln V. Mayor, &c., of New York, 44 How. Pr. 266. Distinguished, 6 Hun 506, 507. Quin V. Moore, 15 N. Y. 432, 435. Dis- APPBOVED, 51 Wis. 602. Quincey v. Francis, 5 Abb. N. Cas. 286. Explained, 60 How. Pr. 439. Quincey v. Young, 5 Daly 327. Ee- VERSED, 63 N. Y. 370. Quinn v. Hardenbrook, 54 N. Y. 83, Distinguished, 24 Hun 439. Quinn v. People, 71 N. Y. 561. Distin- guished, 80 N. Y. 334. ■ Quinn v. Skinner, 49 Barb. 128. Dis- tinguished, 41 N. Y. 289, 293. Quinn v. Van Pelt, 56 N. Y. 417. Dis- tinguished, 64 N. Y. 644. R. Radclifif V. Mayor, &c., of Brooklyn, 4 N. Y. 195. Appboved, 51 Wis. 663. Dis- tinguished, 58 N. Y. 423. Radclifif V. Rowley, 2 Barb. Ch. 23, 31, 32. Approved, 8 Fed. Eep. 776. Radway v. Graham, 4 Abb. Pr. 468. Followed, 38 Superior 490. Rae, Matter of, 5 Hun 455. Appeal dis- missed, 63 N. Y. 645. Rae V. Mayor, <&o., of New York, 39 Superior 192. Appeal dismissed, 62 N.Y. 631. Railway Passenger Assur. Co. v. "Warner, 1 Thomp. & C. 21 add. Reversed, 62 N. Y. 651. Rainsford v. Rainsford, 57 Barb. 58. Affirmed, 6 Alb. L. J. 175. Jlamaley v. Leland, 6 Bobt. 358. Re- versed, 43 N. Y. 539. Ramsdell v. Morgan, 16 Wend. 574. Criticised, 3 Thomp. & 0. 361. Ramson v. Mayor, &c., of New York, 24 Barb. 226. Approved, 5 Abb. Pr. 41, 46. Randall v. Orandall, 6 Hill 342. Con- tra, 57 How. Pr. 56. Randall v. Smith, 1 Den. 214. Over- EULED, 58 N. Y. 89, 90. Randall v. "Wilkins, 4 Den. 577. Over- ruled, 10 How. Pr. 517, 526. Ranney v. Peyser, 20 Hun 11. Eb- VEBSED, 83 N. Y. 1. Ransford v. Marvin, 8 Abb. Pr., n. s,, 432. Contra, 39 How. Pr. 287. Rapalye v. Rapalye, 27 Barb. 610. Fol- lowed, 3 Hun 453. Rappelyea v. Russell, 1 Daly 214. Dis- tinguished, 5 Daly 4. Ratcliffe v. Gray, 3 Keyes 510. Fol- lowed, 37 Superior 171. Rathbone v. Hooney, 58 N. Y. 463. Distinguished, 59 N. Y. 284. Rathbone v. "Warren, 10 Johns. 587. Followed, 84 N. Y. 239. Rathbun v. Ingalls, 7 Wend. 320. Com- mented ON, 5 Hill 395. Rathbun v. Ross, 46 Barb. 127. Lim- ited, 3 Thomp. & C. 429. Rathbun v. Sawyer, 15 Wend. 451. Overruled, 55 N. Y. 31. Raubitsohek v. Blank, 44 Superior 564. Affirmed, 80 N. Y. 478. Rawley v. Brown, 18 Hun 456. Fol- lowed, 60 How. Pr. 305. Rawls V. Carr, 17 Abb. Pr. 96. Contra, 12 How. Pr. 465. ' Rawls V. Deshler, 3 Keyes 572. Dis- tinguished, 60 N. Y. 49. Rawson v. Copland, 3 Barb. Ch. 166. Disapproved, 12 Hun 514. Limited. 59 N. Y. 581. Rawson v. Pennsylvania R. R. Co., 48 N. Y. 212. Distinguished, 54 N. Y. 515. Followed, 3 Thomp. & C. 227 ; 7 Ben. (U. S.) Ray V. Bogart, 2 Johns. Cas. 432, 438. Distinguished, 54 Cal. 469. CASES CRITICISED. Raymond v. Husson, 12 Week. Dig. 279. Appeal dismissed, Oct. 11th, 1881. Read v. Decker, 5 Hun 646. Appirmed, •67 N. Y. 182. ' Read v. Lambert, 10 Abb. Pr., n. s., 428. Beveesed, 4 Alb. L. J. 91. Reade v. Livingston, 3 Johns. Ch. 481. (Considered and applied, 5 Cow. 67 : 10 W. Va. 98. Reade v. "Waterhouse, 12 Abb. Pr., n. s., 255. Eeversed, 52 N. Y. 587. Reade v. Waterhouse, 52 N. Y. 587. PoiLowED, 45 Superior 154. Real V. People, 55 Barb. 551. See 8 Abb. Pr., N. s., 314. Real V. People, 42 N. Y. 270. Fol- XOWED, 1 Thomp. & C. 569. Reciprocity Bank, Matter of, 22 N. Y. •9. Explained, 23 N. Y. 508. Rector V. Clark, 12 Hun 189. Eeversed, 20 Alb. L. J. 240. Rector, &c., of Trinity Churcli v. HigginB, 48 N. Y. 532. Distinguished, 37 Superior 79. Followed, 36 Id. 79. Be- viEWED, 38 Id. 215. Rector of Ohurch of Redeemer v. Crawford, 43 N. Y. 476. Followed, 23 Hun 271, 272. Redfleld v. Middleton, 7 Bosw. 649. Distinguished, 1 Abb. Pr., n. s., 16, 22. Reed v. Drake, 7, Wend. 345, 346. Fol- lowed, 59 Mo. 177. Reed v. Farr, 35 K. Y. 117. Followed, 37 Superior 171. Reed v. Gannon, 3 Daly 414. Eeversed, 50 N. Y. 345. Reed v. MoCourt, 41 N. Y. 441. Fol- lowed, 37 Superior 171. Reed V. People, 42 N. Y. 270. Followed, 51 N. Y. 643. Reed v. RandaU, 29 N. Y. 358. Ap- proved, 4 Lans. 5. Distinguished, 61 Barb. 238 ; 7 Hun 378, 542 ; 52 N. Y. 420 ; 57 N. Y. 21. Explained, 54 N. Y. 590. Followed, 7 Daly 19 ; 35 Superior 106. Reformed Churcli of G-allupville v. Schoolcraft, 5 Lans. 206. Eeversed, 65 N. Y. 134. Reformed Prot. Dutch Church v. Bradford, 8 Cow. 457. Followed, 4 Lans. 346. Reformed Protestant Dutch Church V. Bro'wn, 29 Barb. 335. Apfiemed, 24 How. Pr. 76. Reformed Prot. Dutch Church v. Brown, 54 Barb. 191. Followed, 59 Mo. 363. Reformed Prot. Dutch Church v. Brown, 17 How. Pr. 287, 288. Appibmed, 4 Abb. App. Dec. 31. Reilly's Case, 2 Abb. Pr., n. s., 334. •Contra, 24 How. Pr. 247 ; 25 Id. 149. 387 19 Hun 202. Ar- Reiser, Matter of, firmed, 81 N. Y. 629. Reitz V. Reitz, 14 Hun 536. Eeversed, Remington Paper Co. v. O'Dough- erty, 16 Hun 594. Modified, 81 N. Y. 474. 25 N. Y. 552. Remsen v. Beekman, Distinguished, 4 Lans. 197. Remsen v. Brinkerhoff, 26 Wend. 325. Eeviewed, 4 Eedf. 260, 262. Renaud v. Conselyea, 4 Abb. Pr. 280. Affirmed, 5 Abb. Pr. 346. Eeversed, 7 Id. 105. ' Renouil v. Harris, 2 Code 71. Approved, 3 Code 7. ' Rensselaer, 103. Contra as to first point, 5 N. Y. 383. Sims V. Sims, 12 Hun 231. Reversed, 18- Alb. L. J. 500. Simsonv. Brown, 6Hun 251. Reversed, 68 N. Y. 355. See 14 Hun 500. Simson v. Brown, 68 N. Y. 355. Fol- lowed, 84 N. Y. 514. Simson v. Schenok, 29 N. Y. 598. Re- viewed, 47 N. Y. 551. Sipperlyv. -Warner, 9 How.Pr. 332, 333. Applied, 15 How. Pr. 156, 158. Sisters of Charity of St. Vincent d© Paul V. Blelly, 7 Hun 290. See 68 N. Y. 628, Sixth Ave. R. R. Co. v. Gilbert Ele- vated R. R. Co., 41 Superior 489. Reversed,. 43 Superior 292. Overruled, 70 N. Y. 361. Sixth Ave. R. R. Co. v. Gilbert Ele- vated R. R. Co., 43 Superior 292. Distin- guished, 46 Superior 160. Sixty-fifth Street, Matter of, 23 How» Pr. 256. Contra, 4 Lans. 467. Sizer v. Miller, 1 Hill 227. Overruled, 23 How. Pr. 215, 220. Skinner v. Stuart, 15 Abb. Pr. 391. Ap- proved, 51 N. Y. 523. Skinner v. Stuart, 39 Barb. 206. Distin- guished, 3 Hun 2. Slack V. Heath, 1 Abb. Pr. 331. Ap- proved, 6 Abb. Pr. 243, 247. Slee V. Bloom, 20 Johns. 669. Concurred IN, 9 How. Pr. 436, 438. Explained, 5 Hill 131. Followed, 8 Abb. Pr., n. s., 52, 54 ; 57 Barb. 508 ; 80 N. Y. 379, 386. Slee V. Bloom, 19 Johns. 456. Followed, 80 N. Y. 379, 386. Slee V. President, &c., of Manhattan Co., 1 Paige 48. Approved, 16 N. Y. 231. Sleight V. City of Kingston, 11 Hun 594. Appeal dismissed, 73 N. Y. 592. Sloan V. New York Central R. B. Co., 45 N. Y. 125. Approved, 80 N. Y. 281, 299. Smart v. Bement, 3 Keyes 241. See 4 Abb. App. Deo. 253. Smith, Matter of, 52 N. Y. 526. Distin- guished, 62 N. Y. 227. S96 CASES CRITICISED. Smith V. Acker, 23 Wend. 653. Ap- proved, 4 Hill 271. Commented on, 4 N. Y. 581. DOTTBTED, 1 HUl 438, 467, 473. , Smith V. Araerican Life Ins. , &c., Co., €larke 307. Followed, 1 Tenn. Ch. 177. Smith V. Belden, 2 Hun 681. Appeal DISMISSED, 60 N. Y. 642. Smith V. Birdsall, 9 Johns. 328. Not FOLLOWED, 46 How. Pr. 481, 490, 491. Smith V. Bowen, 35 N. Y. 83. Applied, -56 How. Pr. 520, 530. Smith V. Brady, 17 N. Y. 173. Distin- «uiSHED, 7 Hun 614 ; 81 N. Y. 341, 344. Fol- lowed, 43 How. Pr. 393 ; 51 Id. 386 ; 42 Su- perior 256 ; 2 Thomp. & C. 365. Smith V. Burke, 10 Johns. 110. Distin- ■GUISHED, 12 Johns. 206. Smith V. Clark, 21 Wend. 83. Approved, 2 Barb. 520. Smith V. Ooe, 7 Eobt. 477. Afpibmed, € Alb. L. J. 197. Smith V. Corbiere, 3 Bosw. 634. Dis- tinguished, 22 Hun 385. Smith V. Grouse, 24 Barb. 433. Distin- ■QUisHED, 58 N. Y. 588. Smith V. Dodd, 3 E. D. Smith 348. Eb- VIEWED, 54 Iowa 548. Smith V. Empire Ins. Co., 25 Barb. 497. 3ee 10 Hun 430. Smith V. Floyd, 18 Barb. 522. Distin- 'ODISEED, 1 Lans. 82. Smith V. Griffith, 3 Hill 333, 338. Dis- -riNGUisHED, 81 N. Y. 623, 624. Smith V. Hall, 67 N. Y. 48, 51. Fol- lowed, 22 Hun 52. Smith V. Hart, 11 How. Pr. 203. Supeb- SEDED, 34 How. Pr. 333, 334. Smith V. Holmes, 19 N. Y. 271. Distin- guished, 51 Wis. 612. Smith V. Howard, 20 How. Pr. 121. Distinguished, 52 N. Y. 172. Smith V. Lansing, 22 N. Y. 520. Ex- plained, 84 N. Y. 199. Smith V. Lewis, 1 Daly 452. Contra, 6 Duer689; 4 How. Pr. 335; 5 Id, 30; 15 Id. 57 ; 3 Sandf. 724. Smith V. Lippincott, 49 Barb. 398. Af- firmed, 6 Alb. L. J. 199. Smith V. Lusher, 5 Cow. 688. Distin- guished, 54 N. Y. 538. Smith V. Lyke, 13 Hun 204. Distin- guished, 60 How. Pr. 175. Smith V. MacDonald, 1 Abb. N. Cas. 350. Contra, 3 Abb. N. Cas. 126 n. Smith V. Matson, 47 How. Pr. 118. See 47 How. Pr. 233. Smith V. Mayor, &o., of New York, 6 Daly 401. See 68 N. Y. 552. Smith V. Mayor, &o., of New York, 37 N. Y. 518. Distinguished, 80 N. Y. 190. Followed, 3 Thomp. & C. 131, 132. Smith V. Mayor, &o., of New York, 68 N. Y. 552. Followed, 55 How. Pr. 138, 144 ; 82 N. Y. 459, 462. Smith V. Miller, 25 N. Y. 619; 6 Kobt. 413. Reversed, 43 N. Y. 171. Smith V. Miller, 43 N. Y. 171. Distin- guished, 57 N. Y. 642. Smith V. Mumford, 9 Cow. 26. Ex- plained, 3 N. Y. 193. Smith V. New York and Oswego Midland R. R. Co., 63 N. Y. 58. Fol» lowed, 81 N. Y. 190, 198. Smith V. New York Central R. R. Co., 43 Barb. 225. Explained, 2 Lans. 199. Smith V. New York Central R. R. Co., 4 Keyes 180. Followed, 3 Daly 506. See 24 N. Y. 222. Smith V. New York Central R. R. Co., 24 N. Y. 222. Inapplicable, 2 Hun 51. Smith V. Niver, 2 Barb. 180. Distin- guished, 64 Barb. 431. Smith V. Oliphant, 7 Leg. Obs. 17. Bn- VERSED, 2 Sandf. 306. Smith V. Olssen, 4 Sandf. 711. Ex- amined AND QUALIFIED, 1 Abb. Pr. 443, 447. Snaith v. Orser, 43 Barb. 187. Eecon- oiLED, 8 Abb. Pr., n. s., 369, 380. Smith V. Rogers, 17 Johns. 340. Ex- plained, 1 Hun 451, 452, 453. Smith V. Rosenthall, 11 How. Pr. 442. Contra, 13 How. Pr. 309, 312. Smith V. Rowley, 66 Barb. 502, 503. In point, 96 Ind. 308. Smith V. Saratoga County Mut. Fire Ins. Co., 1 Hill 407. 'Distinguished, 58 Barb. 325. Smith V. Saratoga County Mut. Fire Ins. Co., 3 Hill 508. Distinguished, 46 N. Y. 52*9. Smith V. Scholtz, 68 N. Y. 41. Distin- guished, 23 Hun 299, 303. Smith V. Slade, 57 Barb. 637, 641. Ap- proved, 35 Superior 491. Distinguished, 1 Hun 350, 352. Smith V. Smith, 33 Barb. 371 n. ; 1 Sweeny 552. Affirmed, 6 Alb. L, J. 176. Smith V. Smith, 15 How. Pr. 165. See 15 How. Pr. 169, 170. Smith V. Smith, 40 How. Pr. 318. Ar- fibmed, 6 Alb. L. J. 176. Smith V. Smith, 2 Johns. 235, 242. Fol- lowed, 12 Johns. 143. Smith V. Smith, 4 Paige 92. Disinr- GUISHED, 23 Hun 19, 22. Smith V. Smith, 1 Thomp. & C. 63. Re- versed, 11 Alb. L. J. 147. Smith V. Smith, Superior 307. Smith V. Smith, 25 Wend, EECTED, 2 Hill 351. CASES CEITICISED. 4 Wend. 468. See 39 405. CoR- APPEAL DIS- Smith V. Starr, 4 Hun 123, MISSED, 70 N. Y. 155. Smith V. Stewart, 6 Johns. 46. Ap- proved, 60 Barb. 477. Smith V. Underdimck, 1 Sandf. Ch. 579. Distinguished, 69 N. Y. 583. Smith V. Van Ostrand, 64 N. Y. 278. Followed, 4 Bedf. 51, 52, 53. Smith V. VeUe, 60 N. Y. 106. Distin- guished, 23 Hun 99, 102, 393, 394. Smith V. 'White, 7 Hill 520. Followed, 14 How. Pr. 95, 96. Smith V. "Woodruff, 1 Hilt. 462. Contra, 9 N. Y. 142. Smith V. Wright, 5 Sandf. 113. Over- ruled, 4 Abb. App. Dec. 274. Smith, d. Teller, v. Burtis, Anth. N. P. 152. Reversed, 6 Johns. 197. Smyth V. Knickerbocker Life Ins. Co., 21 Hun 241. Affirmed, 84 N. Y. 589. Smyth V. Miinroe, 19 Hun 550. Af- firmed, 84 N. Y. 354. Snook, Petition of, 2 Hilt. 566. Ap- proved, 83 N. Y. 269. Snow V. Columbian Ins. Co., 48 Barb. 469 ; 48 N. Y. 624. See 35 Superior 247. Snow V. Roy, 22 Wend. 602. Followed, 3 How. Pr. 90. Snyder v. OoUins, 12 Hun 383. Distin- guished, 1 Civ. Pro. 310. Snyder v. Plass, 28 N. Y. 465. Fol- lowed, 38 N. Y. 355, 357. Solinger v. Earle, 45 Superior 80. Af- firmed, 82 N. Y. 393. Solinger v. Earle, 45 Superior 604. Af- firmed, 60 How. Pr. 116. Southard v. Rexford, 6 Cow. 254. Fol- lowed, 42 N. Y. 475, 482. Southern Central R. R. Co. v. Town of Moravia, 61 Barb. 180, 189. Approved, 23 Hun 79, 80, 81. Followed, 38 Superior 478. Southwick V. First Nat. Bank of Memphis, 20 Hun 349. Eeversbd, 84 N. Y. 420. Southwick V. First Nat. Bank of Memphis, 9 Week. Dig. 620. Eeversed, 12 Week. Dig. 478. Southworth v. Curtis, 6 How. Pr. 271. Contra, 5 Duer 601. Spalding v. Spalding, 3 How. Pr. 297. Contra, 3 How. Pr. 379. Spaulding v. Strang, 32 Barb. 235. Distinguished, 50 Barb. 414. Spaulding v. Strang, 37 N. Y. 135 ; 38 Id. 9. Explained, 53 N. Y. 74. 397 Spear v. WardeU, 1 N. Y. 144. Distin- guished, 13 Barb. 603. Spears v. Mayor, &o., of New York, 10 Hun 160. Appeal dismissed, 72 N. Y. 442. Spellman v. Weider, 5 How. Pr. 5.. Disapproved, 9 Abb. N. Cas. 302. Spencer v. Bamett, 35 N. Y. 94, Dis- tinguished, 10 Hun 506, 508. Explained, 14 Abb. Pr., n. s., 284, 302, 313. Followed, » Hun 424, 428. Spencer v. Cuyler, 17 How. Pr. 157» Followed, 18 How. Pr. 33, 35, 36. Spencer v. Halstead, 1 Den. 606. Af- firmed, 3 Den. 610. Spencer v. Utica, &c., R. R. Co., 5- Barb. 337. Followed, 34 How. Pr. 239. SperUng v. Levy, 10 Abb. Pr. 426. tra, 15 How. Pr. 410; 17 Id. 157; 18 Id Sperling v. Levy, 1 Daly 95. LOWED, 45 Superior 92. Sperry v. Reynolds, 5 Lans. 407. LOWED, 3 Thomp. & C. 32. CON- 33. FOL- FOL- 315, Speyers v. Lambert, 37 How. Pr. Contra, 10 Hun 343, 347.. Splnnetti v. Atlas Steamship Co., 14 Hun 100. Eeversed, 80 N. Y. 71. Spooner v. Brooklyn City R. R. Co., 31 Barb. 419. See 54 N. Y. 230. Spooner v. Brooklyn City R. R. Oo.^ 36 Barb. 217. Eeversed, 54 N. Y. 230. Sprague v. Birdsall, 2 Cow. 419. Ex- • plained, 7 Cow. 33. Sprague v. Blake, 20 Wend. 61. Ap- proved, 2 Hilt. 184. Sprague v. Butterworth, 22 Hun 502". Appeal dismissed, 84 N. Y. 649. Spraights v. Hawley, 39 N. Y. 441. Distinguished, 6 Hun 331, 337. Spraker v. Cook, 16 N. Y. 567. Fol- lowed, 60 How. Pr. 446; 84 N. Y. 293. Springer v. Dwyer, 50 N. Y. 19. Dis- tinguished, 56 N. Y. 674. Springport, Town of, v. Teutonia Savings Bank, 75 N. Y. 397. Distin- guished, 22 Hun 206 ; 84 N. Y. 540. Fur- ther APPEAL, Id. 404, 406. Springetein v. Schermerhorn, 12 Johns. 357. Distinguished, 68 N. Y. 363. Sprong V. Snyder, 6 How. Pr. 11. Con- tra, 5 How. Pr. 153. Squier v. Norris, 1 Lans. 282. Distin- guished, 19 Hun 567. Staats V. Bristow, 73 N. Y. 264. Dis- tinguished, 61 How. Pr. 270, 271. Staats V. Hudson River R. R. Co., 23 How. Pr. 463. Followed, 26 How. Pr. 528,. 531. Stackpole v. Robbins, 47 Barb. 212.- Affirmed, 6 Alb. L. J. 199. 398 CASES CRITICISED. Stafford v. Richardson, 15 Wend. 302. Commented on, 5 Hill 395. Stalker V. M'Donald, 6 Hill 93. Com- mented ON, 22 Alb. L. J. 191. Keviewed, 12 Otto (U. S.) 25, 44. Stannard v. Mattice, 7 How. Pr. 4. See 11 How. Pr. 149, 152. Stanton v. Allen, 5 Den. 434. Distin- OTJisHED, 66 N. Y. 293. Stanton v. Ellis, 12 N. Y. 575. Distin- •GuiSHBD, 2 Abb. N. Cas. 372, 377. Stanton v. King, 8 Hun 4. Followed, 12 Hun 431, 433. Stape V. People, 21 Hun 399. Eeveesed, 24 Hnn vn. Stape V. People, 10 Week. Dig. 423. Ee- yeksed, 12 Week. Dig. 271. Starbuck v. Murray, 5 Wend. 148. Ap- proved, 48 Ga. 50 ; 51 Mo. 75. See 2 Dill. (U. S.) 424. Starin v. Town of G-enoa, 23 N. Y. 439. Disapproved, 48 Mo. 167, 179. Ex- plained, 24 N. Y. 114, 127. Followed, 59 Barb. 446; 34 How. Pr. 294, 295; 36 N. Y. ■224, 229 ; 1 Thomp. & C. 134. Starts V. Bates, 12 How. Pr. 465. Con- tra, 4 Abb. Pr., N. s., 403 ; 17 Abb. Pr. 99. Starr v. Trustees of Village of Ro- chester, 6 Wend. 564. Distinqdishbd, 82 N. Y. 95, 102. -See 2 How. Pr. 256. State V. "Weare, 38 N. Y. 319. Fol- lowed, 38 Iowa 375. State Bank of Troy v. Bank of the Capitol, 27 How. Pr. 57. S. C, 41 Barb. 343. Steam Navig. Co. v. "Weed, 8 How. Pr. 49. Followed, 10 How. Pr. 415, 421. Steamboat Josephine, In re, 39 N. Y. 19. Distinguished, 43 N. Y. 52, 55. Fol- lowed, 44 Id. 417, 419. Limited, 43 Id. 555, 556 ; 33 Superior 337. Steamship Circassian, Matter of, 50 Barb. 490. See 39 N. Y. 19. Stebbins v. Phcenix Fire Ins. Co., 3 Paige 350, 356. Eeviewed, 46 N. Y. 332. Stebbins v. Sherman, 1 Sandf. 510. In point, 7 Bradw. (111.) 539, 540. Steele v. Benham, 21 Hun 411. Ee- VERSED, 84 N. Y. 634. Steele v. 'Whipple, 21 Wend. 103. Ex- plained, 4 Hill 225. Questioned, 21 N. Y. 633. Steinbaoh v. La Fayette Ins. Co., 54 IT. Y. 90. Contra, 13 Wall. (U. S.) 183. Steinweg v. Brie R'y Co., 43 N. Y. 123. Approved, 37 Ind. 448, 455. In point, 58 Miss. 915. Stenton v. Jerome, 54 N. Y. 480. Adopted, 44 Superior 424. Stepenhorst v. "Wolff, 35 Superior 25. Aefirmbd, 65 N. Y. 596. Stephens v. Board of Education of Brooklyn, 79 N. Y. 183. Explained, 61 How. Pr. 175. Followed, 84 N. Y. 434. Stephens v. Buffalo, c&c, R. R. Co., 20 Barb. 332. Approved, 13 Vr. (N. J.) 282. Stephens v. Casbacker, 8 Hun 161. Followed, 56 How. Pr. 326, 328, 329 n. Stephens v. Fox, 17 Hun 435. Affirmed, 83 N. Y. 313. Stephens v. Santee, 51 Barb. 532, 545. Approved, 5 Lans. 246. Stephens v. Waite, 10 Week. Dig. 421. Affirmed, 12 Week. Dig. 9. Stephenson v. Ne-w York, Sso., R. R. Co., 2 Duer 341. Criticised, 28 Mich. 300. Stemberger v. McGtovem, 4 Daly 456. Eeversed, 15 Abb. Pr., n. s., 257 ; 56 N. Y. 12. Stemberger v. McGovern, 15 Abb. Pr., N. s., 257. Followed, 37 Superior 396 ; 38 Id. 208. Sterne v. Gtoep, 20 Hun 395. Affirmed, 84 N. Y. 641. Sterne v. Herman, 11 Abb. Pr., n. s., 376. Contra, 11 Abb. Pr., n. s., 455. Steuben County Bank v. Alberger, 55 How. Pr. 481. Eeversed, 56 How. Pr. 345. Steuben County Bank v. Alberger, 56 How. Pr. 345. Distinguished, 60 How. Pr. 191. Stevens v. Phoenix Ins. Co. of Hart- ford, 24 How. Pr. 517. Not applicable, 3 Abb. Pr., N. s., 467. Questioned, 48 Barb. 132. See 25 Wis. 146. Stevens v. Veriane, 2 Lans. 90. Distin- guished, 23 Hun 424, 428. Overruled, 63 N. Y. 264. Stevens v. Wilson, 3 Den. 472 ; 6 Hill 512. Criticised, 43 Wis. 289. Stevenson v. Lesley, 49 How. Pr. 229. See 9 Hun 637 ; 70 N. Y. 512. Steves V. Os-wego, &c., R. R. Co., 18 N. Y. 422. Approved, 23 How. Pr. 492, 495, 502. Ste-ward v. Hotchkiss, 2 Cow. 634. Fol- lowed, 38 Superior 137. Stewart v. Fonda, 9 Week. Dig. 90. Af- firmed, Oct. 11th, 1881. Stewart v. Howard, 15 Barb. 26. Over- ruled, 47 How. Pr. 415, 416, 417. Stewart v. Lispenard, 26 Wend. 255 Approved in part, 3 Den. 37. Criticised, 56 Mo. 376. Overruled, 25 N. Y. 9, 100. Stewart v. Metropolitan Board of Health, 33 How. Pr. 3. Contra, 18 How Pr. 468. Stewart v. Petree, 55 N. Y. 621. Dis- tinguished, 67 N. Y. 170. Stewart v. Powers, 38 Superior 56. Ee- versed, 38 Superior 366. CASES CRITICISED. 399 Ste-wart v. Saratoga, &c., B. B. Co., 12 How. Pr. 435. Contra, 1 Duer 622 ; 8 How. Pr. 488 ; 11 Id. 512. Stewart V. Slater, 6 Duer 83, 102. Fol- xowED, 34 Superior 476. Stewart v. Smith, 39 Barb. 167. See 1 Xeyes 59. Stewart v. Wells, 6 Barb. 79. Disap- proved, 50 N. H. 490. Distinguished, 83 N. y. 526. Stiebeling v. Lockhaus, 21 Hun 457. Not roLLOWED, 60 How. Pr. 278. Stief V. Hart, 1 N. Y. 20. Contra, 4 Abb. App. Dec. 425 n. Stiles V. Stewart, 12 Wend. 473. Com- MENTBD ON, 7 Hill 37 n. ExPIiAlNED, 3 N. Y. 193. Stilwell V. Coope, 4 Den. 225. Distin- Y. 584, 699. Trustees of Salina v. Gilbert, 18 Wend. 175. Distinguished, 20 N. Y. 95. Trustees of Union College v. "Wheeler, 61 N. Y. 88. Explained and' LIMITED, 22 Hun 346. Followed, 45 Supe- rior 404. Trustees of Village of Penn Yan v. Forbes, 8 How. Pr. 285. Followed, 12: How. Pr. 435. Contra, 1 Duer 622; 8 How. Pr. 488; 11 Id. 572, 575. Tucker v. Tucker, 4 Keyes 136. Criti- cised AND distinguished, 61 How. Pr. 141 ; 4 Eedf. 499. Tucker v. "White, 27 How. Pr. 97. Over- ruled, 46 N. Y. 603. Tuffts V. Braisted, 1 Abb. Pr. 83. Ap- proved, 4 Abb. Pr. 441, 443. Tugwell V. Bussing, 48 How. Pr. 89, 90. Distinguished, 22 Hun 411. Tuomey v. Dunn, 42 Superior 291. Ee- VERSED, 20 Alb. L. J. 118. Turner v. Bank of Fox Lake, 3 Keyes 425. Examined and approved, 6 Abb. Pr., N. s., 234, 239. Followed, 40 How. Pr. 327 ; 42 N. Y. 542. Turner v. Church, 1 Abb. Pr. 299. Dis- tinguished, 68 N. Y. 374. Turner v. Jaycox, 40 Barb. 164. Dis- tinguished, 68 N. Y. 299. Turner v. Jaycox, 40 N. Y. 470. Dis- tinguished, 61 How. Pr. 76. Turner v. McCarthy, 4 E. D. Smith 247. Followed, 37 Superior 72. - Turner v. Taylor, 2 Daly 278. See 40' » How. Pr. 143. Turner V. Van Riper, 43 How. Pr. 33, Followed, 66 Barb. 256. Turnure v. Hohenthal, 36 Superior 79. Followed, 41 Superior 235. Tuthill V. Tracy, 31 N. Y. 157. Disap- proved, 4 Lans. 489, 491. FoLLO'NyED, 12 Hun 333, 336. Tuttte V. Albany, «teo., Iron and Steel Co., 61 How. Pr. 439 n. Followed, 61 How, Pr. 441. Tuttle V. Smith, 14 How. Pr. 395. Ap- ^PBOVED, 15 How. Pr. 565, 566. See 14 Id. 474. Twombly v. Cassidy, 21 Hun 277. Af- firmed, 82 N. Y. 155. Tylee v. Yates, 3 N. Y. 222. Over- ruled in part, 67 N. Y. 162. Tyler v. Burrows, 6 Eobt. 110. Fol- lowed, 43 Superior 451. CASES CRITICISED. 405 Tyler v. O-ardiner, 35 N. Y. 559. Fol- lowed, 60 Barb. 69 ; 4 Redf. 125, 127, 132, 136. Kevibwbd, Id. 476. Tyler v. Heidorn, 46 Barb. 439. Af- firmed, 6 Alb. L. J. 199. DiSTiNGcnsHED, 59 N. Y. 50. u. UbsdeU V. Root, 3 Abb. Pr. 142. Fol- I.OWED, 38 Superior 490. Ulster Coirnty Savings Inst. v. Decker, 11 Hun 515. See 74 N. Y. 604. Underwood v. Green, 36 Superior 481. APPBOVED and APPEAl DISMISSED, 56 N. Y. 247. Underwood v. Sutoliffe, 10 Hun 453. Eeversed, 19 Alb. L. J. 322. Union, &c., Mining Oo. of Tennessee V. Raht, 9 Hun 208. Dismissed, 68 N. Y. «29. Union Bank v. Clossey, 10 Johns. 271, 273. Kbvebsed, but not on points disciissed be- iom, 11 Johns. 183. Union Bank v. Coster, 3 N. Y. 203. DiSAppBOVBD, 29 Barb. 486. Distinguished, 20 N. Y. 337, 339. See 8 N. Y. 207. Union Bank v. Mayor, &c., of New York, 51 Barb. 159. Kevebsed. 51 N. Y. «38. Union Bank v. Mott, 18 How. Pr. 506. Followed, 35 How. Pr. 322, 324, 328. Union Bank v. Mott, 19 How. Pr. 114. Ebvbesbd, 19 How. Pr. 267. Union Bank of Troy v. Sixth Nat. Bank of New York, 43 N. Y. 456. Ap- plied, 6 Fed. Eep. 854. Union Dime Savings Inst. v. An- dariese, 19 Hun 310. Affibmed, 83 N. Y. 174. Union Trust Co. v. "Whiton, 17 Hun 593. Appeal dismissed, 78 N. Y. 491. Fol- lowed, 1 Civ. Pro. 317. Union Trust Oo. v. Whiton, 78 N. Y. 491. Distinguished, 60 How. Pr. 437. Fol- lowed, 1 Civ. Pro. 317, 319. Union Turnpike Boad v. Jenkins, 1 Cai. 381. DisAppBOVED, 61 How. Pr. 460. United States Rolling Stock Co., Matter of, 55 How. Pr. 286. See 57 How. Pr. 9. Utica City Bank v. Buel, 17 How. Pr. 498. Followed, 18 How. Pr. 33, 34. Utica Cotton Manuf. Oo. v. Super- visors of Oneida County, 1 Barb. Ch. 432, 447. Overruled, 11 Hun 527. Utica Ins. Co. v. Bloodgood, 4 Wend. 652. Doubted, 15 N. Y. 97. Utica Ins. Oo. v. Cadwell, 3 Wend. 296. Approved, 3 Edw. 199. Doubted, 15 N. Y. 97. Utica Ins. Co. v. Doubted, 15 N. Y. 97. Utica Ins. Oo. v. Doubted, 15 N. Y. 97. Kip, 3 Wend. 369. Scott, 19 Johns. 1. V. Vail V. Hamilton, 20 Hun 355. Af- firmed, 24 Hun vin. Vail V. Owen, 19,garb. 22. Explained, 4 Lans. 162. Vail V. Vail, 4 Paige 317. Distinguished, 5 Eedf. 296. Explained, Id 502. Valarino v. Thompson, 7 N. Y. 576. Followed, 11 How. Pr. 1, 7. Valentine v. Valentine, 2 Barb. Ch. 430. Reviewed, 4 Eedf. 40, 43, 44, 45. Valton V. Nat. Loan Fund Life As- surance Co., 17 Abb. Pr. 268. Eeversed, 1 Keyes 21. Valton V. Nat. Loan Fund Life As- surance Co., 20 N. Y. 32. Distinguished, 1 Thomp. & C. 509. Valton V. Nat. Loan Fund Life As- surance Soc, 19 How. Pr. 515. See 22 How. Pr. 195. Van Akin v. Oaler, 48 Barb. 58. Af- firmed by default, 6 Alb. L. J. 199. Van Alen v. American Nat. Bank, 10 Abb. Pr., N. 8. 331. Contra, 40 How. Pr. 190. Van Alen v. American Nat. Bank, 52 N. Y. 1. Followed, 84 N. Y. 131. Van Alien v. Farmers' Joint Stock Ins. Co., 6 Thomp. & C. 591. Eevebsed, 64 N. Y. 469. Van Allen v. Mooers, 5 Barb. 110. Af- firmed, 5 Barb. 114. Van Alstyne V. Commercial Bank of Albany, 7 Trans. App. 241. Followed, 4 Thomp. & C. 80. 406 CASES CRITICISED. Van Amburgh v. Baker, 14 Hun 615. Affibmbd, 81 N. Y. 46. Van Antwerp, Matter of, 56 N. Y. 261. DiSTINGTJISHED, 84 N. Y. 113. Van Bergen v. Bradley, 36 N. Y. 316. Disapproved, 47 N. Y. 248. Distingtjished, 36 N. Y. 371. Followed, 40 Id. 341, 342. Van Blaroom v. Broad-way Bank, 9 ^ Bosw. 532. Affirmed, 5 Trans. App. 132. Van Bokkeleil v. Taylor, 4 Thomp. & C. 422. Eeversed, 62 N. Y. 105. Van Brunt v. Day, 17 Hun 166. Ee- versed, 81 N. Y. 251. Vanbusklrk v. Warren, 4 Abb. App. Dec. 457 ; 34 Barb. 457 ; 2 Keyes 119. Ke- VEBSED, 7 Wall. (U. S.) 139. Van Oleef v. Fleet, 15 Johns. 147. Con- sidered ovEBRTTLED, 11 Hun 565, 570. See 43 Barb. 376. Van Oleef v. Sickels, 2 Edw. 392. Re- versed, 5 Paige 505. Van Cleve v. Abbott, 3 Abb. Pr., n. s., 144. Disapproved, 5 Daly 242. Van Oortlandt v. trnderhill, 17 Johns. 405. Followed, 82 N. Y. 27, 31. Vandenburgb v. Biggs, 3 How. Pr. 316. Contra, 47 How. Pr. 231. Vanderkemp v. Sbelton, 11 Paige 28. Followed, 2 Lans. 470 ; 83 N. Y. 220 ; 45 Superior 404. Vanderpoel v. Van Allen, 10 Barb. 157. Distinguished, 66 N. Yj 498. Vanderzee v. Vanderzee 30 Barb. 331. Distinguished, 59 N. Y. 50. Van Deusen v. Sweet, 51 N. Y. 378. Explained, 22 Hun 198, 199, 200. Vandeventer v. New York, &c., R. R. Co., 27 Barb. 244. Approved, 30 Barb. 107. • Vandevoort v. Palmer, 4 Duer 677. Explained, 1 Lans. 494. Followed, 3 Hun 410 ; 6 Thomp. & G. 56. Van Doren v. Baity, 11 Hun 239. Dis- tinguished, 83 N. Y. 206. Van Doren v. Horton, 19 Hun 7. Fol- lowed, 61 How. Pr. 433. Van Doren v. Mayor, &c., of New York, 9 Paige 388. Followed, 4 Mo. App. 469. Van Duyne v. Ooope, 1 Hill 557. Con- tra, 26 How. Pr. 411, 412. Van Duzer v. Howe, 21 N. Y. 531. Distinguished, 56 N. Y. 37. Van Dyke v. McQuade, 20 Hun 262. Affirmed, 24 Hun vni. Van Eps v. Dillaye, 6 Barb. 244. Re- viewed, 1 Flipp. (U. S.) 468. Van Bpps v. Van Epps, 9 Paige 237. Followed, 81 N. Y. 308, 322. Van Giesen v. Bridgford, 18 Hun 73. Affirmed, 83 K Y. 348. Van G-iesen v. Bridgford, 8 Week. Dig, 484. Affirmed, 12 Week. Dig. 61. Van Guysling v. Van Kuren, 35 N. Y. 70. Followed, 60 Barb. 69. Van Hook v. "Wbitlock, 26 Wend. 42. Distinguished, 13 So. Car. 375. Van Keeck v. Le Roy, 37 Barb. 544. Affirmed, 34 How. Pr. 625. Van Keuren v. Corkins, 66 N. Y. 77. Distinguished, 25 Kan. 631. Van Keuren v. Parraelee, 2 N. Y. 523. Disapproved, 9 Vr. (N. J.) 36. Distin- guished, 15 Barb. 168. Reviewed, 24 Hud 512. Van Kirk v. "Wilds, 11 Barb. 520. Com- mented ON, 4 N. Y. 254. See 36 How. Pr.326, 327. Van Kleeck v. Phipps, 4 Redf. 99. Re- viewed, 4 Redf. 477. Van Kleeck V. Reformed Prot. Dutch. Oburcli, 6 Paige 600; 20 Wend. 457, 458. Explained and distinguished, 45 N. Y. 258. Van Leuven v. First Nat. Bank of Kingston, 54 N. Y. 671. Distinguished, 60 N. Y. 293. Van Loon v. Lyon, 4 Daly 149. Re- versed, 10 Alb. L. J. 239. Van Namee v. Peoble, 9 How. Pr. 198. Followed, 14 How. Pr. 70, 71. Overruled, Id. 184, 186. See 9 Id. 378. Van Ness v. Bush, 14 Abb. Pr. 33. Overruled, 53 Barb. 530. See 1 Duer 309 ; 2 Id. 153. Van Ness v. Bush, 22 How. Pr. 481. See 1 Duer 309 ; 2 Id. 153. Van Neste v. Conover, 8 Barb. 509. Contra, 8 How. Pr. 111. Van Neste v. Conover, 5 How. Pr. 148. Followed, 11 How. Pr. 106, 108. Contra, 6 Id. 327. Van Order v. Van Order, 8 Hun 315. Distinguished, 24 Hun 404. Van Pelt v. McGraw, 4 N. Y. 110. Fol- lowed, 13 Vr. (N. J.) 34. Van Rensselaer v. Ohadwick, 24 Barb. 333. Affirmed, 22 N. Y. 32. Van Rensselaer v. Chadwick, 7 How. Pr. 297. See 15 How. Pr. 567. Van Rensselaer v. Dennison, 35 N. Y. 393. Approved, 41 N. Y. 220, 224. Van Rensselaer v. Emery, 9 How. Pr. 135. Concurred in, 9 How. 424, 425. Van Rensselaer v. Jewett, 2 N. Y. 135. Commented on, 37 Wis. 149, 152. Distin- guished, 10 Hun 525, 526. Van Rensselaer v. Kidd, 5 How. Pr. 242. Followed, 6 How. Pr. 172, 173. Van Rensselaer v. Livingston, 12 Wend. 490. Distinguished, 7 Barb. 445. Van Rensselaer v. Platner, 1 Johns. 276. Examined, 5 Den. 139. CASES CKITICISED. 407 „„Van Rensselaer v. Snyder, 13 N. Y. 299. Followed, 39 How. Pr. 162, 167. Van Rensselaer v. Viokery, 3 Lans. 57. Followed, 3 JHun 351 ; 5 Thomp. & C. 492. Van Rensselaer v. "Witbeok, 7 N. Y. 517. Commented on, 58 N. Y. 406. Fol- lowed, 22 Hun 257. Van Riper, Exp., 20 Wend. 614. Doubted, 34 How. Pr. 180, 183. Van Riper v. Baldwin, 19 Hun 344. Appiemed, 24 Hun vul Van Santen v. Standard Oil Oo., 17 Hun 140. Appikmed, 81 N. Y. 171. Van Santvoord v. St. John, 6 Hill 157. DiSTiNGTJiSHED, 2 Lans. 199. Van Schaick v. Hudson River R. R. Co., 43 N. Y. 527. Followed, 24 Hun 600. Van Schaick v. Sigel, 58 How. Pr. 211. Appibmbd, 60 How. Pr. 122. Van Schaiok v. Third Ave. R. R. Co., 8 Abb. Pr. 380. Affirmed, 25 How. Pr. 446. Van Schaick v. Third Ave. R. R. Co., 25 How. Pr. 446. See 49 Barb. 409. Van Sohoonhoven v. Ourley, 10 Week. Dig. 126. Appirmed, Oct. 4tli, 1881. Van Schuyver v. Mulford, 59 N. Y. 426, 431. Distinguished, 23 Hun 439, 442. Van Shoick v. Niagara Fire Ins. Co., 68 N. Y. 434. Distinguished, 23 Hun 393, 394. Followed, 81 N. Y. 273, 276. Van Sickler v. Graham, 7 How. Pr. 208. CoNTBA, 12 Abb. Pr. 78 n.; 14 How. Pr. 508, 511 ; 20 Id. 59. Van Slyck v. Kimball, 8 Johns. 198. Distinguished, 11 Johns. 478. Van Slyke v. Hyatt, 9 Abb. Pr., n. s., 58. Appeal dismissed, 46 N. Y. 259. Van Slyke v. Hyatt, 46 N. Y. 259. Followed, 38 Superior 441. Van Slyke v. Shelden, 9 Barb. 278. Distinguished, 62 Barb. 223. Van Tassell v. "Wood, 12 Hun 388. Eeversed, 19 Alb. L. J. 217. Van Valen v. Lapham, 13 How. Pr. 240. Distinguished, 82 N. Y. 271, 275. Van Vechten v. Hopkins, 5 Johns. 211. Disapproved, 52 Id. 240. Van Vleck v. Burroughs, 6 Barb. 31. Followed, 10 Hun 97, 101, 104. Van Vleet v. Slauson, 45 Barb. 317. Explained, 5 Abb. Pr., n. s., 333, 337. Van Voorhis v. Brintnall, 11 Week. Dig. 229. Reversed, Oct. 4th, 1881. Van "Wart v. Smith, 2 Wend. 220, 221. Contra, 7 How. Pr. 41. Van "Winkle v. Oonstantine, 6 Hill 177. Appirmed, 10 N. Y. 422. Van Wyck, Matter of, 1 Barb. Ch. 565. Reviewed, 4 Kedf. 203. Van Wyck v. Baker, 11 Hun 309. Dis- tinguished, 1 Civ. Pro. 310 ; 23 Hun 82, 84. Van VTyck v. Hardy, 11 Abb. Pr. 473. Ckiticised, 12 Abb. Pr., n. s., 173. Van Wyck v. Hardy, 20 How. Pr. 222. Appirmed, 39 How. Pr. 393. Followed, 35 Id. 356, 359. Van Wyck v. Hardy, 39 How. Pr. 392. Followed, 47 How. Pr. 233, 235. Van Wyck v. Seward, 1 Edw. 327. See 6 Paige 62 ; 18 Wend. 375. Van Wyck v. Walters, 16 Hun 209. Appirmed, 81 N. Y. 352. Van Zandt v. Mutual Benefit Life Ins. Co., 55 N. Y. 169. Distinguished, 10 Hun 558, 559. Varian v. Stevens, 2 Duer 635. Contra, 25 How. Pr. 266. Varick v. Talhnan, 2 Barb. 113. Ap- proved, 5 N. Y. 368. Vartie v. tJnderwodd, 18 Barb. 561. Criticised^ 101 Mass. 432. Contka, 10 Paige '49. . s Vary v. Godfrey, 6 Cow. 587. Re- viewed, 8 Abb. N. Cas. 242. Veeder v. Oooley, 2 Hun 74. Approved, 83 N. Y. 250. Veltman v. Thompson, 3 N. Y. 438. Distinguished, 57 N. Y. 119. Venice, Town of, v. Woodruff, 62 N. Y. 462, 470. Followed, 55 How. Pr. 138, 145. Verdin v. Slocum, 71 N. Y. 345. Dis^ TINGTIISHED, 78 N. Y. 248. Vennilyea v. Beatty, 2 How. Pr. 57. Followed, 3 How. Pr. 109. Vemam v. Smith, 15 N. Y. 328. Fol- lowed, 8 Nev. 126, 129. Vernon, Estate of, N. Y. Surr. Ct., March, 1881. Followed, 1 Civ. Pro. 304. Vernon v. Manhattan Co., 22 Wend. 183. Reviewed, 53 Md. 24. Vernon v. Vernon, 53 N. Y. 351. Dis- tinguished, 23 Hun 299, 306. Verplanok v. Van Buren, 11 Hun 328. Reversed, 19 Alb. L. J. 163. Viall V. Genesee Mutual Insurance Co., 19 Barb. 440. Contra, 3 Hill 508; 7 Id. 49. Victory Webb, &c., Manuf. Co. v. Beecher, 55 How. Pr. 193. Applied, 58 How. Pr. 68, 70 ; 59 Id. 91, 92. Approved, 8 Abb. N. Cas. 384. Viele v. Goss, 49 Barb. 96. Appirmed, 6 Alb. L. J. 199. Viele V. Judson, 15 Hun 328. Reversed, 82 N. Y. 32. Village. See name of village in question. Vincent v. Sands, 33 Superior 511. . Followed, 38 Superior 142. 408 CASES CRITICISED. Viner v. New York, &c., Steamship Co., 50 N. Y. 23. Followed, 2 Thomp. & C. 698. Vischer v. Yates, 11 Johns. 23. Ee- VEESED, 12 Johns. 1. Voessingr v. Voeesing, 12 Hun 678. Followed, 23 Hun 439. 441. Volkening, Matter of, 52 N. Y. 650. Followed, 82 N. Y. 204, 211. Volkening v. DeQraaf, 44 Superior 424. ArriBMED, 81 N. Y. 268. Voltz V. Blackmar, 4 Hun 139. Ee- VERSED, 64 N. Y. 446. Von Beck v. Village of Rondout, 15 Abb. Pr. 48. ArriRMED, 41 N. Y. 619. Von Latham v. Libby, 38 Barb. 339. DisTiNGmsHED, 52 N. Y. 413. Contra, 13 Abb. Pr. 276. Von Latham v. Row^an, 17 Abb. Pr. 237. Contra, 13 Abb. Pr. 276. Von Rhade v. Von Rhade, 2 Thomp. & C. 491. DisTiNGTJiSHED, 3 Hun 64; 5 Thomp. & C. 283. Voorhees v. Bm-chard, 55 N. Y. 98. Distinguished, 68 N. Y. 69. Followed, 81 N. Y. 557, 564. Voorhees v. MoGinnis, 48 N. Y. 278. Approved, 50 How. Pr. 53. Distinguished, 9 Hun 452,456; 2 Thomp. & 0. 285. Fol- lowed, 53 N. Y. 380. Voorhies v. Scofleld, 7 How. Pr. 51. Contra, 14 How. Pr. 360, 362. Voorhis V. Child, 17 N. Y, 354. Fol- lowed, 1 Thomp. & C. 646. Vorebeok v. Roe, 50 Barb. 302. Con- curred IN, 39 How. Pr. 377, 381. Vos V. United Ins. Co., 2 Johns. Cas. 180. Beversed, 1 Cai. Cas. vn. Vosburgh v. Teator, 32 N. Y. 561. Fol- lowed, 37 Superior 171. Vosburgh v. Thayer, 12 Johns. 461. Explained, 38 Superior 263. Vose V. Cockcroft, 44 N. Y. -415. Dis- tinguished, 46 N. Y. 636. Followed, 40 Superior 118. Sustained, 51 N. Y. 81. Voee V. Yulee, 4 Hun 628 ; 64 N. Y. 449. Eeversed, 19 Alb. L. J. 299 ; 9 Otto (U. S.) 539. Vrooman v. Turner, 69 N. Y. 280. Ap- proved, 82 N. Y. 385, 388. Followed, 22 Hun 114. See 44 Superior 93. w. Wade V. Baker, 14 Hun 615. Affirmed, 81 N. Y. 46. "Wade V. De Leyer, 40 Superior 541. Appeal dismissed, 63 N. Y. 318. "Wade V. Kalbfleisch, 58 N. Y. 282. Distinguished, '24 Hun 622. Followed, 23 Id. 71, 74. "Wadsworth v. Sherman, 14 Barb. 169. Affirmed, 8 N. Y. 388. "Wads-worth v. Wendell, 5 Johns. Ch. 224. Followed, 58 Miss. 486. Waffle V. Goble, 53 Barb. 517. Distin- guished, 4 Hun 317. Explained, 1 Hun 711. Followed, 47 How. Pr. 233, 235 ; 84 N. Y. 618 ; 4 Thomp. & C. 222. Waffle V. New York Central R. R. Co., 58 Barb. 413. Distinguished, 66 N. Y. 65. Wager v. Troy Union R. R. Co.,' 25 N. Y. 526. Distinguished, 60 How. Pr. 415. Wager v. Wager, 23 Hun 439. Fol- lowed, 23 Hun 431, 432. Wagner v. Long Island R. R. Co., 2 Hun 633. Appeal dismissed, 70 N. Y. 614. Wait V. Green, 46 How. Pr. 449. Not authority, 46 How. Pr. 530 n. Wait V. Ray, 5 Hun 649. Affirmed, 67 N. Y. 36. Wakeman v. Dalley, 51 N. Y. 27. Ap- proved, 36 Superior 544. Wakeman v. Grover, 4 Paige 23. Ap- proved, 61 How. Pr. 69. Followed, 84 N. Y. 528. Wakeman v. Grover, 11 Wend. 187. Approved, 61 How. Pr. 69. Wakeman v. Price, 3 N. Y. 334. Dis- tinguished, 82 N. Y. 95, 102. Waldele v. New York Central, &c., R. R. Co., 19 Hun 69. Followed, 23 Hun 279, 280. Walden v. Le Roy, 2 Cai. 262, 263. Distinguished, 11 Johns. 321. Waldorph v. Bortle, 4 How. Pr. 358. Contra, 7 How. Pr. 31. See 22 Id. 353. Waldron v. M'Carty, 3 Johns. 471. Distinguished, 65 N. Y. 504. Waldron v. Waldron, 4 Bradf. 114. Qualified, 3 Eedf. 505. Walker v. Erie R'y Co., 63 Barb. 260. Limited, 58 N. Y. 391, 396. Walker v. Hubbard, 4 How. Pr. 154. See 5 How. Pr. 241. Walker v. MiUard, 29 N. Y. 375. Dis- tinguished, 5 Eobt.' 160, 167. CASES CRITICISED. 409 "Walker v. Sherman, 20 Wend. 636. DiSTiNGinsHED, 66 N. Y. 498. "Walker v. "Walker, 20 Hun 400. Af- firmed, 82 N. Y. 260. "Wallace v. American Linen Thread Co., 46 How. Pr. 403. Followed, 24 Hun 450. "Wallace v. Oastle, 68 N. Y. 370. Fol- lowed, 80 N. Y. 642; 82 Id. 572, 574. "Wallace v. Drew, 59 Barb. 413. Ee- VBBSED, 54 N. Y. 678. "Wallace v. Morse, 5 Hill 391. Fol- lowed, 1 Daly 335. "Wallerstein v. Columbian Ins. Co., 44 N. Y. 204. Followed, 34 Superior 321. Ee VIEWED, 46 Id. 120. •Wallis V. Randall, 16 Hun 33. Af- firmed, 81 N. Y. 164. "Walls V. Bailey, 49 N. Y. 464, 472. Followed, 43 Superior 451. Walsh V. Hartford Fire Ins. Co., 73 N. Y. 5. Distinguished, 83 N. Y. 141. "Walsh V. Kelly, 42 Barb. 98. Followed, 47 How. Pr. 80, 82. "Walsh V. Sajo-e, 52 How. Pr. 334. Ap- PBOVED, 60 How. Pr. 144. "Walter, Matter of, 21 Hun 533. Af- FiKMBD, 83 N. Y. 538. "Walter v. Bennett, 16 N. Y. 250. Fol- lowed, 21 How. Pr. 289, 291. "Walton V. Bryenth, 24 How. Pr. 357. CONTBA, 25 How. Pr. 388. "Walton V. "Walton, 4 Abb. App. Dec. 512. Applied, 56 How. Pr. 285. "Walton V. "Walton, 32 Barb. 203. Ee- VERSED, 27 How. Pr. 600. "Walton V. "Walton, 1 Keyes 15, 18. Distinguished, 84 N. Y. 320. Wanzer v. De Baun, 1 E. D. Smith 261. Followed, 61 How. Pr. 367. Contba, 4 Abb. Pr. 443 ; 23 How. Pr. 507. "Ward V. Begg, 18 Barb. 139. Contba, 29 How. Pr. 55. "Ward V. Dewey, 7 How. Pr. 17. Con- tra, 14 How. Pr. 470, 472. ■Ward V. Kelsey, 42 Barb. 582. Af- firmed, 5 Trans. App. 315. ■Ward V. Kilpatrick, 9 Week. Dig. 342. Affikmed, 12 Week. Dig. 401. ■Ward V. Newell, 42 Barb. 482. Distin- guished, 62 N. Y. 520. "Ward V. People, 3 Hill 395. Com- mented on, 5 Hill 260. ■Ward V. Shaw, 7 Wend. 404. Distin- 6U18HED, 7 Bradw. (111.) 456. "Ward V. "Ward, 6 Abb. Pr., n. s., 79. Disapproved, 10 Abb. Pr., n. s., 74, 79 ; 41 How. Pr. 169. "Ward V. "Ward, 23 Hun 431. Fol- lowed, 23 Hun 439, 440. "Ward V. 'Warren, 15 Hun 600. Af- firmed, 82 N. Y. 265. "Ward V. 'Warren, 82 N. Y. 265. Dis- tinguished, 84 N. Y. 46. "Warhus v. Bowery Savings Bank, 21 N. Y. 543. Distinguished, 2 Hun 49. "Waring v. Lockwood, 10 Johns. 108 Followed, 12 Johns. 206. "Waring v. Sombom, 12 Hun 81. Ap- peal dismissed, 71 N. Y. 606. "Warner v. Blakeman, 36 Barb. 501. Affirmed, 4 Keyes 568. "Warner v. Erie Railway Co., 39 N. Y. 468. Criticised, 1 Thomp. & C. 528. "Warner v. Hudson River R. R. Co., 5 How. Pr. 454. Contra, 9 How. Pr. 217. "Warner v. Lee, 6 N. Y. 144. Followed, 9 Bosw. 334. "Warner v. Nelligar, 12 How. Pr. 402. Disapproved, 4 Abb. Pr. 307, 308. Over- ruled, 23 Barb. 228. "Warner v. New "york Central R. R. Co., 44 N. Y. 465. Criticised, 65 Barb. 92. Explained, 56 N. Y. 46. Followed, 84 N. Y. 62 ; 39 Superior 347. "Warner v. "Warren, 46 N. Y. 228. Fol- lowed, 38 Superior 95. ■Warren v. Hehner, 8 How. Pr. 419. Contra, 10 How. Pr. 60, 64. "Warren v. Leland, 2 Barb. 613. Distin- guished, 57 Barb. 243 ; 39 How. Pr. 381. ■Warren v. Lynch, 5 Johns. 239, 244. Followed, 12 Johns. 198. "Washburn v. Jones, 14 Barb. 193. Fol- lowed, 6 Lans. 112 ; 61 N. Y. 39. "Washington Life Ins. Co. v. Law- rence, 53 Barb. 307. Affirmed, 41 N. Y. 620. "Washington Park, Matter of, 15 Abb. Pr., N. 8., 148. See 56 N. Y. 144. "Washington Park, Matter of, v. Barnes, 2 Thomp. & C. 637. Approved and APPEAL dismissed, 56 N. Y. 144. ■Waterbury, Matter of, 8 Paige 380. Followed, 12 Hun 488, 489. "Waterbury v. Sinclair, 26 Barb. 455. Upheld, 19 N. Y. 230. "Waterbury v. Sinclair, 16 How. Pr. 329. Followed, 17 How. Pr. 385, 389. Overruled, 19 N. Y. 230. ■Waterbury v. "Westervelt, 9 N. Y. 604. Followed, 41 Superior 284. "Waterford, &c., Turnpike Co. v. Peo- ple, 9 Barb. 161. Contra, 7 How. Pr. 241, 246 ; 1 Park. Cr. 579. "Waterman v. "Whitney, 11 N. Y. 157. Commented on, 10 Abb. Pr., n. s., 307 n. Ex- plained, 3 Eedf. 412. Followed, 1 Thomp. & C. 569. "Waters v. Crawford, 2 Thomp. & C. 602. Approved, 42 Superior 390. 410 CASES CRITICISED. Waters v. Shepherd, 14 Hun 223. Su- perseded by the Code, 23 Hun 150, 151. Waterville Maniif. Co. v. Brown, 9 How. Pr. 27. Keveesed, 14 Barb. 182. ■Watkins v. Halstead, 2 Sandf. 311. Ap- proved, 28 Barb. 438. Watrous v. Kearney, 11 Huu 584. Ap- peal DISMISSED, 79 N. Y. 496. "Watson, Matter of, 2 E. D. Smith, 429. Followed, 59 How. Pr. 139. "Watson, Matter of, 3 Lans. 408. Qttali- PIED, 15 Abb. Pr., n. s., 230, 236. "Watson V. Davis, 19 Wend. 371. Ex- plained, 5 Hill 60 ; 6 Id. 38. "Watson V. Fitzsimmons, 5 Duer 629. Followed, 60 How. Pr. 183. "Watson V. Gage, 12 Abb. Pr. 215. Con- tra, 30 How. Pr. 61 ; 64 N. Y. 120. "Watson V. McLaren, 19 Wend. 557. Corrected, 2 Hill 189. "Watson V. Nelson, 69 N. Y. 536. Ex- plained, 7 Abb. N. Gas. 380, 383. Followed, 23 Hun 356, 360. "Waverly "Waterworks Co., Matter of, 16 Huo 57. Eeversed, 24 Hun vi. "Waverly "Waterworks Co., Matter of, 7 Week. Dig. 482. Eeversed, 12 Week. Dig. 407. "WaydeU v. Luer, 5 Hill 448. Disap- proved, 6 Barb. 201. "Wayland v. Tysen, 45 N. Y. 281. Ap- plied, 45 Superior 311. Distinguished, 8 Abb. N. Gas. 436, 442 ; 82 N. Y. 260, 264. Fol- lowed, 50 N. Y. 673 ; 38 Superior 137. See 64 Barb. 463. "Wayne, &c.. Collegiate Institute v. Q-reenwood, 40 Barb. 72. Beversed, 41 N. Y. 620. "Wayne County Savings Bank v. Low, 6 Abb. N. Gas. 76. Affirmed, 8 Abb. N. Gas. 390 ; 81 N. Y. 566. Disapproved, 58 How. Pr. 24, 34, 37 n. "Wayne County Savings Bank v. Low, 81 N. Y. 566. Eeviewed, 24 Hun 197, 198. "Weaver v. Barden, 49 N. Y. 286. Dis- tinguished, 67 N. Y. 87 ; 84 Id. 135. Fol- lowed, 39 Superior 302. "Weaver V. Devendorf, 3 Den. 117. Crit- icised, 6 Kan. 508. Followed, 26 Wis. 398. "Weaver v. Livingston, Hopk. 595. Ex- plained, 8 Paige 591. "Weaver v. Rome, <&c., R. R. Co., 3 Thomp. & C. 270. Distinguished, 6 Thomp. & G. 498. "Webb, Matter of, 24 How. Pr. 247. Fol- lowed, 25 How. Pr. 149, 152. "Webb, Matter of, 11 Hun 124. Distin- guished, 56 How. Pr. 322. "Webb V. Daggett, 2 Barb. 9, 13. Ap- proved, 23 Hun 82, 85. "Webb V. Mott, 6 How. Pr. 439. Contra, 15 How. Pr. 525. "Webber v. Shearman, 3 Hill 547. Ap- proved AND r^LLOWED, 22 Hun 94. "Webber v. Underhill, 19 Wend. 447. Criticised, 23 Hun 486, 488. "Weber v. New York Central, &c., R. R. Co., 58 N. Y. 451. Followed, 6 Hun, 303, 316, 317, 325 ; 83 N. Y. 574 ; 72 Mo. 455. "Webster v. Hopkins, 11 How. Pr. 140. Overruled, 5 Daly 17. "Webster v. Stockwell, 3 Abb. N. Gas. 115. Contra, 56 How. Pr. 214. "Webster v. Zielly, 52 Barb. 482. Ap- proved, 5 Lans. 247. "Weed V. Barney, 45 N. Y. 344. Fol- lowed, 6 Hun 310, 311. "Weed V. Case, 55 Barb. 534, 547. Ap- proved, 36 Superior 544. "Weed V. Saratoga, &o., R. R. Co., 1» Wend. 534. Distinguished, 53 N. Y. 370. "Weet V. Trustees of Brockport, 16 N. Y. 161 n. Distinguished, 1 Hun 570, 572. "Wehle V. Conner, 63 N. Y. 258. Fur- ther APPEAL, 83 N. Y. 235. "Wehle V. Conner, 69 N. Y. 546. Fur- ther APPEAL, 83 N. Y. 235. . "Wehle V. Haviland, 42 How. Pr. 399. See 43 How. Pr. 5. Wehle V. HavUand, 69 N. Y. 448, 451. See 44 Superior 401. "Wehrkarap v. "WiUet, 1 Daly 4. Illus- trated, 8 Abb. N. Gas. 279. "Weil V. Lange, 6 Daly 549. Criticised, 58 How. Pr. 37 n. "Weir V. Groat, 4 Hun 193. Followed, 23 Hun 87, 89. "Weisser v. Denison, 10 N. Y. 68. Fol- lowed, 84 N. Y. 213. "Weller v. Hersee, 10 Hun ,431. Af- firmed, 74 N. Y. 609. "Weller v. "Weller, 28 Barb. 588. Distin- guished, 54 N. Y. 285. "WeUes V. "Yates, 44 N. Y. 525. Distin- guished, 46 How. Pr. 498, 506 ; 55 N. Y. 243. Wells V. City of Buffalo, 14 Hun 438. Affirmed, 80 N. Y. 253. "Wells V. Kelsey, 37 N. Y. 143. Distin- guished, 81 N. Y. 623, 624. "Wells V. Smith, 7 Paige 22. See 19 How. Pr. 547, 550. "Welsh V. Darragh, 52 N. Y. 590. Fol- lowed, 49 How. Pr. 309 ; 82 N. Y. 631. "Welts V. Connecticut Mut. Life Ins. Co., 48 N. Y. 34. Distinguished, 66 N. Y. 445. "Wemple v. Stewart, 22 Barb. 154. Distinguished, 80 N. Y. 585, 590. "Wendell v. Mayor, &o., of Troy, 39 Barb. 329. Affirmed, 4 Keyes 261. , CASES CRITICISED. 411 "Wendell v. Mayor, &o., of Troy, 4 Keyes 261. Distinguished, 58 N. Y. 394. ■Wendell v. Van Rensselaer, 1 Johns. Ch. 344. Eeviewbd, 12 Otto (U. S.) 76. "Weseman v. "Wingrove, 9 Week. Dig. 434. ArPiRMED, 12 Week. Dig. 320. ■West V. Mayor, Sec, of New York, 10 Paige 539. Distinguished, 54 N. Y. 162. "West V. Trustees of the Village of Brookport, 16 N. Y. 161 n. Disapproved, 44 N. Y. 116, 121. ■West River Bank v. Taylor, 34 N. Y. 128. Followed, 48 Mo. 66, 69. Westbrook v. G-leason, 79 N. Y. 23, 32. Distinguished, 83 N. Y. 221. "Westcott V. Fargo, 61 N. Y. 542. Ee- viEWED, 6 Fed. Eep. 793. "Westcott V. G-unn, 4 Duer 107, 112. Followed, 43 Superior 335. "Westerfleld v. "Westerfleld, 1 Bradf. 198. Eeviewbd, 4 Eedf. 40, 43, 45. "Western R. R. Corp. v. Kortright, 10 How. Pr. 457. Followed, 6 Hun 200, 201. "Western Transp. Co. v. Scheu, 16 N. Y. 408. Followed, 82 N. Y. 351, 355, 356. "Westervelt v. G-regg, 1 Barb. Ch. 469. See 3 Eedf. 538. "Westervelt v. G-regg, 12 N. Y. 202, 212 Followed, 1 Oiv. Pro. 326. "Westervelt v. Smith, 2 Duer 449.' Ex- plained, 15 N. Y. 405. "Westfall V. Gere, 3 Dans. 151. Ee- TEESED, 6 Alb. L. J. 177. "Westfall V. Preston, 49 N. Y. 849. Commented on, 58 N. Y. 406. Distinguished, 7 Fed. Eep. 158. Followed, 22 Hun 257. "Wetmore v. Earle," 9 Abb. Pr., 58 n. Contba, 11 Abb. Pr. 355 ; 21 How. Pr. 114 ; 42 Id. 198. "Wetmore v. Parker, 52 N. Y. 450. Fol- lowed, 23 Hun 299, 305 ; 1 Thomp. & C. 586. ■Wetmore v. Scovell, 3 Edw. 515. Ap- proved, 3 Barb. Ch. 320. " ■Wetmore v. Story, 22 Barb. 414. See 7 Abb. Pr. 127 ; 19 How. Pr. 518, 519, 520. "Wetmore v. White, 2 Cai. Cas. 87. Dis- tinguished, 84 N. Y. 39. "Wetzel V. Schultz, 13 How. Pr. 191 Contra, 4 How. Pr. 361 ; 8 Id. 495. ■Wetzell V. Dinsmore, 4 Daly 193. Ee versed, 54 N. Y. 496. ■Weyman v. People, 4 Hun 511. Dis- tinguished, 10 Hun 159, 160. "Wheaton v. Hibbard, 20 Johns. 290, Dictum overruled, 41 Barb. 561, 564. "Wheeler v. Anthony, 10 Wend. 346, Distinguished, 1 Lans. 464. "Wheeler v. Billijngs, 38 N. Y. 263. Ap- proved, 36 Superior 262. . ■Wheeler v. Connecticut Mut. Life- Ins. Co., 16 Hun 317. Eeversed, 82 N. Y 543. "Wheeler v. Cropsey, 5 How. Pr. 288. See 8 How. Pr. 75. "Wheeler v. Curtis, 11 Wend. 653. See 4 Den. 66. "Wheeler v. Lozee, 12 How. Pr. 446. Followed, 15 How. Pr. 216, 217. "Wheeler v. Newbould, 5 Duer 29 ; 16. N. Y. 392. Explained, 1 Flipp. (U. S.) 218, 219. Followed, 39 Superior 302. -. „'W'heeler v. Rochester, &c., R. R, Co., 12 Barb. 227. Overruled, 51 N. Y. 568. "Wheeler v. Scofleld, 6 Hun 655. Ap- peal DISMISSED, 67 N. Y. 311. "Wheeler v. "W9.ful, 6 Hun 655. Appeal. DISMISSED, 67 N. Y. 311. "Wheeler v. "Westgate, 4 How. Pr. 269. Contra, 4 How. Pr. 67, 134. "Wheeler v. "Wright, 23 How. Pr. 228, Followed, 31 How. Pr. 472, 474. "Wheelock v. Hotchkiss, 18 How. Pr. 468. Contra, 33 How. Pr. 4, 5. ■Wheelock v. Lee, 15 Abb. Pr., n. s., 24. Eeversed, 64 N. Y. 242. ■Wheelock v. Lee, 54 How. Pr. 402. Ee- versed, 74 N. Y. 495. "Wheel-wright v. "Wheelwright, 2 Eedf. 501. Distinguished, 4 Eedf. 195. "Whelan v. "Whelan, 3 Cow. 537, 572. Approved, 39 How. Pr. 194, 265. "Whight V. "Wood, 57 Barb. 471. Distin- guished, 45 Superior 66. "Whipple V. Christian, 15 Hun 321. Af- firmed, 80 N. Y. 523. "Whipple V. Foot, 2 Johns. 48, 422. Fol- lowed, 11 Johns. 112. "Whitaker v. Brown, 8 Wend. 490. Doubted, 1 Hill 612. "Whitaker v. Desforst, 7 Bosw. 678. Followed, 37 How. Pr. 399, 415. "Whitbeck v. N. "Y. Central R. R. Co., 36 Barb. 644. Distinguished, 82 N. Y. 308, 313. Whitbeck v. Rowe, 25 How. Pr. 403. Approved, 62 Barb. 289. "White V. Anderson, 12 How. Pr. 377/. Followed, 13 How. Pr. 5. "White V. Anthony, 23 N. Y. 164. Fol- lowed, 9 Abb. Pr., N. s., 458. "White V. Ashton, 51 N. Y. 280. Ap- plied, 54 How. Pr. 338, 346, 348. White V. Bennett, 7 How. Pr. 59. Se& 9 How. Pr. 217, 218. "White V. Brown, 14 How. Pr. 282. Contra, 15 How. Pr. 1, 4 n. White V. Brownell, 2 Daly 329. Ap- proved, 57 How. Pr. 95. 412 CASES CEITICISED. ■White V. Carroll, 42 N. Y. 161. Ex- plained, 50 N. Y. 313. ■White V. Coatsworth, 6 N. Y. 137. Explained, 41 How. 30, 33. White V. Cole, 24 Wend. 116. Limited, 7 am 58. Wliite V. Coiilter, 3 Thomp. & C. 608. Eeversed 171 part, 59 N. Y. 629. White V. Featherstonehaugh, 7 How. Pr. 357. Overruled, 16 How. Pr. 7«. White V. Geraerdt, 1 Edw. 336. Over- buled, 63 N. Y. 257. White V. Haight, 16 N. Y. 310. Fol- xowED, 18 How. Pr. 150. White V. Howard, 52 Barb. 294. Dis- tinguished, 4 Eedf. 156. WTiite V. Howard, 46 N. Y. 145, 162. Followed, 54 How. Pr. 133, 136. WTiite V. Klinken, 16 Abb. Pr. 109. Followed, 11 Abb. Pr., n. s., 430. ■White V. Knapp, 8 Paige 173, 185. Fol- I.OWED, 72 Mo. 360. WTiite V. MoNett, 33 N. Y. 371. Ap- proved, 7 Lans. 491 ; 33 Superior 499 ; 36 Id. 254. Distinguished, 5 Daly 207. "White V. Mealio, 37 Superior 72. Re- versed, 63 N. Y. 609. WTiite V. Nellis, 31 N. Y. 405. Ap- proved, 52 Wis. 617. White V. Osborn, 21 Wend. 72, 75. Fol- xowBD, 83 N. Y. 205. WTiite V. Parker, 8 Barb. 48. Com- pared, 8 N. Y. 402. ■White V. Smith, 54 N. Y. 522. Distin- •GUISHED, 43 Superior 451. ■White V. Spencer, 14 N. Y. 247, 249. Followed, 84 N. Y. 44. White V. Springfield Bank, 3 Sandf. 322. Questioned, 8 Bosw. 511. Whitehall Transp. Co. v. New York .Steamboat Co., 51 N. Y. 369. Followed, 22 Hun 309. WTiitehead v. Buffalo, &o., R'y Co., 18 How. Pr. 218. Not applicable, 1 Hun «55, 658. "Whitehead v. Smith, 14 Hun 531. Ar- TIEMED, 81 N. Y. 151. Whitehead v. Smith, 10 Week. Dig. 198. Distinguished, 22 Hun 447. Whitfield V. 'United States, 2 Otto 165. JS'oT followed, 81 N. Y. 285, 290. WTiiting V. Barney, 30 N. Y. 330. Fol- lowed, 39 How. Pr. 193, 260. Whiting V. Q-earty, 14 Hun 498. Dis- tinguished, 56 How. Pr. 326, 329 n. WTiitlock V. Roth, 5 How. Pr. 143. Ap- proved, 5 Abb. Pr. 162, 165 ; 15 How. Pr. 48, ■Whitman v. Hogan, 15 Hun 197. Ee- VERSBD, 24 Hun vni. •Whitmarsh v. HaU, 3 Den. 375. Not nr CONFLICT, 82 N. Y. 10, 19. Whitney v. Snyder, 2 Lans. 477. Ex- plained, 56 N. Y. 137. Whitney v. Townsend, 7 Hun 233. Appeal dismissed, 67 N. Y. 40. ■Whitney v. Wells, 28 How. Pr. 150. Followed, 48 Barb. 342. Whitney Arms Co. v. Barlow, 68 N. Y. 34. Followed, 80 N. Y. 128, 136. Whitson V. Whitson, 53 N. Y. 479. In point, 4 Redf. 174. "Whittaker ,v. Chapman, 3 Lans. 155. Approved, 24 Hun 476. "Whritner v. 'Universal Life Ins. Co., 4 Abb. N. Cas. 23. See 4'Abb. N. Gas. 40 n. "Wibert v. New York and Brie R. R. Co., 19 Barb. 36. Overruled, 47 N. Y. 33, 35. Re-apfirmed, 29 Barb. 633. See 2 Sweeny 677. Wicker v. Dresser, 13 How. Pr. 331. Followed, 22 How. Pr. 309, 311. Contra, 13 How. Pr. 173 ; 14 Id. 465. Wicker v. Dresser, 14 How. Pr. 465. Contra, 22 How. Pr. 311. "Wickes V. Clarke, 3 Edw. 58. Reversed in part, 8 Paige 161. "Wiokes V. Clarke, 8 Paige 161, 166. Followed, 33 Gratt. (Va.) 96. "Wickware v. Bryan, 11 Wend. 545. Corrected, 6 Hill 621. "Wiggin V. Bush, 12 Johns. 306. Re- viewed, 1 Flipp. (U. S.) 39. "Wiggin V. G-ans, 4 Sandf. 646. Re- viewed, 2 Abb. N. Cas. 152, 154. Contra, 15 How. Pr. 342; 19 Id. 483. "Wiggins V. Howard, 22 Hun 126. Af- firmed, 83 N. Y. 613. "Wight V. Alden, 3 How. Pr. 213. See 12 How. Pr. 161. "Wilcox V. Hawley, 31 N. Y. 648, 658. DiSTrtTGuisHED, 35 Superior 491. Wilcox V. Howell, 44 N. Y. 402. Fol- lowed, 42 Superior 32. W"iloox V. Rome, N. Y. 523. "WiUis V. Long Island R. R. Co., 34 N.^ Y. 670, 679. Approved, 84 N. Y. 10. "WiUis V. Mott, 36 N. Y. 486. Distin- guished, 67 N. Y. 414. "WiUover v. HiU, 72 N. Y. 36. Followed,. 81 N. Y. 246, 250. "WUls V. People, 3 Park. Cr. 473. Over- ruled, 84 N. Y. 485. "WiUs V. Simmonds, 51 How. Pr. 48.^ Modified, 8 Hun 189. "Willson V. Poree, 6 Johns. 110. Distin- guished, 11 Johns. 414. "WUmerding v. Moon, 1 Duer 645. Ap- proved, 12 How. Pr. 197, 198. "WUmersdoerffer v. Lake Mahopac Improvement Co., 18 Hun 387. Distin- guished, 8 Abb. 170. WUson V. Abrahams, 1 Hill 207. Fol- lowed, 38 Superior 482. "WUson V. Boerum, Anth. N. P. 239. Ee- VERSED, 15 Johns. 286. "Wilson V. Deen, 74 B.Y. 531. Distin- guished, 61 How. Pr. 39. "WUson V. Duncan, 8 Abb. Pr. 354. Fol- lowed, 35 Superior 372. "WUson V. Duncan, 11 Abb. Pr. 3. Not concurred in, 30 How. Pr. 30, 34. "WUson V. Edwards, 6 Lans. 134. Dis- tinguished, 66 N. Y. 332. "WUson V. Porsyth, 24 Barb. 105. Fol- lowed, 15 How. Pr. 193, 194. WUson V. Q-enesee Mutual Ins. Co., 16 Barb. 511. Approved, 19 Abb. Pr. 325, 340,. 350; IBobt. 501. "WUson V. Green, 20 Wend. 189. Con- tra, 5 N. Y. 383. "WUson V. Herkimer Co. Mutual Ins, Co., 6 N. Y. 53. See 25 Barb. 499. "WUson V. Lawrence, 18 Hun 56. Af- firmed, 82 N. Y. 409. "Wilson V. Mayor of New "STork, 1 Abb. Pr. 4. Approved, 1 Abb. Pr. 79, 80. WUson V. Mayor, &c., of New York,, 1 Den. 595. Eeviewed, 16 W. Va. 287. "WUson V. People, 4 Park. Cr. 619. Crit- icised, 6 Park. Cr. 202. "WUson V. Roberts, 5 Bosw. 100. Dis- tinguished, 60 N. Y. 446. WUson V. Robertson, 21 N. Y. 587. Followed, 61 How. Pr. 76. 414 CASES CEITICISED. ■Wilson V. Robinson, 6 How. Pr. 110. CoNTEA, 7 How. 389. Wilson V. Simpson, 23 Hun 665. Ap- peal DISMISSED, 84 N. Y. 674. Wilson V. "Wheeler, 6 How. Pr. 49. Ee- «TOBED, 14 Abb. Pr., n. s., 47 n. Wilson V. White, 2 Wend. 265. Ex- plained, 3 How. Pr. 234. Winans v. Peebles, 31 Barb. 371. See 8 Abb. Pr., N. s., 43, 44; 38 How. Pr. 483, 490. Winchell v. Hicks, 18 N. Y. 558. Dis- TINGT7ISHBD, 48 N. Y. 105 ; 68 N; Y. 465. Fol- lowed, 35 Superior 223. "Wines v. Mayor, &o., of New York, 70 N. Y. 613. Distinguished, 83 N. Y. 377. Winne v. McDonald, 39 N. Y. 233. Dis- tinguished, 58 N. Y. 78. Winne v. Sickles, 9 How. Pr. 217. Fol- lowed, 38 Superior 137. Winship v. Pitts, 3 Paige 259. Distin- guished, 57 N. Y. 615. "Winston v. English, 44 How. Pr. 398. AiriBMED, 14 Abb. Pr., n. s., 119. "Winston v. English, 35 Superior 512. Approved, 40 Superior 92. W"inter v. Kinney, 1 N. Y. 365. Dis- tinguished, 80 N. Y. 202, 210. Followed, 84 N. Y. 237. "Wintermute v. Clarke, 5 Sandf. 242. Approved, 1 Abb. Pr. 325, 327. "Wisner v. Teed, 9 How. Pr. 143. Over- ruled, 9 How. Pr. 481, 484. See 11 Id. 266, 268. "Wiswall V. MoGown, 2 Barb. 270. Dis- tinguished, 61 N. Y. 156. "Witbeok v. "Waine, 16 N. Y. 532. Re- viewed, 46 N. Y. 397. Witherby v. Mann, 11 Johns. 518. Fol- lowed, 12 Johns. 411. "Withers v. New Jersey Steamboat Co., 48 Barb. 455. ApputMED, 6 Alb. L. J. 200. Witt V. Mayor, &c., of New "York, 5 Eobt. 248. See 6 Robt. 441. "Wixson V. People, 5 Park. Cr. 119. Fol- lowed, 12 Hun 214. Contra, 2 Park. Cr. 182. "Wolcott V. Holcomb, 31 N. Y. 125. Followed, 52 N. Y. 659. "Wolcott V. "V"an Santvoord, 17 Johns. 248. Approved, 15 N. Y. 339. Wolf V. Groodhue Fire Ins. Co., 43 Barb. 400. Affirmed, 41 N. Y. 620. "Wolfe V. Burke, 7 Lans. 151. Approved, 1 Hun 367, 375 ; 3 Thomp. & C. 552. "Wolfe V. Frost, 4 Sandf. Ch. 72, 93. Dis- tinguished, 84 N. Y. 39. "Wolfe V. Goulard, 18 How. Pr. 64. Ap- proved, 13 Abb. Pr., N. s., 390. Followed, 35 How. Pr. 113; 1 Thomp. & C. 627 n. "Wolfkiel V. Sixth Ave. B. R. Co., 38 N. Y. 49. Followed, 83 N. Y. 574. "Wood V. Anthony, 9 How. Pr. 78. Con- tra, 8 How. Pr. 83. See Id. 342. "Wood V. Belden, 59 Barb. 549. Re- versed, 54 N. Y. 658. Wood V. Bolard, 8 Paige 556. Ex- plained, 2 Barb. Ch. 291. "Wood V. Brown, 34 N. Y. 337. Fol- lowed, 60 How. Pr. 514. Limited, 41 N. Y. 46, 52. "Wood V. Byihgton, 2 Barb. Ch. 388. Distinguished, 82 N. Y. 555, 559, 560. Doubted, 3 tledf. 97. "Wood V. Ohapin, 13 N. Y. 509. Distin^ GUiSHED, 6 Eobt. 166, 234. Followed, 31 "Wis. 389, 395. "Wood V. Oolvin, 2 Hill 566. Denied, 1 "W^ils. (Ind.) 235. Oveekuled, 36 Barb. 501, 507. Wood V. Dwight, 7 Johns. Ch. 295. Ap- plicable, 8 Abb. N. Cas. 235. "Wood V. Erie R'y Co., 72 N. Y. 196. Distinguished, 8 Abb. N. Cas. 81, 82. Fol- lowed, 24 Hun 102. "Wood V. Henry, 40 N. Y. 124. Distin- guished, 11 Abb. Pr., N. s., 72, 73 ; 14 Id. 200, 205; 53N. Y. 263. "Wood V. Hitchcock, 20 "Wend. 47. Ap- plied, 11 Neb. 153. "Wood V. HoUister, 3 Abb. Pr. ,14. Dis- tinguished, 23 Hun 82, 83. Contea, 17 Abb. Pr. 99. "Wood V. Jackson, d. Genet, 8 "Wend. 9. Followed, 58 N. Y. 651. See 4 Lans. 281. "Wood V. Lafayette, 46 N. Y. 484. Ap- proved, 50 N. Y. 265. See 68 Id. 181. "Wood V. Lester, 29 Barb; 145. Ee- VIEWED, 33 Superior 40. "Wood V. Mayor, &c., of New York, 3 Abb. Pr., N. s., 467. Explained. 4 Abb. Pr. N. s., 152. I Wood V. Mayor, &c., of New York, 34 How. Pr. 501. See 34 How. Pr. 508, 509. "Wood V. People, 53 N. Y. 511. Distin- guished, 5 Hun 543. "Wood V. People, 3 Thomp. & C. 506. Reversed, 59 N. Y. 117. "Wood V. "Wood, 18 Hun 350. Affirmed, 83 N. Y. 575. "Wood V. "Wood, 2 Paige 108. Distin- guished, 61 N. Y. 404. Followed, 20 Mich. 223. "Wood V. "Wood, 4 Paige 299. Followed 4 Eedf. 225. "Wood V. "Wood, 5 Paige 596. Doubted, 8 C. E. Gr. (N. J.) 381. "Woodbury v. Morton, 44 How. Pr. 56. Followed, 44 How. Pr. 149, 150. CASES CEITICISED. 415 "Woodcock V. Bennett, 1 Cow. 711, POLLOWED, 72 111. 590. Woodcock V. Roberts, 66 Barb. 498. CoNTBA, as to Imtpomt, 66 N. Y. 385. Wooden v. Austin, 51 Barb. 9. Af- firmed, 6 Alb. L. J. 178. See 4 Id. 113. Wooden y. Waffle, 6 How. Pr. 145. Appboved, 8 How. Pr. 373, 374. "Woodmansee v. Rodgers, o8 How. Pr. '98. Afpibmed, 58 How. Pr. 439. Woodmansee v Rogers, 58 How. Pr. 439; 20 Hun 285. ArrjKMED, 59 How. Pr. 402; 82N. Y. 88. Woodruff V. Dickie, 31 How. Pr. 164 ; 1 Eobt. 619. Disapproved, 53 Barb. 525. ■Overruled, 4 Daly 494. Woodruff V. Leonard, 1 Hun 632. Distinguished, 11 Hun 145, 146. Woodruff V. Peterson, 51 Barb. 252. ^ee 56 Barb. 404. Woods V. De Figaniere, 16 Abb. Pr. 1. Followed, 5 Daly 413. Woods V. Pangbom, 14 Hun 540. Ee- VERSED, 19 Alb. L. J. 56. Woods V. People, 55 N. Y. 515. Fol- lowed, 7 Hun 171, 173. Woodward v. Washburn, 3 Den. 369. Eeviewed, 9 Abb. N. Cas. 396. Woodworth v. Bank of America, 19 Johns. 391. Followed, 23 Hun 185, 187. Woodworth v. Bennett, 43 N. Y. 273. Followed, 81 N. Y. 285, 291. Wooster V. Sherwood, 25 N. Y. 278. Limited, 57 N. Y. 33. Wordsworth v. Lyon, 5 How. Pr. 463. Followed, 7 How. Pr. 17. Contra, 14 How. Pr. 470, 472. Wray v. Rhinelander, 52 Barb. 553. Affirmed, 41 N. Y. 619. Wright V. Brown, 67 N. Y. 1. Ex- plained AND DISTINGUISHED, 60 HoW. Pr. 148. Wright V. Delafield, 25 N. Y. 266. Ee- viewed, 8 Abb. N. Cas. 156 ; 46 Superior 45. Wright V. Douglass, 3 Barb. 554. Ee- VERSED, 2 N. Y. 373. See 7 Id. 564. Wright V. Equitable Life Assurance Soc, 50 How. Pr. 367. Contra, 59 N. Y. 557. Wright V. Fleming, 12 Hun 469. Dis- tinguished, 3 Eedf. 480. Wright V. Holbrook, 32 N. Y. 587. Followed, 60 How. Pr. 72. Wright V. Hunter, 46 N. Y. 409. Fol- lowed, 50 N. Y. 683. Wright V. Miller, 8 N. Y. 10. Ex- plained, 5 Daly 416. Wright V. N. Y. Central R. R. Co., 25 N. Y. 562. Distinguished, 38 N. Y. 247 ; 55 Id. 586. Wright V. Nostrand, 58 How. Pr. 184. Followed, 58 How. Pr. 289, 290. Wright V. Ritterman, 1 Abb. Pr., n. s., 428. Followed, 8 Abb. N. Cas. 430. Wright V. Weeks, 25 N. Y. 153. Distin- guished, 59 Barb. 38. "Wright V. "Wright, 59 Barb. 505. Af- firmed, 54 N. Y. 437. "Wright V. "Wright, 1 Cow. 598. Ovee- EULED, 2 Barb. 94. "Wyatt V. Benson, 23 Barb. 327. Ex- plained, 11 Abb. Pr., N. s., 138. Contra, 23 How. Pr. 285, 286. "Wyeth V. Branif, 14 Hun 537. Eeveesed, 84 N. Y. 627. "Wyeth V. Braniff, 7 Week. Dig. 135. Ee- VERSED, 11 Week. Dig. 219. W"ylie V. Marine Nat. Bank,< 61 N. Y. 415, 416. Followed, 83 N. Y. 381, 383. "Wyman v. Mayor, &c., of New "S"ork, 11 Wend. 486. See 10 How. Pr. 199, 206. Wyman v. "Wyman, 24 N. Y. 253. Dis- tinguished, 58 Barb. 325. "Wynhamer v. People, 11 How. Pr. 530. Followed, 12 How. Pr. 83. Wynhamer v. People, 13 N. Y. 378. Approved, 13 Vr. (N. J.) 344. Criticised, 69 111. 80, 86. Distinguished, 60 N. Y. 13. Followed, 1 Civ. Pro. 326 ; 83 N. Y. 242. "Wynkoop V. Halbut, 43 Barb. 266. See 31 How. Pr. 264, 266. "Wynkoop v. Holbert, 25 How. Pr. 158. Considered, 28 How. Pr. 232, 234. "Wynn v. Alden, 4 Den. 163. See 2 'Thomp. & C. 123. Y. "yale V. Dederer, 17 How. Pr. 165. See 20 How. Pr. 242, 247 n. "yale V. Dederer, 19 How. Pr. 126. Ee- VERSED, 20 How. Pr. 242. Yale V. Dederer, 18 N. Y. 265. Ap- proved, 33 Superior 499 ; 10 W. Va. 171, 175. Commented on, 42 N. Y. 631, 640. Distin- guished, 3 Thomp. & C. 680, 682. See 20 How. Pr. 24? ; 8 Kan. 525, 527. 416 CASES CKITICISED. Yale V. Dederer, 22 N. Y. 450. Ap- PROTED, 33 Superior 499 ; 36 Id. 254 ; 46 Mo. 532, 544. Commented on, 42 N. Y. 632. Dis- TiNouiSHED, 3 Thomp. & C. 680, 682. Fol- lowed, 8 Abb. Pr., n. s., 43, 44 ; 68 N. Y. 329. EE-ArriEMED, 1 Sweeny 682, 683. Ee- TiEWED, 33 N. Y. 376, 380. See 8 Kans. 525,527. Tale y. Qwinits, 4 How. Pr. 253. See 9 How. Pr. 1, 4. Tates, Matter of, 4 Johns. 316. Eb- VEESED, 6 Johns. 337. Ee-affibmbd, 9 Johns. 395. Beviewed, 54 Cal. 356 ; 6 Fed. Eep. 74. Yates, Matter of, 9 Johns. 395. Ee- viEWED, 6 Fed. Eep. 74. Yates V. Fassett, 5 Den. 21. Followed, 38 N. Y. 384. Yates V. Lyon, 61 Barb. 205. Eeversed, 10 Alb. L. J. 239. Yates V. Olmsted, 65 Barb. 43 ; Id. 462. MoDEPiED, 56 N. Y. 632. Yates V. People, 6 Johns. 335. Ap- proved, 64 Mo. 212. Followed, 10 How. Pr. 415. Overruled, 9 Johns. 395. Yates V. Yates, 9 Barb. 324, 345. Ap- PKOVED, 34 N. Y. 584, 620. Yorks V. Peck, 14 Barb. 644. Dktin- GUISHED, 5 Daly 143. Young V. Brush, 18 Abb. Pr. 171 ; 28 N. Y. 667. Eevebsed, 41 N. Y. 620. Young V. Guy, 12 Hun 325. Followed, 23 Hun 1, 4. Young V. Rummell, 2 Hill 478. Fol- lowed, 58 N. Y. 651. Eeconciled, 16 W. Va. 672. Younghanse v. Fingar, 63 Barb. 299. Approved, 46 How. Pr. 241. Followed, 66 Barb. 520. Younghanse v. Fingar, 43 How. Pr. 259. Appeal dismissed, 6 Alb. L. J. 178. Younghanse v. Fingar, 47 N. Y. 99. Approved, 46 How. Pr. 241. Followed, 64 Barb. 567 ; 66 Id. 520 ; 14 Hun 629. Ee-ae- fiemed, 62 N. Y. 27. Youngs V. Carter, 50 How. Pr. 410. Followed, 54 How. Pr. 233. Youngs V. Lee, 12 N. Y. 551. Ap- proved, 5 Duer 260, 270. DisTiNGtnsHED, 81 N. Y. 218, 226. Youngs V. Youngs, 45 N. Y. 254. Ap- proved, 56 How. Pr. 520, 526. Disim- GIJISHED, 23 Hun 123, 130. Zabriskie v. Smith, 13 N. Y. 322. Con- curred IN, 14 How. Pr. 61, 63. Criticised, 24 Hun 205, 206. Questioned, 58 N. Y. 287. Zborowski, Matter of, 68 N. Y. 88. Followed, 80 N. Y. 565, 569. Zimmerman v. Ohrisman, 7 Hill 153 See 2 How. Pr. 272. Zink V. Attenburg, 18 How. Pr. 108. Followed, 18 How. Pr. 397. Zinn, In re, 40 How. Pr. 461. Over- ruled, 43 How. Pr. 64. Zinn V. NeTV Jersey Steamboat Co., 49 N. Y. 442. Followed, 16 Kan. 333, 337. Zinn V. Ritterman, 2 Abb. Pr., n. s., 261- Contea, 4 Eobt. 704. CASES DIGESTED. A TABLE OF CASES DIGESTED IN THIS VOLUME. A. AWbott V. Johnstown, Ac, E. E. Co., 80 N. Y. 27. (E.E. Co.)236. Abrahams v. Bensen, 22 Hun 605 ; 60 How. Pr. 208. (Trial) 269. Acker v. Acker, 81 N. Y. 143. (Lim. of Ac.) 174, 176. Achelis v. Kalman, 60 How. Pr. 491. (App.) 11; (Attach.) 28. Adams v. Adams, 24 Hun 80. (Contracts) 60- Adams v. Conover, 22 Hun 424. (Cov'ts) 77. Adams v. Eoberts, 1 Civ. Pro. 204. (Plead.) 225; (Trial) 269. Adams v. Ward, 60 How. Pr. 288. (Costs) 71. Adee V. Bigler, 81 N. Y. 349. (Cred. S.) 78. Adee v. Campbell, 79 N. Y. 52. (Distrib.) 91. Adsit V. Sanford, 23 Hun 45. (Cred S.) 78. Agate V. Morrison, 84 N. Y. 672. (App.) 15. Albright v. Eiker, 22 Hun 367. (Schools) 251. Albro V. Eood, 24 Him 72. (Highw.) 131. Alexander v. Cauldwell, 83 N. Y. 480. (Corp.) 67. Allen, Matter of, 24 Hun 408. (Assign'ts) 27. Allen V. St. Louis Ins. Co., 46 Superior 175. (Ins.) 152. American Nat. Bank v. Wheelock, 82 N. Y. 118. (App.) 18. American Union Teleg. Co. v. Middleton, 80 N. Y. 408. (Arrest) 23 ; (Trespass) 268. Anderson v. Haddon, 9 Abb. N. Cas. 289. (Corp.) 69. Andrews v. Appel, 22 Hun 429. (Cov'ts) 77 ; (Dam.) 80. Andrews v. Long, 22 Hun 24. (Costs) 73. Andrews v. Long, 79 N. Y. 573. (App.) 19. 417 Andrews v. New Jersey Steamboat Co., 23 Hun 645. (Dam.) 81 ; (Trusts) 274. Archer v. Furniss, 4 Eedf. 88. (Courts) 76. Argall V. Jacobs, 21 Hun 114. (Bank'cy) 36- Argotsinger u. Vines, 82 N. Y. 308. (Dam.) 81 ; (Trespass) 268. Armitage v. Mace, 46 Superior 550. (Evid.) 103; (Gift) 127. Armstrong v. Cummings, 22 Hun 570. (Cosls) 74. Arteaga v. O'Connor, 46 Superior 91. (Bail) 34. Ashley v. Turner, 22 Hun 226. (Exec.) 111. Association for Belief of Aged Indigent Females v. Eagleson, 60 How. Pr. 9. (Interest) 159. Atlantic, &c., Teleg. Co. v. Baltimore, &c., E. E. Co., 46 Superior 377. (Action) 4 ; (Injunc.) 140, 142, 143 ; ( Jurisd.) 166 ; (Process) 232. Atlantic State Bank v. Savery, 82 N. Y. 291. (Banks) 38; (Corp.) 67; (Partners.) 219; (Pr. & Ag-t) 229. Attorney, Matter of an, 83 N. Y. 164. (Att'y & CI.) 31 ; (Depos.) 87. Attorney-General v. Guardian Mut. Life Ins. Co., 82N. Y. 336. (Ins.) 156. Attorney-General v. North Amer. Life Ins. Co., 80 N. Y. 152. (Ins.) 156. Attorney-General v. North Amer. Life Ins. Co., 82 N. Y. 172. (Ins.) 156, 157. Auchmuty, Matter of, 79 N. Y. 622. (App.) 14. Auerbach v. New York Central, &o., E. E. Co., 60 How. Pr. 382. (E. E. Co.) 238. Avery v. Empire Woolen Co., 82 N. Y. 582. (Bound.) 45 ; (Eq.) 99 ; (Eip. Eights) 248. Ayery v. Willis, 24 Hun 548. (Mort.) 191. 418 CASES DIGESTED. Avery v. Willson, 81 N. Y. 341. (Contracts) I Ayres v. Water Comm'rs of Binghamton, 22 €1 ; (Sales) 249. I Hun 297. (App.) 9 ; (Witn.) 291, 292. B. Babbitt v. Crampton, 1 Civ. Pro. 169. (Dis- co,v.) 91. Babcock v. Bonnell, 80 N. Y. 244. (Dr. & Cr.) 82 ; (Sales) 250. Baboock v. Clark, 23 Hun 391. (Courts) 75 ; (Mort.) 190. Babcock v. Libbey, 82 N. Y. 144 ; 17 Hun 131. (Fraud) 125. Bacon v. Frisbie, 80 N. Y. 394. (Att'y & CI.) 33 ; (Witn.) 287. Badeau v. Niles, 9 Abb. N. Cas. 48. (Plead.) 223. Baine v. City of Eochester, 1 Civ. Pro. 296. (Mun. Corp.) 197. , Baird v. Mayor, &c., of New York, 83 N. Y. 254. (N. Y.) 214. Baker v. Baker, 23 Hun 356. (Contempt) 55 ; (Ex. & Ad.) 119. Baker v. Van Epps, 60 How. Pr. 375. (Exec.) 111. Balbo V. People, 80 N. Y. 484. (Evid.) 106> 107 ; (Trial) 271, 272. Baldwin v. Perry, 1 Civ. Pro. 118 ; Id. 32 ; Id. 33 n. (Courts) 175 ; (Defin.) 86 ; (Exec.) 112. Baldwin v. Perry, 61 How. Pr. 289. (Exec.) 111. Baley v. Homestead Fire Ins. Co., 80 N. Y. 21. (Ins.) 147. Banker v. Braker, 9 Abb. N Cas. 411. (Leases) 171. Barbour v. De Forrest, 61 How. Pr. 181. (Wills) 282. Barlow v. Myers, 24 Hun 286. (Ex. & Ad.) 119 ; (Wills) 284. Barnes, Estate of, 1 Civ. Pro. 59. (Con- tempt) 56 ; (Ex. & Ad.) 113. Barnes v. Brown, 80 N. Y. 527. (Contracts) 61 ; (R. E. Co.) 238. Barnett v. Zacharias, 24 Hun 304. (Estop.) 101 ; (Usury) 278. Barras v. Barras, 4 Eedf. 263. (Ex. & Ad.) 116. Barton ij. Hosner, 24 Hun 467. (Ex. & Ad.) 119. Bassett v. Wheeler, 84 N. Y. 466. (App.) 15. Bates V. Bradley, 24 Hun 84. (Bauk'cy) 35. Bates V. First Nat. Bank of Brockport, 23 Hun 420. (Evid.) 104 ; (Husb. & W.) 135. BaucuB V. Stover, 24 Hun 109. (Ex. & Ad.) 118, 118, 119. Baxter v. Drake, 1 Civ. Pro. 225 ; 61 How. Pr. 365 ; 22 Hun 565. (Arrest) 21. Bayard, Matter of, 61 How. Pr. 294. (Const. L.) 55; (Corp.) 199; (Stat.) 260. Baylis v. Swartwout, 4 Eedf. 395. (Leg.) 172. Bayliss v. Cockroft, 81 N. Y. 363. (App.) 16 ; (Evid.) 105; (Prom. N.) 235; (Trial) 269; (Witn.) 290. Beach v. City of Elmira, 22 Hun 158. (In- junc.) 142. Bean v. Edge, 84 N. Y. 510. (Land. & T.) 168. Bean V. Edge, 46 Superior 455. (Amend.) 7 ; (Sales) 249 ; (Trover) 273. Bean v. Tonnelle, 24 Hun 353 ; 1 Civ. Pro. 33. (Exec.) 111. Beebe v. Estabrook, 79 N. Y. 246. (Advance- ment) 5 ; (Defin.) 85. Belmont v. Cornen, 82 N. Y. 256. (Process) 232. Benedict v. Western Union Teleg. Co. 9 Abb. N. Cas. 214. (Corp.) 65 ; (Teleg. Co.) 265. Benedict, &c., Manuf. Co. v. Thayer, 82 N. Y 610. (App.) 18. Benjamin v. Dimmick, 4 Eedf. 7. (Advance- ment) 5 ; (Leg.) 172. Bennett v. Austin, 81 N. Y. 308. (Dr. & Cr.) 82 ; (Mort.) 187, 188, 193, 194 ; (Pr. & Agt.) 228 ; (Trusts) 275. Bennett v. Bagley, 22 Han 408. (Estop.) 102; (Exec.) 109. Bennett v. Garlook, 79 N. Y. 302. (Trusts) 275. Bennett v. North British, &c., Ins. Co., 81 N. Yi273. (Ins.) 147. Bennett v. Smith, 23 Hun 50. (Libel) 173. Bensel v. Gray, 80 N. Y. 517. (Spec. Perf.) 259. Benson, Matter of, 60 How. P. 314. (Impris.) 138. Bergen v. Carman, 79 N. Y. 146. (App.) 14 ; (Exec.) 109 ; (Mort.) 193. Bergen v. Patterson, 24 Hun 250. (Bank'cy) 36. Bergen v. Urbahn, 83 N. Y. 49. (Mort.) 191. Bergen v. Wyokoff, 84 N. Y. 659 ; 1 Civ. - Pro. 1. (App.) 13; (Partition) 218; (Process) 232. CASES DIGESTED. 419 Berwick v. Halsey, 4' Eedf. 18. (Ex. & Ad ) J18, 119. Best V. Thiel, 79 N. Y 15. (Banks) 40. Betsinger v: Chapman, 24 Hun 15. (Defln ) 86. Bewley v. Equitable Life Assur. Soc. 61 How Pr. 344. (Ins.) 155. Bipler v. Pinkney, 24 Hun 224. (Costs) 71. Bills V. New York Central, &o., E. E. Co., 84 N. Y. 5. (E. E. Co.) 239. Bingham v. Bingham,l Civ. Pro. 166. ( AfBd.) 6. Bishop J). Alcott, 21 Hun 255. (Guar.) 127! Biesell v. Eussell, 23 Hun 659. (Witn.) 290. Black V. Curry, 1 Civ. Pro. 193. (Depos.) 89. Black V. O'Brien, 23 Hun 82. (Costs) 70. Blancan, Matter of, 4 Eedf. 151. (Ex. & Ad.) 112. Bliss V. Hoggson, 84 N. Y. 667. (App.) 16. Bliven v. Peru Steel, Ac, Co. 60 How Pr. 280 . 9 Abb. N. Cas. 205. (Corp.) 68. ' Bloomingdale «. Lisberger, 24 Hun 355. (Husb. & W.) 136. Blossom V. Estes, 22 Hun 472, 84 N. Y. 614. (Action) 4 ; (App.) 14 ; (Attach.) 30. Blossom V. Hatfield, 24 Hun 275. (Judg- m't) 165. Blunt V. Mayor, &c., of New York, 60 How. Pr. 482. (Courts) 75. Board of Excise of Westchester v. Curley, 9 Abb. N. Caa. 100. (Liq. Sell.) 176. Boardman v. Lake Shore, &c., E'y Co., 84 N. Y. 157. (Const. L.) 54 ; (Corp.) 64, 69. Boardman v. Supervisors of Tompkins County, 22 Hun 231. (Taxes) 262. Bodell V. Gibson, 23 Hun 40. (Lim. of Ac. 175. Bollerman v. Blake, 24 Hun 187. (Defin.) 85 ; (Descent) 90. Bommer v. American Spiral, &c., Manuf. Co., 81 N. Y. 468. (App.) 17 ; (Corp.) 64. Bon V. Sanford, 23 Hun 520. (Eef.) 245. Bonn V. Steiger, 21 Hun 219. (Acct'g) 3. Bonnell v. Griswold, 80 N. Y. 128. (Manuf. Co.) 178, 180 ; (Stat.) 261. Bonnell v. Jewett, 24 Hun 524. (Hom.) 1«3. Bonynge v. Field, 81 N. Y. 159. (Att'y & CI.), 31; (Evid.)102. Boone v. Citizens' Savings Bank, 84 N. Y. 83 ; 9 Abb. N. Cas. 146 ; 21 Hun 235. (Banks) 40; (Trusts) 277. Boots V. Washburn, 79 N. Y. 207. (Bridges) 45 ; (Highw.) 131. Borke v. M'Conville, 4 Eedf. 180. (Ex. & Ad.) 115. Borland v. Mercantile Mat. Ins. Co., 46 Su- perior 433. (Ins.) 152, 153; (Prac.) 228; (Shipp.) 256. Boston, &c., E'y Co., Matter of, 22 Hun 176. (Em. Dom.) 98. Boucicault v. Boucicault, 21 Hun 431. (Ar- rest) 22 ; (Divorce) 92 ; (Motions & O.) 195. Boyd, Matter of, 4 Eedf. 154. (Acct'g) 3 • (Wills) 284. Brackett v. Miller, 24 Hun 560. (Exec.) 109. Bradner v. Strang, 23 Hun 445. (Fraud) 125. Brady v. Cochran, 23 Hun 274. (Eq.) 99. Branch v. Levy, 46 Superior 428. (Witn.) 287. Brassell v. New York Central, Ac, E. E. Co. 84 N. Y. 241. (E. E. Co.) 239. Bray v. Farwell, 81 N. Y. 600. (Joint Stock Co.) 160. Brick V. Fowler, 61 How. Pr. 153. (Eef.) 246. Briggs V. Central Nat. Bank, 61 How. Pr. 250. (Banks) 38. Briggs V. Waldron, 83 N. Y. 582. (App.) 16 ; (Gas Co.) 127 ; (Trial) 270. Brill V. Tuttle, 81 N. Y. 454. (Assign.) 25 ; (Bills Exch.) 41 ; (Evid.) 104. Brinckerhoff v. Bostwick, 23 Hun 237. (Banks) 37. Brink v. Hanover Fire Ins. Co., 80 N. Y. 108. (Ins.) 146, 150 ; (Witn.) 288. Broadhead v. Lycoming Fire Ins. Co., 23 Hun 397. (Ins.) 155. ■ Broadway Underground E'y Co., Matter of, 23 Hun 693. (E. E. Co.) 237. Brockway v. Ireland, 61 How. Pr. 372. (Manuf Co.) 180. Brodar v. Lord, 46 Superior 205. (Judgm't) 163. Brooklyn, &c., E. E. Co., Matter of, 81 N. Y. 69. (E. E. Co.) 237, 241. Brooks V. Brooks, 4 Eedf. 313. (Husb. & W.)135; (Lim. of Ac.) 175. Brooks V. Hey, 23 Hun 372. (Prom. N.) 233. Brown v. Decker, 21 Hun 199. (jndgm't) 165. Brown v. Gallaudet, 80 N. Y. 413. (Judgm't.) 162. Brown v. Griswold, 23 Hun 618. (Costs) 74. Brown v. Kerrigan, 4 Eedf. 146. (Ex. & Ad.) 120. Brown v. Knapp, 79 N. Y. 136. (Interest) 158 ; (Leg.) 172. Browning D.Marvin, 22 Hun 547. (Partners.) ' 220. Bruce v. Fulton Nat. Bank, 79 N. Y. 164. (Contracts) 58 ; (Leases) 170. Bruce v. Piatt, 80 N. Y. 379. (Manuf. Co.) 178, 179. Brueck v. Phoenix Ins. Co. 21, Hun 541. (Ins.) 146. 420 CASES DIGESTED. Brumfield v. Boutall, 24 Hun 451. (Mort.) 187; (Vend. & P.) 279. Brush V. Barrett, 82 N. Y. 400. (Lim. of Ac.) 175. Bryant v. Stewart, 83 N. Y. 270. (Ex. & Ad.) 115. Buckingham v. Sweezey, 61 How. Pr. 266. (Attach.) 30. Budd V. Thurber, 61 How. Pr. 206. (Con- tracts) 59. Buffalo, &c., B. B. Co. v. Clark, 22 Hun 359. (Corp.) 66. , Buffalo Grape Sugar Co. v. Alberger, 22 Hun 349. (Corp.) 64. Bunn V. Daly, 24 Hun 526. (Exec.) 111. Burdette v. Lowe, 22 Hun 588. (App.) 19. Burkitt V. Harper, 79 N. Y. 273. (Mech. Lien) 183. Burnett v. Snyder, 81 N. Y. 550. (Partners.) 218. Burnham v. Brennan, 60 How. Pr. 310. (Abate.) 1. Burns v. City of Schenectady, 24 Hun 10, (App.) 9, 10. Burns v. Howard, 9 Abb. K. Cas. 321. (Just. P.) 167. Burr V. Amer. Spiral, &c., Co., 81 N. Y. 175^ 8 Abb. N. Cas. 403. (Contracts) 59. Bush V. Weeks, 24 Hun 545. (Just. P.) 167. Butler V. Boston and Albany B. B. Co., 24 Hun 99. (Trusts) 276. Butler V. Mann, 9 Abb. N. Cas. 49. (Bill» La.) 42, 43. Byrne v. New York Central, &c., B. B. Co.^ 83N. Y. 620. (Negl.)204. c. Cagwin v. Town of Hancock, 84 N. Y. 532 ; 22 Hun 201. ( Judgm't) 165 ; (Mun. Corp.) 198. Callmeyer v. Mayor, &c., of New York, 83 N. Y. 116. (Contracts) 59. Calyer v. Calyer, 4 Eedf. 305. (Courts) 76. Cameron v. Equitable Life Assurance Soc, 46 Superior 84. (App.) 11. Canady v. Krum, 83 N. Y. 67. (App.) 9 ; (Witn.) 289. Canfield v. Baltimore, &o., B. B. Co., 46 Su- perior '238. (App.) 10; (Evid.) 104; (Trial) 270. Caring *. Eichmond, 22 Hun 369. (Chat. M'tge) 50. Carletou v. Carleton, 23 Hun 251. (Process) 232. Carleton v. Darcy, 46 Superior 484. (Eject.) 96; (N. Y.)206; (Stat.) 260. Carley V. Potts, 24 Hun 571. (Eject.) 97. Caro V. Metropolitan, &c., E. E. Co., 46 Su- perior 138. (Const. L.) 54; (Injuno.) 141. Carpenter v. Boston, &c., E. E. Co., 24 Hun 104. (E. E. Co.) 240. Carpenter o. City of Cohoes, 81 N. Y. 21. (Evid.) 108; (Mun. Corp.) 199. Carpenter v. Le Count, 22 Hun 106. (Auc- tion) 33. Carpenter v. Manhattan Life Ins. Co., 22 Hun 47.- (Dam.) 81. Carpenter v. Manhattan Life Ins. Co., 22 Hun 49. (Set-off) 253, 254. Carpenter v. Shimer, 24 Hun 464. (Lim. of Ac.) 174. Carr v. Berdell, 22 Hun 130. (Eef.) 244. Carr v. Breese, 81 N. Y. 584. (Fraud. Cony.) 126. Carroll v. Davis, 9 Abb. N. Casi 60. (Witn.) 286. Case V. Osborn,.60 How. Pr. 187. (Interest) 159. Cassedy v. Wallace, 61 How. Pr. 240. (Par- tition) 217. Catlin V. Adirondack Co., 22 Hun 493. (Exec.) 110. Catlin V. Adirondack Co., 81 N. Y. 379. (New Tr.) 206. Center v. Finch, 22 Hun 146. (Infants) 139. Cas. 301. (Prom. N.) 234. Chadsey v. Guion, 46 Superior 118. (Ins.) 153. Chamberlain v. Spaigur, 22 Hun 437. (DeedsV 84. Chamberlain v. Woodward, 22 Hun 440. (Husb. & W.) 135. Chambers v. Appleton, 84 N. Y. 649. (Eef.) 244. Chapin v. Thompson, 23 Hun 12. (App.) 10 ; (Estop.) 101. Chapin v. Thompson, 80 N. Y. 275. (Eq.) 99. Chapman v. Fonda, 24 Hun 130. (Ex. & Ad.) 119. Chapman v. Nichols, 61 How. Pr. 275. (Wills) 248. Chappell, Matter of, 23 Hun 179. (Impris.) 137. CASES DIGESTED. 421 Chemical Nat. Bank v. Carpentier, 9 Abb. N. Cas. 301. (Prom. N.) 234. Chenango Bridge Co. v. Paige, 83 N. Y. 178. 230. Johnston v. Thompson, 23 Hun 90. (Evid.) 106. Johnston Harvesting Co. v. Meinhardt, 60' How. Pr. 168 ; 9 Abb. N. Cas. 393. (Injunc.) 141 ; (See. & Assoc.) 258. Jones V. Benedict, 83 N. Y. 79. (Dr. & Cr.> 82. Jones V. Butler, 23 Hun 367. (Partners.) 219. Jones V. Jones, 81 N. Y. 35. (App.) 14. Jones V. Kent, 80 N. Y. 585 ; 8 Abb. N. Cas.. 300. (Contracts) 59. Jones V. Merritt, 23 Hun 184. (Husb. & W.) 136. Jones V. Morgan, 24 Hun 372. (Bailm.) 34.. Jones V. New York Central, &c., R. E. Co., 22. Hun 284. (Mast. & S.) 182. Jones V. Piatt, 60 How. Pr. 73. (Arrest) 24. Jones c. Piatt, 60, How. Pr. 277. (Bills^ Partic.) 43. Jones V. Seligman, 81 N. Y. 190. (R. R. Co.) 237. Jordan v. Bowen, 46 Superior 355. (Evid.) 103 ; (Except's) 109 ; (Negl.) 203. Judson V. Dada, 79 N. Y. 373. (Mort.) 189.. K. Kain ■;;. Smith, 80 N. Y. 458. (E. R. Co.) 240; (Receivers) 243. Keck V. Werder, 46 Superior Sm. (Bank'cy) 35. Keeler v. Brooklyn Elevated E. E. Co., 9 Abb. N. Cas. 166. (Corp.) 68 ; (E. E. Co.) 238 ; (EeceivcTs) 243. Keller v. Strasburger, 23 Hun 625. (Sales) 250; (Trial) 270. Keller v. Stuck, 4 Eedf. 294. (Evid.) 103 ; (Ex. & Ad.) 116. Kelley D. Weber, 9 Abb. N. Cas. 62. (Depos.> 87. Kellogg V. Clark, 23 Hun 393. (Contracts) 58 ; (Ex. & Ad.) 116. Kellogg V. New York Central, &c., E. E. Co., 79 N. Y. 72. (Horn.) 133. Kelly V. Christal, 81 N. Y. 719. (Eq.) 98. Kelly V. New York, &c., E. E. Co., 81 N.JY. 233. (Costs) 70. Kelly V. Sheehy, 60 How. Pr. 439. (Fore. Ent.) 124. 430 CASES DIGESTED. . Kelly V. West, 80 N. Y. 139. (Ex. & Ad.) 113, 120. Kelsey v. Darrow, 22 Hun 125. (Arbitr.) 20. Kemp V. DickinaoD, 22 Hun 593. (Depos.) 87. Kennedy v. Kennedy, 60 How. Pr. 151. (Di- vorce) 92. Kennedy v. Nat. Union Bank of Watertown, 23 Hun 494. (Chat. M'tge) 51 ; (Partners.) 219. Kenney v. Wallace, 24 Hun 478. (Deeds) 84 ; Qning Co., 24 Hun 360. (Corp.) 64. Mansfield v. Beard, 82 N. Y. 60. (Contracts) 61. Maples V. Maokey, 22 Hun 228. ( Judgm't) 161. Marie v. Garrison, 83 N. Y. 14 ; 45 Superior 158. (Contracts) 57 ; (Plead.) 225. Mark v. Nat. Fire Ins. Co., 24 Hun 565. (Ins.) 149, 150, 155. Marsh, Matter of, 83 N. Y. 431 ; 21 Hun 582. (N. Y.) 208. Marsh v. Avery, 81 N. Y. 29. (App.) 19 ; (Ex. & Ad.) 118. Marsh v. West, &c., Manuf. Co., 46 Superior 8. (Abate.) 1; (App.) 11; (Plead.) 225. Marshuetz v. McGreevy, 23 Han 408. (Sales) 250. Marston v. Hebert, 60 How. Pr. 490. (Costs) 73. Marston v. Swett, 82 N. Y. 526. (Patents) 221 . Martin v. Sector, 24 Hun 27. (Evid.) 107. Martinhofif, Matter of, 4 Eedf. 305. (Courts) 76. Martinhoff v. Martinhoff, 81 N. Y. 641. (App.) 19. Marx V. McGlynn, 4 Eedf. 455. (Courts) 76 ; (Wills) 284, 285. Masten v. Olcott, 24 Hun 587 ; 60 How. Pr. 105. (Judgm't) 163; (Just. P.) 167. Masten v. Webb, 24 Hun 90 ; 60 How. Pr. 302. (SheriflEs) 255. Masterson v. New York Central, &c., E. E. Co., 84 N. Y. 247. (Negl.) 204; (E. E. Co.) 238. Matteson v. Moulton, 79 N. Y. 627. (Bills- Exch.) 41 ; (Defin.) 86. Mauger, Matter of, 23 Hun 658. (N. Y.) 210. Maxwell v. Pratt, 24 Hun 448. (Plead.) 224 ; (Ten. in C.) 265. May V. Cooper, 24 Hun 7. (Exec.) 109. May V. Moore, 24 Hun 351. (Eef.) 244. Mayer v. People, 80 N. Y. 364. (False Pret.) 122; (Witn.) 290. Mayer v. Eothschield, 59 How. Pr. 510. (Ar- rest) 24. Mayor, &c., of New York v. Furgueson, 23 Hun 594. (Const. L.) 54. Mead v. Jenkins, 4 Eedf. 369. (Ex. & Ad.) 117. Meeker v. Meeker, 4 Eedf. 29. (Leg.) 171 ;. (Wills) 284. Melcher v. Fisk, 4 Eedf. 22. (Exec.) 109. Merceron v. Fowler, 46 Superior 351. (Costs) 74. Merchants' Nat. Bank v. Hall, 83 N. Y. 338. (Assign.) 25; (Evid.) 103. Merriam, Matter of, 84 N. Y. 596. (Mun. Corp.) 196 ; (N. Y.) 208, 210. Merriam sj.Wolcott, 61 How. Pr. 377. (Husb. & W.) 134 ; (Leg.) 172 ; (Wills) 283, 284. Merrill v. Farmers' Loan and Trust Co., 24 Hun 297. (Bonds) 44; (Trusts) 275. Merritt v. Abendroth, 24 Hun 218. (Devise) 90. CASES DIGESTED. 433 Metropolitan Gas Light Co., Matter of, 23 Hun 327. (N. Y.) 207. Meyer v. Amidon, 23 Hun 553. (Fraud) 125 ■ (Q. o?L. &F.)235. Meyer v. Press Publishing Co., 46 Superior 127. (Dam.) 81 ; (New Tr.) 205. Miaghan v. Hartford Fire Ins. Co., 24 Hun 58. (Ins.) 148, 154, 155. Middaugh v. City of Elmira, 23 Hun 79. (Interest) 159. Middletown, Village of, Matter of, 82 N. Y. 196. (Const. L.) 54; (Em. Dom.) 97, 98; (Stat.) 260. Milks V. Eich, 80 N. Y. 269. (Guar.) 128. Miller, Matter of, 24 Hun 637. (Mun. Corp.) 197. Miller, Matter of, 4 Eedf. 302. (Ex. & Ad.) 118. Miller v. Hannibal, &c., E. E. Co., 24 Hun 607. (BUlfl of La.) 42. Miller v. Kent, 60 How Pr. 388 ; 24 Hun 657. (BiUs Partic.) 43. Miller v. Kent, 60 How. Pr. 451. (Eem. of C.) 246, 247. Miller v. Leyy, 46 Superior 207. (Exec.) Ill ; (Partition) 217. Miller n. McCloskey, 9 Abb. N. Cas. 303 (Negl.) 204. Miller v. McCloskey, 1 Civ. Pro. 252; 9 Abb. N. Cas. 303 . (Plead.) 224, 226. Miller v. People, 21 Hun 443. (Larceny) 170. Mills V. Hildreth, 81 N. Y. 91. (App.) 9 ; (BaU) 34. Minick u. City of Troy, 83 N. Y. 514; 19 Hun 253. (Except's) 108 ; (Mun. Corp.) 201 ; (Kepi.) 205. Mitchell V. Barnes, 22 Hun 194. (Eeceivers) 243. Mitchell V. Eead, 84 N. Y. 556. (Partners.) 219, 220. Moffat, Matter of, 24 Hun 325. (Trusts) 275. -Mojarrietta v. Saenz, 80 N. Y. 547. (At- tach.) 29, 30. • Moloughney v. Hegeman, 9 Abb. N. Cas. 403. (Auction) 33. Monarque v. Monarque, 80 N. Y. 320 ; 8 Abb. N; Cas. 102. (Partition) 218 ; (Wills) 284. 2e Montfort v. Montfort, 24 Hun 120. fLeel 172. ^ ^'' More V. Deyoe, 22 Hun 208. (Abate.) 2- (Const. L.) 55 ; (Eject.) 96 ; (Witn.) 288. Morgan v. Von Kohnstamm, 60How.Pr 161 (Exec.) 111. Morrell v. Peck, 24 Hun 37. (Negl.) 203. Moser v. Mayor, &c., of New York, 21 Hun 163. (App.) 11. Mott V. Havana Nat. Bank, 22 Hun 354. (Chat. M'tge) 51 ; (Prom. N.) 233, 234. Mover v. Moyer, 21 Hun 67. (Spec. Perf.) 259. ' Muldoon V. BlackweU, 84 N. Y. 646. (App.) Mumford v. Eochester, 4 Eedf. 451. (Wills) 284. Mumper v. Eushmore, 79 N. Y. 19. (Ast sign'ts) 27 ; (Sheriffs) 255. Mundy, Matter of, v. Excise Comm'rs of New York, 9 Abb. N. Cas. 117. (Stat.) 261. Murphy, Matter of, 60 How. Pr. 258. (State) 260. Murphy, Matter of, 24 Hun 592. (Ins.) 158. Murphy V. Carpenter, 22 Hun 15. (Husb. & W.) 136. Murphy v. Moore, 23 Hun 95. (Cred. S.) 78. Murphy v. Norton, 61 How. Pr. 197. (Eeal Prop.) 242. Murphy v. Travers, 60 How. Pr. 301. (Costs) 72. Murray v. Jibson, 22 Hun 386. ( Atfy & CI.) 32. Murray v. New York Life Ins. Co., 9 Abb. N. Cas. 3i)9. (App.) 17 ; (Evid.) 104; (Ins.) 154; (Trial) 269. Murry v. Hutchinson, 8 Abb. N; Cas. 423. (Mech. Lien) 184. Musgrave v. Sherwood, 23 Hun 669 ; 60 How. Pr. 339. (Vend. & P.) 279. Musgrave v. Sherwood, 23 Hun 674 n. (CoVts) 77 ; (Easem.) 95. Mut. Life Ins. Co. v. Bigler, 79 N. Y. 568. (Mort.) 192. Mut. Life Ins. Co. v. Hunt, 79 N. Y. 541 ; 14 Hun 169. (Ins. Pers.) 144. Mut. Life Ins. Co. v. Smith, 23 Hun 535. (Contracts) 57 ; (Mort.) 187. 434 CASES DIGESTED. N. Naah V. Weaver, 23 Hun 513. (Chat. M'tg'e) 60. Nat. Bank of Auburn v. Lewis, 81 N. Y. 15. (Courts) 75 ; (Usury) 278. Nat. Bank of Gloversville v. Wells, 79 N. Y. 498. (Banks) 37 ; (Pay't) 222. Nat. Bank of Newburgh v. Bigler, 83 N. Y. 61. (Gov'ts) 77 ; (Dr. & Cr.) 82; (Mort.) 187;; (Partners.) 220 ; .(Pr. & S.) 231. Nat. Mechanics' Banking Assoc, v. Conklin, 61 How. Pr. 76 ; 24 Hun 496. (Banks) 39. Nat. Shoe and Leather Bank v. Herz, 24 Hun 260. (Partners.) 220. Naugatuck Cutlery Co. v. Babcock, 22 Hun 481. (App.) 10; (Evid.) 104; (Sales) 251; (Tender) 266. Nebenzahl v. Townsend, 61 How. Pr. 353. (Action) 4 ; (False Imp.) 121 ; (Mai. Pros.) 177. Neiheisel v. Toerge, 4 Kedf. 328. (Wills) 281, 285; (Witn.) 288. Neilly v. Neilly, 23 Hun 651. (Ex. & Ad.) 119. Nellis V. Munson, 24 Hun 575. (Easem.) 95. Nelson v. Burrows, 9 Abb. N. Cas. 280. (Corp.) 65. Neuberger v. Webb, 24 Hun 347. (Plead.) 226. Neudecker v. Kohlberg, 81 N. Y. 296. (Amend.) 7; (Consp.) 53; (Evid.) 107; (Judgm't) 161. Neugent v. Swan, 61 How. Pr. 40. (Injunc.) 143. Newberry v. Wall, 84 N. Y. 576. (Sales) 249, 251. Newhall v. Appleton, 46 Superior 6. (Jurisd.) 166; (New Tr.) 206. Newton v. Eussell, 24 Hun 40. (Injunc.) 144. New York Express Co., Matter of, 23 Hun 615. (Stat.) 261. New York Prot. Epis. Pub. School, Matter of, 24 Hun 367. (Costs) 71. New York Prot. Epis. Pub. School, Matter of, 82 N. Y. 606. (App.) 14. Nichols, Matter of, 4 Kedf. 208. (Acct'g) 3 . (Exec.) 109. Nichols V. People, 23 Hun 165. (Hom.) 133. Nickerson v. Euger, 84 N. Y. 675. (Prom. N.) 234. Nicolay v. Unger, 80 N. Y. 54. (Bonds) 44. Norton v. Bennett, 22 Hun 604. (Costs) 72. Nye V. Northern Central K'y Co., 24 Hun 556. (Eem. of C.) 246, 247. o. O'Brien v. New York Central, &c., E. E. Co., 80 N. Y. 236. (E. E. Co.) 238. O'Dougherty v. Eemington Paper Co., 81 N. Y. 496. (Judgm't) 163. O'Keefe v. Shipherd, 23 Hun 171. (Costs) 73. One Hundred and Thirty-eighth Street, Mat- ter of, 60 How. Pr. 290. (Const. L.) 54; (Defin.)86; (N. Y.) 209. One Hundred and Thirty-eighth and Other Streets, Matter of, 61 How. Pr. 284. (App.) 14. Ontario Bank of Ontario v. Hanlon, 23 Hun 283. (Bills of La.) 42. Ormes v. Dauohy, 82 N. Y. 443. (App.) 10 ; (Contracts) 59 ; (Except's) 108. Ormiston v. Olcott, 22 Hun 270. (Trusts) 275. Ormiston v. Olcott, 84 N. Y. 339. (Ex. & Ad.) 114, 115. Osbom V. Schenck, 83 N. Y. 201. (Ten. in C.)265; (Trover) 273. Osborne v. McAIpin, 4 Eedf. 1. (Accf g) 3 ; (Ex. & Ad.) 118; (Leg.) 171. O'Sullivan v. Connors, 22 Hun 137. (App.) 10. Otis V. Dodd, 24 Hun 538. (Mech. Lien.) 183. CASES DIGESTED. 435 P. Pacific Pneumatic Gas Co. v. Wheelook, 80 N. Y. 278. (Evid.) 103, 108. Painton o. Northern Central E'y Co., 83 N. Y. 7. ' (App.) 10; (Evid.) 104; (Negl.) 202. Pakalinsky v. New York Central, &o., R. E. Co., 82 N. Y. 424. (E. R. Co.) 240. Palmer v. Horn, 84 N. Y. 516. (Wills) 284. Palmer ii. Phoenix Ins. Co., 22 Hun 224. (Judgm't) 161. Palmer v. Phoenix Mut. Life Ins. Co., 84 N. Y. 63. (Ins.) 153, 156. Palmer v. Purdy, 83 N. Y. 144. (Dr. & Cr.) 8^; (Land. &T.) 169. Panzerbeiter v. Waydell, 21 Hun 161. (Con- tracts) 57. Pardee v. Tilton, 83 N. Y. 623. (App.) 15. Pardee v. Treat, 82 N. Y. 385. (Mort.) 187, 188. Park V. Park, 80 N. Y. 156. (App.) 17 ; (Divorce) 94. Parker v. Bradley, 46 Superior 244. (Sheriffs) 255. Parson v. Rhodes, 22 Huii 80. (Trusts) 274. Parsons v. Belden, 9 Abb. N. Cas. 54. (Depos.) 89. Pattison v. O'Connor, 23 Hun 307 ; 60 How. Pr. 141. (App.) 11 ; (Plead.) 225. Pattisson v. Syracuse Nat. Bank, 80 N. Y. 82. (Banks) 37 ; (Defin.) 86. Payn v. Grant, 23 Hun 134. (Mort.) 193. Payne v. Decker, 22 Hun 29. (Dower) 94. Payne v. Troy, &c., E. E. Co., 83 N. Y. 572. (Negl.) 203; (Q. of L. F.) 235. Peck V. Lombard, 22 Hun 63. (Arrest) 23. Peck V. New Jersey, &c., E'y Co., 22 Hun 129. (Mort;) 193. Peck V. Peck, 60 How. Pr. 206 ; 8 Abb. N. Cas. 400. (Divorce) 92. Peck V. Peck, 23 Hun 313. (Courts) 76. Peckham v. Van Wagenen, 83 N. Y. 40 (Corp.) 65. People V. Beman, 22 Hun 283. (Cert.) 49. People V. Briggs, 60 How. Pr. 17. (Indict.) 139; (Witn.) 287. People V. Bruff, 60 How. Pr. 1 ; 9 Abb. N. Cas. 153. (Corp.) 68. People V. Central Crosstown E. E. Co., 21 Hun 476. (App.) 11 ; (Prac.) 228. People V. Cox, 23 Hun 269. (Bills Partic.) 43. People V. Crowley, 23 Hun 412. (Grim. L.) 79. People V. Denniaon, 84 N. Y. 272. (Action) 4; (Fraud) 125; (Set-off) 254; (State) 260. People V. Doty, 80 N. Y. 225. (Banks) 36 ; (Defin.) §5. People V. Dowling, 84 N. Y. 478. (Indict.) 138; (Judgm't) 164: (Larceny) 170; (Witn.) 287. , People V. Globe Mut. Life Ins. Co., 60 How. Pr. 57. (Ins.) 156. People V. Globe Mut. Life Ins. Co., 60 How. Pr. 82. (Action) 4; (Ins.) 156; (Receivers) 243. People V. Greenfield, 23 Hun 454. (Hom.) • 132, 133 ; (Trial) 273 ; (Witn.) 289, 291. People V. Groat, 22 Hun 164. (Liq. Sell.) 176. , People V. Long Island R! R. Co., 9 Abb. N. Cas. 181 ; 60 How. Pr. 395. (B'klyn) 46 ; (Const. L.) 54 ; (Contracts) 59 ; (Corp.) 67 ; (Cov'ts) 77 ; (Nuisance) 216 ; (Em. Dom.) 98 ; (R. E. Co ) 236 ; (Stat.) 260. People V. McGinty, 24 Hun 62. (Eobbery) 248. People V. Macy, 22 Hun 577. (N. Y.) 206. People V. Manhattan E. E. Co., 9 Abb. N. Cas. 448. (App.) 12 ; (Plead.) 227 ; (Mand.) 177. People V. Moett, 23 Hun 60. (Hom.) 133 ; (Trial) 272, 273. People V. Nat. Fire Ins. Co., 61 How. Pr. 342. (Taxes) 262. People V. Nat. Trust Co. of New York, 82 N. Y. 283. (Corp.) 69. People V. Newburgh, &c.. Plank Road Co., 23 Hun 173. (Piankroads) 223. People V. New York, &c., R. E. Co., 84 N. Y. 565 ; 22 Hun 95. (State) 259. People u. O'Eeilly, 9 Abb. N. Caa. 77; 3 Crim. L. Mag. 85 ; 61 How. Pr. 3. (Affid.) 6 ; (Error) 100; (Perj.) 222. People V. Security Life, &c., Ins. Co., 23 Hun 596. (Costs) 73 ; Ins. 157. People V. Talcott, 21 Hun 591. (Prohib.) 233. People's Bank v. Bogart, 81 N. Y. 101 (Bills Exch.) 41 ; (Fraud) 125. People, ex rel. Aaronson,j). Scheel, 8 Abb. N. Cas. 342. (Mand.) 177. People, ex rel. Adams, v. Westbrook, 61 How. Pr. 138. (Courts) 76. People, ex rel. Attorney-General, v. Security Life Ins. Co., 79 N. Y. 267. (Ins.) 156. People, ex rel. Barnes, v. Angel, 61 How. Pr. 157. (Land. & T.) 168. People, ex rel. Bay State Shoe, &c., Co., v. Mc- Lean, 80 N. Y. 254. (Taxes) 263. 436 CASES DIGESTED. People, ex rel. Benedict, v. Supervisors of Oneida Co., 24 Hun 413. (Arbitr.) 20 ; (Coun- ties) 74. People, ex rel. Eurnet, v. Jackson, 23 Hun 568 ; 50 How. Pr. 330. (Mand.) 178 ; (Schools) 252. People, ex rel. Bush, v. Thornton, 60 How. Pr. 457. (Elect.) 97. Pee.ple, ex rel. Campbell, v. Campbell, 82 N. Y. 247. (App.) 18 ; (N. Y.) 211, 213. People, ex rel. Christern, v. Walsh, 9 Abb. N. Cas. 465. (Elect.) 97. People, ex rel. Chrome Steele Co., v. Paulding, 22 Hun 91. (Land. & T.) 169. People, ex rel. Comaford, v. Dutcher, 83 N. Y. 240; 20 Hun 241. (Courts) 77. People, ex rel. Comm'rs of Public Charities, &c., V. Bartholf,, 24 'Hun 272. (Hnsb. & W.) 135; (Witn.) 287. People, ex rel. Coppers, v. Trustees of St. Pat- rick's Cathedral, 21 Hun 184 ; 7 Abb. N. Cas. 121 ; 58 How. Pr. 55. (Burial) 47. People, ex rel. Dailey, v. Livingston, 79 N. Y. 279. (B'klyn) 45 ; (Excepfs) 108. People, ex rel. Dailey, v. Livingston, 80 N. Y. 66. (App.) 18. People, ex rel. Eckler, v. Clark, 23 Hun 374. (Crim. L.) 79. People, ex rel. Egan, v. Justices of Marine Court, 81 N. Y. 500 ; 8 Abb. N. Cas. 377 ; 59 How. Pr. 413. (Abate.) 2. People, ex rel. Emerick, v. Fire Comm'rs of New York, 23 Hun 317. (N. Y.) 213. People, ex rel. Evans, v. Comm'rs of Public Parks, 60 How. Pr. 130. (N. Y.) 211. People, ex rel. Fitzsimmons, v. Jourdan, 1 av. Pro. 328. (Cert.) 49. People, ex rel. Flaherty, ». Neilson, 22 Hun 1. (Cert.) 49, 50; (Error) 100. People, ex rel. Flynn, v. Butler, 61 How. Pr. 274. (Mech. Lien) 184. People, ex rel. Funke, v. Board of Excise, 24 Hun 195. (Cert.) 49. People, ex rel. Geer, v. Common Council of Troy, 82 N. Y. 575. (App.) 18. People, ex rel. Gilhooly, v. Police Comm'rs ofNew York, 23Huu851. (N. Y.) 212. People, ex rel. Gilmore, v. Callahan, 23 Hun 581 ; 60 How. Pr. 373. (Evid.) 103. People, ex rel. Gilmore, v, Donahue, 22 Hun 470. (Contempt) 56. People, ex rel. Gould, v. Comm'rs of Excise, &c., 1 Civ. Pro. 244 ; 61 How. Pr. 514. (Pro- Mb.) 232. Pepple, ex rel. Haaae, v. German Hospital, 8 Abb. N. Cas. 332. (Mand.) 177. People, ex rel. Hambrecht, v. Campbell, 22 Hun 574. (Land. & T.) 169. People, ex rel. Hart, u. Fire Comm'rs of New York, 82 N. Y. 358. (Cert.) 49 ; (N. Y.) 212. People, ex rel. Hassell, v. Hoffman, 60 How. Pr. 325. (Stat.) 260. People, ex rel. Hatzel, v. Hall, 80 N. Y. 117. (N. Y.) 211 ; (Quo Warr.) 236, People, ex rel. Higgins, v. McAdam, 84 N. Y. 287 ; 60 How. Pr. 444; 22 Hun 559 ; 60 How. Pr. 139; 59, Id. 442. (Exec.) 109; (Land. & T.) 169. People, ex rel. Hustis, v. Green, 23 Hun 280. (Banks) 80. People, ex rel. Jourdan, ». Donohue, 84 N. Y. 438. (Extrad.) 120. ' People, ex rel. Kenyon, v. Sutherland, 81 N. Y. 1. (Insolv.) 144. People, ex rel. Kingslfey, v. Pratt, 22 Hun 300. (Arrest) 24. People, ex rel. Larrabee, v. MnlhoUand, 82 N. Y. 324. (Mun. Corp.) 201. People, ex rel. Manhattan Savings Inst., v. Otis, 24 Hun 519. (Const. L.) 54. People, ex rel. Mosher, v. Stowell, 9 Abb. N. Cas. 456. (Mun. Corp.) 199. People, ex rel. Murphy, v. French, 60 How. Pr. 377. (N. Y.) 212. People, ex rel. New York, &c., E. E. Co., v. Comm'rs of Taxes, 23 Hun 687. (Taxes) 262. People, ex rel. New York Elevated E. E. Co., V. Comm'rs of Taxes, 82 N. Y. 459 ; 19 Hun 460. (Taxes) 263. People, ex rel. O'Donnell, v. McNulty, 59 How. Pr. 500 ; 9 Abb. N. Cas. 468. (Citizens) 52. People, ex rel. Ohlen, v. New York, Lake Erie, &c., E. E. Co., 22 Hun 533. (Dam.) 80 ;. (Mand.) 177. People, ex rel. Parmenter, v. Wadsworth, 61 How. Pr. 57. (Eef.) 244. People, ex rel. Phelps, v. Oyer and Terminer, 83 N. Y. 436. (Error) 100; (False Pret.) 121, 122 ; (Trial) 272 ; (Witn.) 290. People, ex rel. Eoberts, v. Bowe, 81 N. Y. 43 ; 8 Abb. N. Cas. 234. (Arrest) 22. People, ex rel. Eyan, v. French, 24 Hun 263. (N. Y.) 212. People, ex rel. Sears, v. Board of Assessors of Brooklyn, 84 N. Y. 610. (Taxes) 263. People, ex rel. Sisco, v. Comm'rs of Pilots, 23- Hun 603. (Shipp.) 256. People, ex rel. Smith, v. Cooper, 22 Hun 515. (Cert.) 49. People, ex rel. Stevens, v. Police Commis- sioners, 24 Hun 284. (Cert.) 49. People, ex rel. Thurman, v. Eyan, 61 How. Pr. 452. (Taxes) 264. People, ex rel. Thurston, o. Town Auditors of Elmiia, 82 N.Y. 80; 20 Hun 150. (Towns). 266. CASES DIGESTED. 437 People, ex rel. Ulster, &c., B. E. Co., v. Smith, 24 Hun 66. (Mun. Corp.) 197. ' People, ex rel. Vandervoort, v. Cooper, 24 Hun 337. (Mand.) 178. People, ex rel. Van Nest, v. Comm'rs of Taxes, 80 N. Y. 573. /(Taxes) 264. People, ex rel. Vogler, v. Walsh, 22 Hun 139. (Taxes) 264. People, ex rel. Waldman, v. Police Commis- fiioners of New York, 82 N. Y: 506. (App.) 14; (Cert.) 49. People, ex rel. Watkins, v. Perley, 80 N. Y. «24. (Elect.) 97. People, ex rel. Weekes, v. Supervisors of 4Jueens Co., 82 N. Y. 275 ; 18 Hun 4. (Taxes) 264. People, ex rel. Westray, v. Mayor, &c., of New York, 82 N. Y. 491 ; 16 Hun 509. (N. Y.) 211. Perry v. Bound Lake Camp Meeting Assoc, 22 Hun 293. (App.) 19 ; (Just. P.) 167. Peters v. Porter, 60 How. Pr. 422. (Wills) 283. Peyser v. Wendt, 84 N. Y. 642. (App.) 16. Philadelphia, &o., Coal and Iron Co. ».Hotch- kiss, 82 N. Y. 471. (Manuf. Co.) 180. Philbrook v. Kellogg, 21 Hun 238. (Exec.) 110. Philson I). Moore, 23 Hun 152. (Devise) 90 ; warranto, 236. proceedings to contest will, 285. vacate assessments, 196. Burglary 47 Burial 47 By-laws. of municipal corporations, 196. New York city, 206. savings banks, 40. Calendar. on appeal to Court of Appeals, 16. of causes ready for trial, 269. CaUs. on corporate stock, 65. GamUs. liability of carrier on, 48. QmceUation. of judgments, after discharge in bank- ruptcy, 35. contracts, jurisdiction of equity, 99. Capital stock. See Stock. Carriers, 48 bills of lading, 42. burden of proof in actions against, 104. measure of damages in actions against, 80, ferries, 122. railroad companies, 236. connecting lines, 241. carriers by sea, 256. Case. on appeal, 12, 16. Cases affirmed, reversed, &c 295 obligation of railroad company to main- tain, 237. Cav^ea of actum. generally, 4. what survive, 2. joinder of, 4. splitting or severing, 4. election between, 4. what are assignable, 25. of assignee, 25. statement of, in pleading, 223. of principal, on contract made by agent, 229. receiver, 69, 111. highway commissioners, 131. Caveat emptor. in sales of chattels, generally, 250. land, 279. Cemeteries. rights of applicant for lot, 47. Certificate. of naturklization, 52. acknowledgment of deeds, 84. effect of official, as evidence, 108. of stock, 64. Certiorari. I. In Civil Actions, genbbally 49 452 CERTIORAEI— COMMISSIONERS. Certiorari, (continued.) n. In Cbiminal Cases 49 to review assessment for local improve- ments, 197. to review dispossess proceedings, 169. in contempt proceedings, 56. Oestui que trust. rights of, generally, 277. OhaUenge, to jurors, 271. peremptory, 272. CharoAiter. of deceased, evidence of in murder cases, 133. evidence of, to impeach witness, 288. (Marge. ^ upon land devised, for legacies, mainte- nance, &c., 172. of crime, when actionable, per se, 257. in indictment, 138. upon wife's separate estate, 135. Charities. validity of legacies for, 172. Oha/rter. of savings bank, 39. corporations, generally, 64. railroad, 237. Chattel mortgages. I. What mat be Mortgaged, and V7HAT Debts Secubed 50 II. Bights or THE Parties 50 III. Eights op Creditors, and Pur- chasers IN Good Faith 51 by manufacturing company, 178. Chattels. levy of executions on, 109. sales of, on execution, 109. judgment in action for, 161. seller's action for price of, 250. Checks 51 on bankers, 38. forged, 38. receiving in payment, 82. ^ ChUd. See Parent and Child, "children" defined, 85. cruelty to, 79. domicile of, 94. contributory negligence of, 204. liability for torts of, 216. descent to illegitimate, 90. Cireumstanlial evidence. sufficiency of, generally, 103. Citizens 52 naturalization, 52. wife of citizen, a citizen, 52. CivU rights. trial by jury, 268. Claim and delivery. See Eeplevin Clcr&s. adjustment of costs by, 73. power to enter judgment, 161. Client. power of attorney to bind, 32. • dealings between attorney and, 31. Cloud on title 52 Code of civil procedure. inspection of books and papers under, 91. continuance of actions under, 1. amendments in actions under, 7. arrests in actions under, 21, et acq. costs in actions under, 70. taxation of costs under, 73. recovering possession of land under, 96, action of interpleader under, 159. bringing in new parties under, 217. actions for partition under, 217. rules of pleading under, 223, et seq. amendment of pleadings under, 226. issuing process under, 231. service of process under, 232. reference in actions under, 244. set-off in actions under, 252. stay of proceedings in^actions under, 261. competency of parties as witnesses under, 286. of husband and wife, 287. Cohoes. local decisions relative to, 199. Collateral security. effect of, and rights of holder, 35. CoUectiort. by bank, 38. of costs, 73. assets, by personal representatives, 114. guaranty of, 128. of city taxes, 47. state taxes, 263. Collector. of decedent's estate, 114. general taxes, 264. Collision. liability of vessel for, 256. Color of title. necessity of, to constitute adverse posses- sion, 5. regulations of, 54. of auctioneer, 33. taking depositions by, 87. of personal representatives, 118. trustees, 275. brokers, 229. receivers, 243. Commissioners. of highways, duties respecting bridges, 132. their powers and liabilities, generally, 131. COMMISSIONERS— CONSIDERATION. 453 Commissioners, (continued.) in lunacy, 144. of assessment, in local improvement pro- ceedings, 196. in town bonding proceedings, 197. proceedings to condemn lands, 98. of public works in New York city, 213. of lunatic, 144. habitual drunkard, 131. Omimitment. under StUwell act, 21. for contempt, 56. dommon carriers. See Cabribes. ■Common Pleas. in city and county of New York, 18. appeals to, from Marine Court, 18. CommiM nimor. admissibility of, 104. dammon schools. See Schools. of assignee for creditors, 27. attorneys, 32. for lands taken for public use, 98. improvements in ejectment, 97. of personal representatives, 118. right of servant to, 181. of municipal officers, 199. for lands taken for local improvements, 209. of officers and clerks, liability of city for, 199. brokers, 229. receivers, 243. sheriffs, 254. trustees, 275. Cmvpetmcy. See Witnesses. of wife, as witness, 40. domplainl. amendment of, 7. sufficiency of, to obtain order of arrest, 22, 23. in action for limited divorce, 93. Ubel, 173. trover, 273. by or against personal representa- tives, 119. on insurance policy, 154. to enforce judgment, 165. creditor's suit, 78. foreclosure, 191. actions, generally, 223. for negligence, 202 claim and delivery, 247. actions on promissory notes, 234. slander, 257. actions for infringement of trademark, 268. dismissal of, on trial, 270. ComposiUon. in bankruptcy, 36. requisites and validity of deeds of, 82. -effect of fraud, 82. Compromise. by assignee for creditors, 26. client, effect of on rights of attorney, 32. of disputed claims, effect of, 82. Computation. of costs on appeal, 71. extra allowance, 73. dower, 94. damages, 80. on dissolving injunction, 143. interest, 159. compensation for lands taken, 98. executor's commissions, 118. value of annuity bonds, 156. ConceaJiment. when amounts to fraud, 125. avoids guaranty, 129. in insurance law, 147. of bill of lading, 42. election between causes of action, 4. commissioners' report in proceedings to condemn lands to public use, 98. sheriff's deed, 109. letters of administration, 113. judgments, 162, eJ seq. foreign judgments, 75. referee's report, 245. Conemrent jurisdiction. of state and federal courts, 75. CondUions. precedent and subsequent, 58. subscriptions for stock on, 66. in insurance policy, generally, 145, 155. fire policy, 146. life policy, 150. lease, 170. sales on, 249. legacies on, 172. Confessiorn. admissibility of, as evidence in criminal cases, 106, 133. Confirmation. of assessments for local improvements, 209. report of referee, 245. in divorce, 92. Confiscation acts. proceedings under, 280. Conflicting claims. to corporate stock, 64. Consideration. of negotiable bond, 44. contracts, generally, 57. restoration of, on rescission of contract, 62, 251. 454 CONSIDERATION— CONVEESION. OormderaMon, (continued. interpretation of clause respecting, 84. what defects in, render conveyance fraudu- lent, 126. of mortgage, 187. promissory note, 233. Consolidation. of telegraph companies, 265. Conspiracy 53 Oomtilution. of the state, 54. Constitutional law 54 interpretation of "due process of law," 85. relating to County Courts, 75. regulating exercise of eminent domain, 97. statutes relative to railroads, 236. constitutionality of statutes, generally, 260. relating to city of Buffalo, 46. OonatrueUon. See iNTEBPBETATioif. Constructive notice. of existence of mortgage, 189. equities between original parties to note, 233. when purchaser of land charged with, 279. Contempt of court 55 attorneys, when punishable for, 31. enforcing payment of alimony, 93. review of proceedings for, 14. in injunction cases^ il43. Qmtinumice. of action after death of party, 2. injunction, 143. Contracts. I. GENERAii Pbinciples 57 U. CONSIDEBATION 57 in. Eequibements op the Statute OF Fbauds 57 rV. Inteepbbtation and Effect. Conditions 58 V. Vaudity 59 IV. Peefoemance. Beeach 60 VII. Modification 62 VIII. Eescission 62 IX. Law OF Place 62 ' X. Actions for Bbbach of Con- teact 62 what actions are founded on contract, 4. effect of alterations on validity of, 7. for compensation of attorneys, 32. of bailment, 34. power of banks to make, 37, et seq. respecting boundaries, 45. bridges, 45. power of corporations to make, 67. personal representatives to make, 113, 114. costs in actions on, 70. covenants in, 77. Contracts, (continued.) proof of usage to control, 80. measure of damages in actions on, 80. cancellation o^ in equity, 99. burden of proof in actions on, 104. parol evidence to vary, 104. of guaranty, 127. when within statute of frauds, 128. by guardian of infant, 130. habitual drunkards, 131. highway commissioners, 131. of marriage, 134. implied, defined, 85. by wife, liability of husband on, 134. wife's disability to make, 135. by wife, under enabling acts, 136. enjoining enforcement of, 140. liability of insane persons on, 144. of insurance, 145, et seq. interest on, 158. action on, when barred by lapse of time, 175. when statute of limitations begins to run on, 175. relief against mistakes in, 185, 186. power of cities to make, 196, 206. when work on local improvement must be done by, 208. liability of cities upon, 197, 214. between master and servant, 181. power of partner to bind firm by, 219. respecting patent-rights, 221. what bind agent, personally, 229. what bind principal, 229. of suretyship, 230. between connecting lines, 241. what is a sale, 249. by school district, 251. implied, for services rendered, 252. for towage, 256. specific performance of, 259. , constitutionality of statutes impairing obli- gation of, 54. when void for usury, 278. for sale of land, 279. Oontrihution. in general average, 153. among co-sureties, 230. Contributive negligence. law of, generally, 203. of passenger, 239. person crossing railroad track, 240. jurisdiction as dependent on amount in, 13. right to remove cause as dependent oa amount in, 247. Conversion. what amounts to, 265. CONVERSION— CRIMINAL LAW. 455 Conversion, (continued.) by bailee, 35. tenants in common, 265. equitable, 284. what will create easement, 95. are fraudulent, 126. with intent to defraud creditors, prosecu- tion for, 78. under married women's acts, 135. by, or to husband and wife, 136. liability of insane persons on, 144. of mill property, 185. Conviction. of principal, as evidence against accessory, 78. when proper, 273. efiFect of, on competency of witness, 287. credibility, proof of, to im- peach witness, 288. CorpDrations. I. How Cbbated ; Incobporation ; Okqanization ; Chabteks 64 II. CoBPORATE Stock 64 III. Eights and Li-ibilities of Stockholders 65 iv. cobpobate powebs _ 67 V. CoBPOEATB Liabilities 67 VI. Officers AND Agents 67 Vn. DisscLTTTioN, Keceiver, &c 68 VHI. Foreign CoBPOEATioNs 69 abatement of suits against, 1. continuance of suits against, 2. estoppels in respect to, 101. banks, 36. savings banks, 39. legacies to, 172. presumptions in favor of acts of, 103. books of, as evidence, 108. insurance companies, 155, et seq, mandamus to, 177. menufacturing companies, 178. municipal, 196. taxation of, 262. telegraph companies, 265. Costs. I. In Original Civil Suits 70 II. On Appeal OB Error 71 III. Security FOB Costs 72 IV. Allowance IN ADDITION TO Costs, 72 V. Taxation AND Collection 73 review of allowance of, 14. attorneys, when liable for, 31. agreements with attorneys respecting, 32. lien of attorney for, 32. on certiorari, 49. power of surrogate to grant, 76. execution against the person for, 110. when allowed to executors, 118. Costs, (continued.) in supplementary proceedings. 111. actions by personal representatives, 119. on dissolution of injunction, 143. in suits against cities, 197. Counsel fees. when allowed in divorce cases, 93. to executors, 118. Cownter-affidavits. on motion to vacate attachment, 30. Counter-daim. See Set-off. defined, 85. in suit by the state, 259. withdrawal of, 270. Counties 74. when indictments should be found, 138. Comity court. appeals from; 19. jurisdiction and powers of, 75. County treasurer. powers and compensation of, 74. Coupons. \ rights of holders, 44, 237. Court of Appeals. what is appealable to, 13, et seq. procedure in, 15, et seq. Courts. I. General Peinciples 75 II. Courts of General Civil Juris- diction 75 III. Surrogates' Courts 75 IV. Courts of Criminal Jurisdic- tion 77 suits in state courts by assignees in bank- ruptcy, 35. powers of, in respect to costs, 70. jurisdiction of, generally, 166. of justice of the peace, 166. ma/ndamus to inferior, 177. removal of causes from state court to United States Circuit Court, 246. Covenants 77 measure of damages in actions on, 80. of married woman, 135. in leases, 170. deed, to pay mortgage, 188. contract for sale of land, 279. disabilities of, 135. removal of disability of, 176. effect of, to suspend statute of limitations, 176. Creditor's suit 78 who may avoid chattel mortgage, 51. to reach property fraudulently conveyed, 126. Criminal law. I. Genebal Principles of Criminal I/AW 78 456 CRIMINAL LAW— DEED. 79 Criminal law, (continued.) II. Decisions Eblating to Paeticu- LAR Offences what is a criminal assault, 24. arrests for crime, 24. putting in bail, 34. review of proceedings by certiorari, 49. courts of criminal jurisdiction, 77. writ of error, 100. exceptions in criminal cases, 108. extradition, 120. what is a false pretence or token, 121. proceedings to compel support of wife, 135, doctrine of former adjudication, 164 indictments for crime, 138. what is murder, 132. robbery, 248. duties of railroad companies, relative to, 237, 240. ijrudty. to children, 79. as ground for limited divorce, 92. cruel and unusual punishments, 55. Curtesy 80 Custody. of child, 131. Custom : Usage 80 effect of, on delivery by carrier, 48. Damages. I. Geneeal Principles 80 II. Measure OF Damages 8d amount of, in actions on contract, 63. when costs depend on amount of, 70. for conspiracy, 53. in actions for causing death, 133. on covenants, 77. dissolution of injunction, 143. new trial for excessive, 205. inadequate, 205. for land taken for local improvements, 209. railroads, 237. breach of warranty in sales of goods, 250. in actions on guaranties, 129. insurance policies, 155. collision cases, 256. what recoverable in slander, 257. proof in mitigation of, 173, 257. what adjudged in specific performance, 259. in actions between vendor and purchaser of land, 279. Dams. right to erect, 248. relative rights of upper and lower proprie- tors, 185, 248. Date. of check, 51. Death. as ground of abatement, 1. continuance in case of, 2. of surety, liability of co-surety, 20. trustee, effect of, 277. presumptions relative to, 103. of insured, proof of, 152, civil action for causing, 133. Debtor and creditor. I. The Eelation, Generally Con- sidered 81 II. Payment and Discharge of Debts 82 III. Accord and Satisfaction, Com- promises, Extensions, &c 82 IV. Collateral Securities 82 v. Composition Deeds 82 right of debtor to prefer creditor, 26. conveyances void as against creditors, 126. rights of partnership creditors, 220. Debts. compromise of, by assignee for creditors, 26. individual liability of stockholder for, 66, 180. sale of lands for payment of, 116. what preferred in distribution of decedent's estate, 115. right to interest on, 158. taking a note in payment of, 233. Deceit. See Fraud. DectaratioTis. when raise estoppel in pais 102. part of res jaste, 104.^ against interest, effect of, as evidence, 105. admission of, in suits on insurance policies, 154. of agent, when bind principal, 155. deceased, in action for causing death, 133. Decree^ of surrogate, when appealable, 19. power to open, 76. in divorce cases, 92. foreclosure, 192, 193. partition, 218. Dedication 83 Deed. I. Common Law Kequirements 83 II. Acknowledgment. Eecobding.. 84 III. How Construed. Validity 84 what adverse possession will defeat, 5. when cloud on title, 52. covenants in, 77. implied covenants in, 77. cancellation of, 99. estoppel byj 101. parol evidence to vary, 104. admissibility of, in evidence, 107. DEED— DISCHARGE. 457 Deed, (continued.) of sheriflF, on execution, 109. married woman, under enabling acts, 1 37. infant's lands, 139. to married women, 136. when construed as mortgage, 187. to purchaser in foreclosure, 193. of trust, or creating trusts, 274. DefmiU. conclusiveness of judgment by, 163. Defences. setting up discharge in bankruptcy, 35. in actions on contracts, 62. proceedings for contempt, 56. actions to enforce individual liability of stockholders, 181. what may be set up by counter-claim, 253. in suits for divorce, 93. creditors' suits, 78. suits on administration bonds, 120. ejectment, 96. actions on guaranties, 128. murder cases, 132. actions under excise laws, 176. on insurance policies, 153. against corporate trustees, 180. to enforce judgments, 165. on trial for larceny, 170. in foreclosure, 191. what available to surety, 231. in suits on promissory notes, 234. against committee of lunatic, 144. frivolous and sham, 227. in actions for price of goods sold, 250. action for slander, 257. usury as a defence, 191, 278. Deficiency. on sale in foreclosure, judgment for, 193. liability of grantee for, 188. Definitions 84 " refusal " to accept bill, 41. " cruel and inhuman treatment," 92. Delay. liability of carrier for, 48. to sue principal, when discharges guaran- tor, or surety, 129, 231. effect of, to discharge indorser, 234. of bill of lading, effect to pass title, 42. by carrier, 48. of chattels mortgaged, 50. deeds, 83. gift, 127. what satisfies statute of frauds, 249. necessity and sufficiency of, in sales of chattels, 249. conditional, 249. Demand. of payment of draft, 41. necessity of, to set limitation running, 176 of possession before bringing ejectment, 96. payment of note, to hold indorser, 234. Demurrer, judgment on, 161. form and requisites of, generally, 225. costs on, 70. Deniah. form and sufficiency of, in answer, 224. in New York city, 211. Deposit. in bank, 37. savings bank, 40. "special," defined, 86. of money to remove lien, 184. general and special, 37. Depositions: I. De Bene Esse, and on Commission, 87 n. Examination of Pabties Befoke Tbial 88 Descent 89 to aliens, 7. DesaripUon. in deed, of premises conveyed, 84. of legatee, 171. Determinaivm of eonfiicting claims. to corporate stock, 64. Devise 90 to aliens, 7. Directors. of corporations, generally, 68. manufacturing companies, 178. liability of corporation for acts of, 67. rights and liabilities of, 68. Disahilities. of aliens, 7. coverture, 135, 176. habitual drunkards, 131. infants, 139. insane persons, 144. what suspend running of statute of limita- tions, 176. Disbursements.' what allowed as costs, 73. of personal representatives, when allowed, 118. Discharge. of surety on appeal bond, 20. from arrest, 22. of bail, 34. in bankruptcy, 35. composition proceedings, 36. of indorsers, 41, 234. liability on stock subscription, 65. from imprisonment on execution, 110, 137 458 DISCHAEGE— EQUITY. Discharge, (continued.) of debts, generally, 82. guarantor, 128. in insolvency, 145. of servant, 181. surety, 231. DiscontimumBe. of appeal, 10, 12. in justice's court, on plea of title, 167. matters of practice on, 228. by banks, 38. discovery and inspection 91 on examination before trial, 88. Discretiorn. review of, on appeal, 9, 14. error, 100. when costs are in, 70. on habeas corpus, as to custody of children, 131. Dismissal. of appeal, 18. Disorderly houses. prosecution for keeping, 79. Dispossession. of tenant, 169. Disqualification. of judge, 75. juror, 269, 271. surrogate, 77. referee, 116. Dissolution. of banking corporations, 59. corporations, generally, 68. injunctions, 142. insurance companies, 156. manufacturing companies, 181. partnership, 220. voluntary association, 258. Distribution 91 by assignee for creditors, 27. personal representatives, 116. receiver of insurance company, 156. payment of legacies in advance of, 172. Disturbing meetings. prosecution for, 79. Diversion. of trust fund by trustee, 276, 277. accommodation paper, 233 stream, remedy for, 280. Dividends. by telegraph companies, 265, on corporate stock, generally, 64. married woman's stock, 134. Divorce. I. Stut to Annttl Mabbiage Con- tract 92 11. Absolute DrvoROE 92 III. Limited DivoECE ; 92 Divorce, (continued.) IV. Alimony ; and Custody op Chil- dren 9S " ill-conduct," defined, 85. efiect of, on subsequent marriage, 134. Docketing. of judgment, 161. Documentary evidenee. what is admissible, generally, 107. Domicile 94- Dower 94- Drafts. See Bills of Exchange. Drains. rights of land-owner, respecting, 242. license to construct, 174. , Drunkards. See Habitual Drunkards. Due diligence. in charging indorsers, 41, 234. of common carriers, 48. Duress, in composition deed, 82. Dying declarations. effect of, as evidence, 107. Easements. I. General Principles 95 II. Particular Kinds of Easements, 95 what pass by deed, 84. Ejectment 96 conclusiveness of judgments in, 164. new trials in, 205. Election. between different forms or causes of action, 4, 125. dower and provisions of will, 94. of remedies, by seller of chattels, 250. Elections 97 of municipal officers, 45. Eleeated railroads. in Brooklyn, 46. Eminent domain 97 what may be taken, 54. taking land for highway, 131. power of city to take for local improve- ments, 207. power of railroad to take, 237. New Tork city to take, 207. Eniry. of judgments, 13, 15, 143. order of affirmance, 13. granting new trial, 206. satisfaction, 165. assignment, 25. .estoppel, 101. conversion, 284. Equity. I. The Jurisdiction, Generally; AND HOW Exercised 98 EQUITY— Equity, (continued.) II. Jurisdiction IN Pakticulab Cases... 99 of original parties against holder of bill, 41. power to grant relief in cases of fraud, 125. necessity of exhausting remedy at law, 78. parties to, suits in, 216. suits between partners in, 220. rules of pleading in, 223. when purchaser of note holds subject to, 233. relief in, against usury, 278. Error 100 when ground for reversal, 9, 12, 17, 49. impeachment of award for, 20. costs on, 71. when ground for new trial, 205. in pleadings, remedies for, 227. Escape. liability of sherifiFfor, 255, 256. re-arrest after, 34. Estates 101 in fee, 90. dower, 94. for years, 167. tenancy in common, 265. determination of claims against, 76. Estoppel. I. General Pbinciples 101 n. Estoppel by Kecokd 101 III. Estoppel BY Deed 101 rv. Estoppel IN Pais 101 by account stated, 3. judgment, 164. of principal, by agent's dealings, 229. EBtrays. liability of owner for trespass by, 8, 268. Evidence. I. The Nec3essity and SurnciENCY OP Evidence 102 II. PabolEvtdenoetoAepectWkit- TEN Instetjments 104 in. Admissions, Declabations, and Confessions 105 iv. docttmentaby evidence 107 to establish an advancement, 5. review of, on appeal, 9, 10, 12. deceiving new, on appeal, 10. on motion to vacate order of arrest, 23. in criminal prosecutions for assault, 24. arson, 24. actions on bills of exchange, 41. of boundary, 45. naturalization, or citizenship, 52. conspiracy, 53. in civil action for conspiracy, 53. _ actions on contract, generally, 63. covenants, 77. to enforce individual liability bf stock- holders, 67. EXCHANGE. 459 Evidence, (continued.) to prove usage, 80. of delivery of deed, 83. adultery, in suit for divorce, 92. in ejectment, 96. prosecution for false pretences, 121. prosecutions for murder, 132. civil action for causing death, 133. of marriage, 134. in actions on insurance policies, 152, 154. on trial for larceny, 170. in actions for libel, 173. lualicious prosecution, 177. to prove deed to be mortgage, 187. in foreclosure, 191. on application to vacate assessments, 196. to prove negligence, 202. as to contributory negligence, 204. to prove partnership, 218. under pleadings, 226. in actions on promissory notes, 234. quo warranto, 236. powers of referees respecting, 244. in actions for price of goods sold, 250. for slander, 257. trespass, 268. putting in, on trial, 269. in trover, 273. of revocation of will, 281. on probate of wills, 281. of incapacity of testator, 281. undue influence, 285. to impeach witness, 288. JEkamination. of witnesses, generally, 288. experts, 290, 291. party before trial, 88, 107. in supplementary proceedings. 111. Exca/valions, liability of city for injuries occasioned by, 198. Exceptions. in bills of lading, 42. to rule forbidding collateral impeachment of judgments, 165. report of referee, 245. time and manner of taking, generally, 269, 272. to rule excluding parties as witnesses, 286, 287. excluding opinions of witnesses, 290. Exceptions, (Bills of,) 1 08 necessity of, on appeal, 15. sufllciency of, on appeal, 15. Exehamge. bills of, 40. of checks, 51. lands, 58. 460 EXCISE— FORECLOSURE. Mceise. penalties, 176. JExmse. for non-perforraance of contract, 61. Execution. I. EXECTJTIONS AGAINST PbOPEETT... 109 II. Executions against the Person, 109 III. Payment. Satisfaction. Dis- charge 110 IV. Eelief AGAINST Executions 110 V. Proceedings Supplementary to Execution Ill contempt in supplementary proceedings, 55. of assignment for creditors, 26. deed in fictitious name, 83. necessary proceedings under, to support creditor's suit, 78. proof of, to let in documentary evidence, 107. on justice's judgment, 167. of annual report, by manufacturing com- pany, 178. powers of sheriffi in respect to sales under, 109. of wills, 281. Executors and administrators. I. Appointmbnt and Eemoval 112 II. Assets, Inventory, &c 113 III. Eights, Powers, Duties and Lia- bilities 113 IV. Suits 119 V. Foreign Eepresbntatives 120 accounting by, 3, 76. liability to pay interest, 158. right of, to sue for construction of will, 285. power to dedicate decedent's lands, 83. competency of party, as witness, in actions by or against, 287. declarations of, as evidence, 105. , of deceased partner, rights of, 221. Exemption. from taxation, 263. Mchiiits. annexing to commission, 87. what are admissible in evidence, 107. Mconeratwn. of bail, 34. guarantors, 129. sureties, 231. competency and qualifications of, 290. rules for examining, 291. JEx post facto laws. constitutionality of, 55. of order of arrest, by body execution, 22. debts, 82. Extradition 120 Factor. rights and, liabilities of, 230.^ False imprisonment. 121 stipulation not to sue for, 24, 110. when cause of action accrues, 175. False pretences 121 False representations. measure of damages in actions for, 81. when amount to fraud, 125. effect of, on sales of chattels, 250, 251. estoppel by, 102. Fahe return. liability of sheriff for, 255. Federal courts. See United States. Fee simple. when passes by devise, 90. Fees. of attorneys, 32. liability of attorney for, 31. contracts for contingent, 32. of auctioneers, 33. brokers, 229, 230. what are taxable as costs, 73. of referee to sell, in foreclosure, 193. referees, generally, 73. sheriffs, 110. stenographers, 31. witnesses, 73. 122 how settled and tried; 99. Fences. of railroads, 237. Ferries of case on appeal, 16. judgment-roll, compelling, 13. security for costs, 72. notice of mechanics' lien, 184. referee's report, 245. manufacturing company's annual report, 178. Finding. of indictment, 138. by commission in lunacy, 144. entry of judgment on, 161. of fact, by referee, 161, 245. Fines. for contempt, 56. Fire. insurance against, 146, et seq. department of, in New York city, 212. Fisheries 1 23 Fixtures 123 Fo7-beara/nce. as consideration for contract, 57. when discharges guarantor, 129. surety, 231. Forcible entry 1 24 Foreclosure. of chattel mortgage, 60. rORECLOSURE— HABEAS CORPUS. Foredomre, (continued.) of railroad mortgages, 236. mechanics' lien, 184. by advertisement, 190. strict, 191. by equitable action, 191. Foreign corporations. their powers and liabilities, 69. taxation of, 263. productions of books of, 91. Foreign executors. their powers and liabilities, 120. Foreign judgments. of courts of sister states, 166. conclusiveness of, 163. arrest in action on, 21. of federal courts, 166. Canadian courts, 166. Foreign laws. presumptions relative to, 103. assignments under, 25. rights of creditors under, 82. effect given to, 261. respecting marriage, 134. Forfeiture.. of bank charter, 39. corporate charter, 68. for non-payment of rent, 169. of life policy, for default in payment of premium, 161. conditional legacy, 172. railroad franchise, 236. for usury, 278. Forgery 124 liability on forged chefck, 38. bond, 44. Forma pauperis. costs in suits in, 70. Former adjudication. how pleaded, 224. plea of, in criminal cases, 164. generally, 162. Franchise. forfeiture of, 68, 181, 236. railroad, 236. Fraud. I. What Amounts to Fbaud ok De- ceit 125 II. Bembdies FOR Fbaud 125 arrest for, 21. what is, in assignment for creditors, 26. in disposal of property, when ground for attachment, 28. contracts, generally, 59. liability o7 corporations for, 67. by partner, when binds firm, 219. measure of damages in actions fo*, 81. in composition deed, 82. 461 Fraud, (continued.) impeaching judgment for, 165. vacating local assessments for, 196 210. Fraudulent conveyances 1 26 by bankrupt, 36. what chattel mortgages are, 50. exhausting legal remedy, 78. when ground for attachment, 28. Freight. abandonment in cases of loss of, 153. striking out, 227. Fugitives. extradition of, 120. Funeral expenses. payment of, 118. allowances for, on accounting of executor,, 118. Gaming. defined, 85. " bet" or "stakes," defined, 85. Gas-light companies 127 General average. contribution in, 153. Oeneral isme. evidence under, 226. General reputation. admissibility of, as evidence, 104. General Term. appeals to, 11, et seq. order that exceptions be heard in finst in- stance, at, 109. when opinion of, may be examined in Court of Appeals, 16. Gift 127 Grand jury. finding of indictment by, 138. Gramd larceny. See Lakcent. Grants. of easements, 95. Guaranty. I. General Principies 127 II. KEQtnBEMENTS OE THE STATUTE OP Frauds 128 m. Construction AND Operation.... 128 IV. Actions ON Guaranties 12S effect of law of place, 62. Guardian ad litem 129 appointment of, 117. Guardian and ward. I. Appointment ; and Nature op THE Trust .- 130 II. Powers and Duties op the Guardian 130 III. Accounting; and Liability op Sureties 130 effect of child's domicile on appoint- ment of, 94. guardians ad litem, 129. Habeas corpus 131 462 HABITUAL DEUNKARDS— INDORSEMENT. Habitual drunkards 131 Half-blood. when take by distribution, 91. Bandwriling, opinions of witnesses as to, 291. experts as to, 291. comparison of, 291. Sarbor. of New York, protection of, 206. Hamrdous and extra-hazardous. in fire insurance, 147, 149. Beareay. admissibility and sufficiency of, 104. Seir. ' inheriting by aliens, 7. what will descend to, 99. Highways 131 penalties for allowing cattle to run at large on, 222. obstructions in, as nuisances, 215, 277. Balding over. by municipal officers, 199. Homicide. I. The CRiMiKrAii Offence ; and how Pbosectjted 132 II. The Civil Action for Causing Death 133 assault with intent to kill, 24. Borse-racing. contracts to drive race-horses, 59. Borse railroads. injuries to passengers, 242. Buntington. decisions particularly applicable to, 199. Husband and wife. I. Marriage; and Agreements AND Promises in relation to Mabriagb 134 II. Eights and Povters of the Husband 134 III. Liabilities of the Husband... 134 IV. Bights and Disabilities of the Wife 135 V. Separate Estate of the Wife, 135 VI. Effect op the Kelation on ' THE Tenure and Transfer of Land 136 VII. Contracts and Dealings Be- tween THEM 137 VIII. Actions by or against Hus- band AND Wife 137 wife's note, alterations in, 7. , citizenship of wife, 52. ofience of wife, coercion of husband, 78. declarations of, as evidence, 105. conveyances to wife, 126. husband's curtesy, 80. competency of, as witnesses, 40. Bypotheeation. of chattels, generally, 34, 50. Illegality. of assignment for creditors, 26. chattel mortgage, 50. deeds, 84. testamentary provisions, 282. Illegitimate children. meaning of " illegitimate," 85. right of, lo take by descent, 90. Impaneling jurors. in courts of record, 269. criminal cases, 271. Impeachment. of award of arbitrators, 20. bankrupt's discharge, 35. judgments, collaterally, 165. judicial sales, 166. witnesses, 288. Imprisonment 1 37 on execution, discharge from, 109, 110. action for false, 121. Improvements. compensation for, 97. Inadequaey, of damages, new trial for, 205. Incapacity. what amounts to mental, 281. Incorporation. of corporations, generally, 64. plank road companies, 223. In^yumhranceg. condition against, in fire policy, 147. damages for breach of, 80. Indenmily. covenant of, 77. to sherifl; 254. Indictment. L The Finding 138 II. Form and Contents 138 III. PiiEA. Motion to Quash 138 for assault, 37. ' arson, 24. false pretences, 121. forgery, 124. murder, 182. larceny, 170. . peijqry, 222. subornation of perjury, 222. Individual liability. of stockholders in corporations, generally, 66. foreign corporations, 69. manufacturing companies, 180. time to sue to enforce, 175. Indorsemeni. of bill of exchange, 41. power of partner to bind firm by, 219. of promissory notes, 233, 234. INFANTS— INTERPRETATION. 463 Infants 1 39 general guardians of, 130. guardians ad litem, 129. Information and belief. affidavits on, 6. Infringement. of trademark, 267. Injunction. I. General Pbinciples 140 II. Use oe the Weit in Partictjlab Cases 141 m. Granting AND Dissolving 142 IV. Damages on Dissolution. Eem- EDY on Bond ob Undertaking. 143 punishing violation of, as contempt, 55. enjoining summary proceedings, 169. to restrain nuisance, 215. diversion of running water, 185. infringement of trademark, 267. waste, by mortgagor, 192. Injury. by animals, liability of owner for, 8. to passenger, 122, 239. the person, measure of damages for, 81. what is ground for injunction, 140. to persons crossing railroad track, 240. employees, 182, 240. Insane persons. I. Disabilities of Insane Persons, 144 II. The Inqdisition. Appointment OF Committee, &c 144 Insolvency 144 Inspection. of books and papers, generally, 89. official books and papers, 243. Instructions. review of, on appeal, 9. on question of negligence, 203. contributory negligence, 205. exceptions for errors in, 108. general exceptions to, 109. in murder cases, 133. suit on insurance policy, 154. libel, 173. to jury, what proper, generally, 270, 272. in prosecution for receiving stolen goods, 170. Insurance. I. General Principles 145 II. Fire Insurance 146 III. Life Insurance 150 IV. Marine Insurance 152 V. Actions on Insurance Policies 153 VI. Insurance Companies 155 VII. The Insurance Department.. 157 taxation of insurance companies, 262. cancellation of policy, 99. burden of proof, in action on policy, 104. mortgagee's right to proceeds of, 187. Intendments. on appeal, 10. See, also. Presumptions. Intent. assaults with special, 24. to hinder creditors, 21, 26. presumptions in respect to, 103. of parties to written instruments, ascertain- ing by parol, 104. when question of fact for jury, 274. to revoke will, how shown, 281. of testator, how ascertained, 282. Interest. I. The Eight to Interest 158 II. The Hate ; and Computation 159 real party in, liable for costs, 73. declarations against, as evidence, 105. when personal representatives are charge- able with, 118. of assured, disclosure of, 147. mortgagee, 187, 188. when usurious, 278. provision in foreclosure judgment,! as to, 192. Interlocutory judgment. appeal from, 11. Interpleader 159 bringing in new parties, generally, 217. Interpretation. of statute relative to revival of actions, 1. advancements, 5. submission to arbitration, 20. assignments, 25. for benefit of creditors, 26. savings bank charter, 39. bills of lading, 42. bonds, 44. chattel mortgages, 50. constitutional provisions, 54. contracts, generally, 58. corporate contracts, 67. statutes relating to security for costs, 72. city of Buffiilo, 46. covenants, 77. composition deeds, 82. ordinary deeds, 84. guaratities, 128. t judgments, 162. legacies, 171. mechanics' lien laws, 183. mortgages, 187. assignment of mortgage, 190. policy of insurance, 145, 146, 150, 152. town-bonding laws, 197. statutes for local improvements, 207. partnership articles, 219. express contracts for services, 252 statutes, 260. trusts, 274. 464 INTERPRETATION— JURISDICTION. Interpretation, (continued.) of contracts for sale of land, 279. wills, 76. Interrogatories. on commission to take deposition, 87. Intrusion into office. remedy by qtu) warranto, 236. of decedent's personalty, 113. of execution against property, 109 letters on decedent's estate, 112, under pleadings, generally, 226. of process, 231. stock, 64. Joinder. of parties, in actions by or against husband and wife, 137, parties in actions, generally, 216. causes of action, 4. issue, 224, 226. Joint debtors. proceedings to bind, when not originally summoned, 160. Joint stock companies 1 60 manufacturing companies, 178. Joint tenants. See Tenants in common. Judges. qualifications of, 75. what motions may be made before, 195. Judgment: Decree. I. Rules Eelative to Pasties 160 II. Eendition and Entry of Judg- ments 161 III, Intebpbetation and Effect. Conclusiveness 162 IV. Lien. Pkiobity 165 "V. Satisfaction and Dischaeoe... 165 VI. Opening, Amending and Va- cating 165 Vn. Enfobcement 165 Vin. Judgments by Confession 166 IX. Judgments OF CouBTS OF Otheb States and Countbies, and OF THE Federal Courts 166 amendment of, 8. what is final, and what interlocutory, 11. notice of entry of, 11. compelling entry of, 13, 15. • appeals from, to General Term, 11, et seq., 19. Court of Appeals, 13, et seq. of appellate court, 11, 12, 17, 19. modifying in appellate court, 12. cancellation of, after discharge in bank- ruptcy, 35. for absolute divorce, 92. use of, as evidence, 107. in actions against personal representatives, 119. mechanics' lien cases, 184. Judgment : Decree, (continued.) in foreclosure, 192, 193. partition, 218. on referee's report, 92. in justices' courts, 167. on frivolous pleadings, 227. Judicial notice. what must be proved, 103. need not be, 103. Judicial sales sales at auction, 33. execution sales, 109. sherifl's deed, 109. foreclosure sales, 190, 192. in partition, 218. for non-payment of taxes, 264. Juries. See Instructiows. right to trial by jury, 54. polling the jury, 270. what questions are for, 154. impaneling, 269, 271. misconduct of, 205. Jurisdiction 166 166 on appeal, 9, 13. to grant order of arrest, 22. extra allowance, 72. of state courts, of suits by assignees in bankruptcy, 35. to issue certiorari, 49. pf courts, generally, 75. suits against national banks, 39, 75. of New York Common Pleas, 18. Marine Court of city of New York, 18. Court of Appeals, 13. General Term, 11. Surrogates' Courts, 75. Special Sessions, 77. in equity, generally, 98. supplementary proceedings, 111. to order sale of lands for payment of debts, 117. production of books and papers, 91. call executors to account, 17. in burglary, 47. on habeas corpus, 131. to order sale of infant's lands, 139. stay proceedings by injunction, 142. judgment of no force, if court has not, 162. impeaching judgment for want of, 165. of justices of the peace, 166. in summary proceedings, 169. foreclosure, 191. partition, 217. to issue writ of prohibition, 232. refer issues, 244. of application for new trial, 206. proceedings in quo warranto, 236. JUSTICE OF THE PEACE— LOTTERIES. 465 Justice of the peace- I. JtTBISDICTION 166 II. Pbocedttee 167 III. Appeals pjrom Jtjstices' Courts, 167 Justification. of sureties on appeal, 19. JShowkdge. of agent of corporation, 67. insurance company, 155. generally, 229. co-tenant, 266. Laches. in moving to vacate assessment, 196. Landlord and tenant. I, The Eblation ; how Constituted AND Terminated 167 II. Eights and Obligations arising OUT OP THE Eelation 168 III. Eent ; and Eemedies to Ee- COVER IT 168 IV. Eecovery op Possession by Landlord 169 the lease, 170. of time, when bar under statute of limita- tions, 175. Larceny 170 Law of place. effect of, on bills of exchange, 41. delivery by carrier, 48. contracts, generally, 62. contract of marriage, 134. promissory notes, 234. title to personal property, 223. Leading questions. what are, admissibility, &c., 290. Leases 170 power of cities to make, 196, 206. . railroads to make, 236. between connecting lines, 241. Legacies. I. Nature, Interpretation and Effect. Validity 171 II. When a Chaege upon Land 172 III. Payment 172 IV. Incidental Eights and Liabil- ities op Legatee 172 payment and delivery of, 116. interest on, 158. Legislature. power over railroads, 236. Letters. on estate of decedent, 112, 113. of credit, construction of, 128. of attachment, 29. execution, 109. liability for wrongful, 254. Libel .••••.••••/•■ 173 measure of damages m actions tor, 81 2q Libel, (continued.) what communications ,are privileged, 133^ 233. License 1 74. to practice medicine, 223. offence of selling liquor without, 176. Lien 174. of attorney, for costs, 32. judgment, 165. mechanics and material-men, 183. seller of chattels, 249. upon vessels, enforcement of, 256. Life insurance. in general, 150. warranties, representations, &c., 150. premiums, 151. death, and proof thereof, 152. Limitations of actions. I. General Principles 174 II. What Lapse op Time will Cre- ate a Bab 175 III. When the Statute Begiks to EuN 175 IV. Disabilities an d Exceptions 176 V. Acknowledgment. New Pro- mise. Part Payment 176 of suits against personal representatives, 119. effect of adverse possession, 5. of suits on insurance policies, 153. for causing death, 133. Liquor-selling 1 76 Lis pendens. filing, and effect of, generally, 228. Loan commissioners. interpretation of mortgages taken by, 190. Loans. by banks, 38. personal representatives, 114. effect of law of place, 62. when usurious, 278. Local improvements. in cities, generally, 196. New York city, 207. Brooklyn, 46. Local statutes. necessity that subject be expressed in title, 54. ioss. liability of carrier for, 48. personal representative for, 115. bank for, 37. of profits, when allowed as damages, 80. in insurance cases, 146. agreement to share, when constitutes part- nership, 218. of baggage, liability of railroad company for, 238. liability of trustee for, 276. Lotteries. contracts respecting, 59. 466 MACHINERY— MOETGAGES. Ltmatics. See Insane Persons. Machinery. ^ liability of master to servant for defects in, 182. liability of railroad company respecting, 240. Mail. service of notice of protest by, 234. to creditors by, 144. process, by, 232. Maintenance. liability of parent for, 216. husband for, 134, 135. Malicious prosecution 177 IVIandamus. I. General Principles 177 II. Use op the Writ in Various Cases 177 III. Procedure 178 Manufacturing companies. I. Organization and Corporate Powers 178 II. Liabilities or Officers and Trustees 178 III. Individual Liability of Stock- holders 180 IV. Dissolution, Receiver, &o 181 Maps. admissibility of, in evidence, 108. Mari'ne Court of the dty of New York. continuance against executor of deceased party in, 2. appeals to Common Pleas, 18. Marine insurant. interpretation of policy of, 152. warranties, representations, &c., 152, 153. abandonment, 153. seaworthiness, 152. Maritime liens.] how enforced, 256. Marriage. the contract, generally, 134. of guilty party, after divorce, 92. suit to annul, 92. Married women's acts. rights of wife under, generally, 135. Master. liability to third persons, 181. servant, 182, 240. of vessel, barratry by, 256. Master and servant 1 81 burden of proof between, 104. servants of railroad companies, 240. injuries to, by defects in road, or machin- ery, 240. neglect of co-servant, 240. of New York city, 211. removal of officers by, 211. Measure of damages. See Damages. in actions on contract, 80. for wrongs, 81. Mechanics' lien. I. The Lien ; and Eights op the Parties, generally 183 II. Proceedings to Foreclose 184 in Buffalo, 47. Members. of j oint stock companies, 160. voluntary associations, 257. Memorandum. necessity of, under statute of frauds, 57. right of witness to refer to, 290. Merger. of written, in subsequent oral contract, 104. Mills 185 Ministers. foreign, jurisdiction ofsuits against, 166. Minors. See Infants. offence of procuring abortion, 79. Misconduct. of arbitrators, 21. attorneys, 31. jurors, 205. Mi^oinder. of causes of action, 4. Misrefpresentations. See Fraud. in insurance law, 149. Mistake 185 varying a writing by parol, in cases of, 104. Mitigation of damages. in slander, 257. Ubel, 173. Mob. liability pf city for acts of, 198. Money received, (Action for) 186 recovery of money paid for taxes, 265. Mortgages. I. What Constitutes a Mort- gage 187 II. Validity, Interpretation and Effect 187 III. Eights and Liabilities op the Parties ■ 187 IV. Decisions Under the Eecord- ingActs. Priority 189 V. Assignments 190 VI. Foreclosure 190 VII. Eedemption 194 VIII. Discharge of the Lien by Payment 194 of chattels, 50. parol evidence to convert deeds into, 187. explain or vary, 105. when bind wife's separate estate, 136. of railroads, 236. property of manufacturing company, 178. infants lands, 140. MORTGAGES— NON-EESIDENTS. 467 mortgages, (continued.) when void for usury, 278. cancellation of, in equity, 99 estoppel by recitals in, 101. Motions and orders 1 95 to obtain or vacate order of arrest, 22. for attachment, 28. judgment, appeal from, 11. to vacate atta6hment, 29. against attorneys, 31. for bill of particulars, 42. costs of, 71. for extra allowance, 72. inspection of books and papers, 91. order to examine party before trial, 88. alimony, 93. to confirm referee's report in divorce case, 92. for leave to sell land for payment of debts, 116. to quash indictment, 139. vacate execution, 110. for injunction, 142. to dissolve injunction, 143. open defaults, 165. for new trial, 11. to strike out pleadings, 227. make more definite and certain, 227. for order of reference, 244. to vacate order of reference, 245. change place of trial, 246. for leave to examine party before trial, 88. Municipal corporations. I. Incorporation and Charters 196 II. Powers 196 III. Liabilities 197 IV. Municipal Officers 199 V. Decisions of a Local Character, ' AFFECTING A PARTICULAB CiTT OB Village only 199 injunctions against, 141. maiidamus to officers of, 177. decisions relative to New York city, 83. Brooklyn, 45. Buffalo, 46. horse railroads, in, 242. elevated railroads in, 242. Mwder. See Homicide. what killing amounts to, 132. Mutual. promises, 57. insurance companies, 155. Name. designating unknown parties, 231. of partnership, 219. executing deed in fictitious, 83. National banks. attachments against, 28. suits against, 39, 75. Naturalization. the power to confeis, its effect, &c., 52. Necessaries. liability of husband for, 134. married woman for, 135. parent for, 216. Negligence, I. What Amounts to Negligence, and the Liability Therefor, 202 II. Contributory Negligence 203 measure of damages in actions for, 81. of passenger, in respect to baggage, 238. corporate ofiBoers and agents, 67. burden of proof in cases of, 104. of servant, liability of master for, 182. agent, when principal liable for, 229. liabilities of railroad companies for, 239. of flagman, effect of, 240. Negotiable inistiruments. bills of exchange, 40. coupon bonds, 44. explaining by parol, 105. declarations of parties to, 105. time to sue on, 175. by partner, to bind firm, 219. effect of, as payment, 222. rules relative to promissory notes, 233. when void for usury, 278. New promise. after discharge in bankruptcy, 36. New trial. I. Grounds 205 II. The Application ; and how Dis- posed OF 206 appeal from order granting or refusing, 11, 14. ordering, on reversal, 100. of feigned issues, 99. referred claims, 116. New York city. I. Corporate Powers 206 n. Local Improvements; and As- sessments Therefor 207 III. Municipal Officers 211 IV. Corporate Liabilities.. 214 College of the City of, 251. Marine Court of, 18. New York stock exchange, 258. Next of hm. who are 86. who may take by distribution, 91. Non compos mentis. See Insane Persons. Nonrimprisonm^nt act. See Stilwell Act. Non-negotiable imstrmnents. orders, 41. what promissory notes are, 234. interest on, 159. Non-residents. service of process on, 232. 468 NON-SUIT— PARTIES. Non-suit. granting and refusing, generally, 270. Notice. of entry of judgment, to limit time to ap- peal, II. appeal, 18. to quit, 96. produce best evidence, 103. creditors, in insolvency, 144, 156. of dishonor of bill, 41. to creditors of decedent's estate, 116. of foreclosure sale, 192. loss, in insurance, 146, 149, 152. mechanics' lien, 184. constrnctive, as applied to mortgages, 189. of local improvement, before taking land, 207. dissolution of partnership, 220. to agent, when binds principal, 229. of dishonor of promissory note, .234. redemption from tax sale, 264. when purchaser of land charged with, 279. Nuisance. I. What Amounts to a Ntjisance.... 215 II. Eembdies 215 private, defined, 86. remedy by injunction, 141. Oath. before whom taken, 6. of arbitrators, 20. city ofScers, 199. how administered, 222. Objeatio'ns. waiver of, 10, 12, 17, 272. how interposed on trial, generally, 108. to accounts of executor, 118. testimony, 269, 290. Obstructions. in private ways, 95. highways, 132. by turnpike company, 277. in city streets, 198. to navigation, 214. in streets and highways, as nuisances, 215. water-courses, 280. Occupation. what necessary to give title by adverse possession, 5. of insured premises, 147. Officers. banks, 39. savings banks, 40. corporations, generally, 67. liability of, to stockhold- ers, 65. presumptions in favor of acta of, 103. of insurance companies, 155. mandamus to, 177. Officers, (continued.) of manufacturing companies, individual liability of, 178. municipal corporations, 199. New York city, 211 Brooklyn, 45. g«o warranto to try title, 236. of railroad companies, 238. towns, 266. Off-sets. See Set-off. Opening. partnership accounts, 220. new roads, 131. judgments, 165. surrogates' decrees, 76. Opinion. of General Term, referring to, on appeal,. 16. expressions of, when not actionable though false, 125. when disqualifies juror, 271. Order. appeals from, 11, 13, 14, 19. of Marine Court, appeal from, 18. affirmance, entry of, 13. arrest, 22. to take deposition, 87. show cause, in contempt, 56. non-negotiable, 41. of distribution, 91. sale in foreclosure, 192. in supplementary proceedings. 111. for money, interest on, 159. of injunction, 140. for service by publication, 232. Ordinances. of cities, generally, 196. New York city, 206. effect of, as evidence, 108. Organimtion. of banks, 36. corporations, generally, 64. Overseers. of the poor, 176. Ownership. averment of, in indictment for arson, 24. rights of owner of oyster-bed, 123. Parent and child 216 assaults upon children, 79. conveyances between, 126. custody of children, 131. discretion of court as to custody, 131. descent to illegitimate children, 90. Parties 216 death of, as ground of abatement, 1. continuance after death of, 1, 2. who may sue, generally, 77. on appeal, 11. PARTIES J'arties, (continued.) to bonds on appeal, 19. who may move to vacate attachment, 29. in actions on contracts, generally, 62. suit to dissolve corporation, 68. actions on covenants, 77. bonds, 44. ejectment, 96. actions for divorce, 92. fraud, 125. by or against husband and wife, 137. summary proceedings, 169. suits against officers of manufacturing companies, 178. foreclosure suits, 191. insolvency proceedings, 145. partition, 217. pleading defect of, 224. in actions of trover, 273. competency of, as witnesses, 286. examination of, before trial, 88. Partition 217 Partnership. I. The Belation, aud how Consti- tuted 218 H. POWBB OF ONE PaBTNER TO BlND Another, or the Fibm 219 HI. Suits Between Partners. Ac- counting 220 TV. Eights or Creditors 220 V. Dissolution 220 Part payment. of claim against city, 197. to revive debt barred by statute of limita- tions, 176. of subscription for corporate stock, 65. Part performance. effect of, to take contract out of statute of frauds, 58. Party walh. law of easements respecting, 95. Passengers. rights and liabilities of carriers of, 238, et seq. right of action for expulsion from car, 238. injuries to, 122. Patents 221 Paupers. See Poor. Pmm. See Pledge. Payment 222 power of assignee for creditors to make, 27. of debts, generally, 82. application off 82. by bill, note or check, 82. to effect redemption from execution sale, 109. of debts and legacies by personal represen- tatives, 116. —PETITION. Payment, (continued.) 469 of premiums on life policies, 151, 155. guaranty of, 128. by owner, eflect on mechanics' lien, 184. action for money paid by mistake, 186. of mortgage debt, 191. when tender is necessary, 266. what sufficient, to raise resulting trust, 275. Penalties, for violating injunctions, 55. excise laws, 176. interpretation of statutes imposing, 261. for usury, 278. Pendency of another action. how pleaded, 224. Performance. of contracts, generally, 60. covenants, 77. effect of on statute of frauds, 58. Perils of the sea. defined, 86. Perjury 222 before whom oath may be taken, 6. sufficiency of oath, 6. effect of, to avoid devise or legacy, 172, 282. Personal injuries. to passengers, 122, 239. liability of master to servant for, 182. third persons for, 181. by excavations in, or unsafe condition of streets, 198. to employees of railroad company, 240. persons crossing traQk, 240. Personal property 222 mortgages of, 50. , admissibility of declarations respecting title to, 106. what may be reached by execution, 109. attachment, 28. sufficiency of levy on, 109. management of, by personal representa- tives, 114. of wife, rights of husband as to, 134. sales of, 249. what subject to taxation, 262. for what trover lies, 273. Personal representatives. See Executors and Administrators. Petition. for leave to sell lands for payment of debts, 117. marry after divorce, 92. sell infants' lands, 139. appointment of committee of lunatic, 144. discharge from imprisonment, 137. 470 PETITION— PREFERENCE. Petiium, (continued.) to vacate assessments, 196, 209. for removal of cause to federal court, 247. in proceedings in insolvency, 145. summoning and impaneling, 269, 271. Photographs. admissibility of, as evidence, 103. Physicians and surgeons 223 competency of, as experts, 290, 291. Pilotage. regulations of, 266. Place of trial. in general, and how changed, 180. local and transitory actions, 4. Plank road companies 223 Plea. to indictment, generally, 138. of former acquittal or conviction, 164. adjudication, 162, et seq. tender, 266. - title, in justice's court, 167. puis darrein continuance, 225. Pleading. I. COMPIiAINT 223 II. Answer 224 III. Demtjbbeb 226 IV. Beplt 225 V. Vebification op Pleadings.... 226 VI. The Issue ; Effect of Admis- sions IN Answer 226 VII. Evidence under THE Pleadings 226 VIII. Amended and Supplemental Pleadings 226 IX. Bemedies fob Errors and De- fects 227 in abatement, 1. amending, 7. bills of exchange, 41. admissibility of, as evidence, 107. in actions against personal representatives, 119. for conspiracy, 53. divorce, 92. limited divorce, 93. on guaranties, 128. by or against husband and wife, 137. charging the oflFence, in criminal cases, 138. in action on insurance policy, 154. creditor's suit, 78. actions for libel, 173. suit to foreclose mortgage, 191. misjoinder of parties, 216. entry of judgment on, 161. joinder of causes of action, 4. in actions on promissory notes, 234. replevin, 247. actions for price of goods sold, 250. slander, 257. trespass, 268. setting up usury 278. See, also, Bailment. of corporate bonds, 35. Police. department of, in New York city, 212.. Policies of insurance. interpretation of, 145, et seq, assignment of, 135. cancellation of, 99. actions on, 153. 227 prosecution for, 79. Poor Possession. what necessary to give title by adverse pos- session, 5. in grantor, when badge of fraud, 126. of chatltes mortgaged, 50. sufficiency of, to support ejectment, 9& recovery of, by landlord, 169. of mortgaged premises, right to, 188. Posthumous children. descent to, 90. Powers. of assignee for creditors, 26, 27. attorneys-at-law, 31. assignee in bankruptcy, 36. banking corporations, 37. bank officers, 37. savings banks, 40. corporations, generally, 67. receiver of insolvent corporation, 69, 156. sale, given by will, 284. general guardian, 130. highway officers, 131. married women, under enabling acts, 135^ justice of the peace, 166. manufacturing companies, 178. municipal corporations, 196. personal representatives, 113. agents, 228. referees, 249. sheriffl, 254. trustees, 275. to sell, when equitable conversion, 284. Practice 22a in suits for accounting, 3. on accounting by personal representatives,. 117, 118. in contempt proceedings, 55. on appeal, 10, 11, 15, 19. costs in suits in forma pauperis, 70. . on motion to quash indictment, 139. in foreclosure by action, 191. on confirmation of report of commissioners^ of assessment, 209. removal of causes from state court to U.. S. Circuit Court, 247. Preference. in assignment for creditors, 26. PEEFERENCE— PROOF. 471 Preference, (continued.) of causes, on trial calendar, 269. . appeal, 16. Prdiminary proofi. to let in documentary evidence, 107. of loss of insured property, 146, 149. Premiums. payment of, on life policy, 151, 155, Prescription. See Adverse Possession. easements by, 95. President. of bank, 39. corporation, 67. railroad company, 238. P'esumpiions. on appeal, 10. of fraud, in assignment for creditors, 26. on trial, generally, 103. as to delivery of deed, 83. laws of other states, 103. foreign laws relative to marriage, J34. relative to malice, in malicious prosecution, 177. in favor of holder of note, 233, Principal. in crime, who is, 78. surrender of, by bail, 34., rights of, as towards agent, 228. liabilities of, to third persons, 229. exhausting remedy against, before surety, 129. Principal and agent. I. Appointment of Agents; and THEiE Powers, generally II. Eights, duties, aud Liabilities op Agents in. Bights and Liabilities op Prin- cipals IV. Decisions Eelative to Pahtiott- LAR Classes op Agents agents of corporations, 67. declarations of agent as evidence against principal, 106. husband as agent for wife, 135. insurance agents, 155. burden of proof, as between, 104. taxation of agents, 262. Principal and surety. I. General Principles II. Eights and Liabilities op the Parties m. What will Exonerate the Surety liabilities of bail, 34. sureties on appeal, 19. Priority. between chattel mortgage and claims of creditors, 51. among creditors, 157. deeds, under recording acts, 84. debts of decedent, 116. suine; 228 228 229 229 230 230 231 Priority, (continued.) in mechanics' lien cases, 184. between mortgages, 189. assignments of mortgages, 190. Private statutes. constitutionality of, 54. Private ways. law of easements, Privilege. of communications respecting, 95. between attorney and client, 33. in slander, 257. between physician and patient, 223. to refuse to answer, 89. Prohable cause. rules as to, in action for malicious prosecu- tion, 177. Probate. of wills, generally, 281. jurisdiction of surrogate, 76. Process 231 waiver of defects in, by appearance, 4. amendments in respect. to, 7. service of, on foreign corporation, 69. infants, 140. judgment against defendant not served with, 160. in justices' courts in civil cases, 166. Profits. when loss of, recoverable, 80. agreements to share, when constitute part- nership, 218. Prohibition 232 of marriage of guilty party after divorce, 92. Promise. to accept bill, 41. mutual promises, 57. for benefit of third person, 57. induced by threats, 60. Promissory notes. I. Nature and Eequisites, gener- ally 233 II. Transfers ; and Eights op Pur- chasers 233 III. Eights and Liabilities op In- DORSERS 234 IV,. Non-negotiable Notes 234 V. Law OP Place 234 VI. Actions upon Promissory Notes, 234 alterations in, 7. when charge on wife's separate estate, 136. power of partner to bind firm by, 219. Proof. See, also, Evidence. of matter in abatement, 1. claims, before assignee for creditors, 27. boundary line, 45. citizenship, 52. custom, 80. 472 PROOF— EEAL PROPERTY. J'roof, (continued.) of gift, 127. delivery of deed, 83. > -rule requiring best evidence, 103. of marriage, 134. claims against insolvent insurance com- pany, 156. loss under policy of insurance, 146, 149. consent of tax-payers in town-bonding, 198. service of process, 232. wills, 281. Fioperiy. what may be reached by attachment, 28. will pass by assignment for creditors, 26. power of corporations to acquire, 67. what will pass by devise, 90, 283. subject to dower, 94. execution against, 109. rights of infants, 139. what reached by mechanics' lien, 183. may be mortgaged, 50. subject to taxation, 262. Fropoaals. advertising for, 208. JVoiest. of promissory note, 234. J'rostittUion. prosecution for, 79. JPMicalion. to creditors of decedent, 116.- of resolution for local improvement, 207. ordinances, in New York city, 206. service of process by, 232. of will, 281. fMie policy. contracts contrary to, 60. J'unishment. " cruel and unusual," 55. for contempt, 55. disobedience in supplementary proceed- ings, 55. violating injunction, 55, 143. of attorneys, 31. S'tmiiwe damages. when recoverable, 257. JPwchasers. of property pledged, 35. bills of exchange, 41. bills of lading, 42. negotiable bonds, 44. chattels subject to mortgage, 51. checks, 51. corporate stock, 64. lights of, under recording acts, 189. of land, subject to mortgage, 188. at execution sale, 109. Purchasers, continued.) at other judicial sales, 166. foreclosure sale, 193. partition sale, 218. sale of infants' lands, 139. of promissory notes, 233. accommodation note, 233. chattels, their rights and duties, 249, ei seq. land sold for taxes, 264. effect of usury on rights of, 278. of real property, at private sale, 279. trust property, 276. QuaMfications. of judges, 75. surrogates, 77. personal representatives, 112. petit jurors, 269. experts, 291. indictment, 139. Quasi corporations. rights of members, 67. Questions of law and fact 235 in action on insurance policy, 154. malicious prosecution, 268. of fact, how reviewed, 16. when negligence is for the jury, 203, 204. intent is for thejury, 274. Quieting title. See Cloud on Title. Quo warranto 236 in contested elections, 97. Railroad companies. ' ]. Incorporation, Organization, AND Powers, generally 236 II. Acquiring Right of Way, and Constructing the Road 237 III. Rights, Powers and Duties of Officers, Agents and Ser- vants 238 IV. Powers, Duties and Liabilities in respect to the Manage- ment OF the Road 238 v. Horse AND Street Railroads... 242 injunctions against, 142. license to use city streets, 46. municipal subscriptions in aid of, 197. taxation of, 262. elevated, taxation of, 263. Ratification. what will raise equitable estoppel, 101. of agent's act, by principal, 229. partner's act, by copartner, 219. Real property ' 242 acquiring title by adverse possession, 5. disabilities of aliens in respect to, 7. for what ejectment will lie, 96. what may be taken for public use, 97. power of city of Buffalo to take, 46. REAL PROPERTY— REPLY. 473 Real property, (continued.) declarations respecting title to, as evidence, 106. what may be reached on execution, 109. levy on, 109. sale of, 109. of infants, sale of, by order of court, 139. plea of title to, injustice's court, 167. license to enter on, 174. limitations of actions respecting, 175. partition of, 217. specific performance of contracts relative to, 259. what subject to taxation, 262. sale of, for non-payment of taxes, 264. tenancy in common of, 265. trespasses on, 268. resulting trusts in, 275. contracts for sale of, 279. Me-argument. when allowed on appeal, 18. Receivers 242 of corporations, generally, 69. in supplementary proceedings. 111. of insolvent insurance companies, 156. manufacturing companies, 181. in foreclosure, 192. partition, 217. Mecitals. in extradition warrant, 120. estoppels by, 101. Secord. how brought up on appeal, 10. necessity of recording deeds, 84, how brought up on error, 100. estoppel by, 101. admissibility of, in evidence, 108 of mortgage, 189. assignment of mortgage, 190. Secoupment. of damages for breach of warranty, 250. &om execution sale, 109. foreclosure sale, 194. tax sale, 264. Reference 244 appeal from judgment on report of referee, 16, 19. in divorce cases, 92. against receivers, 69. of claims against decedents' estates, 116. to ascertain damages on dissolution of in- junction, 143. in foreclosure, 193. partition 217. Jle-insuranoe. against fire, 148. Melease. of guarantor, 129. surety, 231. grantee's covenant to pay mortgage, 189. guardian, by ward, 130. against proceedings at law, 141. from executions, 110. extent of, in cases of fraud, 125. when granted for mistake, 185. against partner, in equity, 220. Religious societies 246 Semainders. when vested, 101. in personal property, 171. Itemittitur. from Court of Appeals, 18. Hemoteneas. in testamentary provisions, 282. JRemovcd. of attorneys, 31. corporate officers, 68. personal representatives, 76, 113. highway obstructions, 131. of city officers, by mayor, 211. disability of coverture, 176. receiver, 243. trustee, 277. property, when ground for injunction, 141. Removal of causes 246 Renewed. of leases, covenants for, 170. motions, 195. insurance policies, 149. Merit. liability of New York city for, 214. remedies to recover, 168. summary proceedings for non-payment, 169. Benwnciaiion. of executor, 113. He-organization. of corporation, 64. railroad company, 237. Repairs. of highways, 131. streets in New York city, 214, vessels, liability for, 256. Bepeal. of statutes, 261, mechanics' lien laws, 183. Replevin : Claim and delivery 247 for property illegally levied on for taxes, 265. M^ly. when necessary, 225. to counter-claim, 254. 474 REPORT— SECONDARY EVIDENCE. Seport. of referee, in divorce case, 92. commissioners in proceedings to take lands, 98, 209. referees, generally, 245. actuary, 156. what will raise equitable estoppel, 102. of partner, when bind firm, 219. vendor of land, 279. insured, 149. Jtes gestos. what is admissible, as part of, 104. of contracts, generally, 62. sales of chattels, 251. contracts for sale of land, 279. in deeds, 84. Residuary dause, in will, how interpreted, 284. ition. of personal representative, 1 13. trustee of manufacturing company, 178. ition, after reversal, 18. of consideration on rescission of contract, 61. jRetrogpective laws. constitutionality of, 55. interpretation of, 261. statutes of limitation, 174. BetMm. to certiorari, 49. of irregular pleadings, 227. sheriff, 255. liability for false, 255. Meiiersal, what errors are ground for, 9, 17, 18, 49, 100. final judgment on, 11. restitution on, 18. costs on, 71. effect of, 19. Seview. of discretionary action, 9. referred causes, 16. proceedings in contempt, 56. taxation of costs, 73. accounts of personal representatives, 118. assessments for local improvements, 196, 209. reports of referees, 245. proceedings to dispossess tenant, 169. Semed statutes. new trials in ejectment under, 205. Bmvai. of actions, 1, 2. Eemocation. of license, 174. taxpayers' consent to bond town, 198, wills, 281. Bewards. offers of, 57. Shinebeck. decisions particularly applicable to, 200. Riparian rights 24S right to natural fiow of stream, 185, 280. Bisk. in insurance, what is within it, 148, 149. hazardous and extra-hazardous articles, 147. condition against increase of, 148. Bochester. decisions particularly applicable to, 200. Bides. of court, effect of, 75. Sales, I. The Contract ; Validity ; Eights of the Pabties, &c... II. Deliyebt and Payment III. Wabbanties. Saies by Sample, IV. Ebmedies between Buyer and Seller 24» 249 250 250 at auction, 33. by assignee for creditors, 27. of property pledged, 35. delivery by transfer of bill of lading, 42. of corporate stock, 64. agent's interest, 228. on execution, 109. by personal representatives, 114. of land, for payment of debts, 116. infants' lands, under order of court, 139 mill property, 185. on foreclosure by advertisement, 190. suit, 192. for non-payment of highway assessments, 181. in partition, 218. of trust property, 276. land for non-payment of taxes, 264. contract for, 279. See Insane Persons. Saratoga Springs. decisions particularly applicable to, 200. Satisfa£tion. of judgment, 165. real property mortgage, 194. Savings banks, interpretation of charter, 39. powers and liabilities, 40. Schools 251 trustees of, in New York city, 212. Secondary emdence. admissibility, preliminary prooft, &c., 103. SECURITY— STATUTE OF LIMITATIONS. 475 on appeal, 10, 11, 19. of assignee for creditors, 26. for costs, 72; I property levied on, 29. payiaent of alimony, 93. when required from executor, 112. of administrator, 112, 119. general guardian, 130. on injunction, 142, 143. Seizin. necessity of, to sustain curtesy, 80. evidence appealing to, 103, 203. Sfparate estate. under married women's acts, 135. liability of, for husband's debts, 135. services rendered, 136. conveyances of, 136. SeparaMon. liability of husband for necessaries after, 134. Servants. right to wages, 252. liability of master for injuries to, 182. injuries to, liability of railroad company, 240. Service. of notice of appeal, 18. case on appeal, 12. warrant of attachment, 29. upon whom attachment may be served, 29. of notice to creditors in insolvency, 144. order to show cause in proceedings for contempt, 56. orders, generally, 195. notice to quit, 96. of foreclosure by advertisement, 190. process in foreclosure, 191 suits against foreign corpora- tions, 69. actions against sheriffs, 256. process, 69, 129. on infants, 140. reply, 226. Services 252 of attorney, actions for, 33. measure of damages in actions for, 80. when wife may sue for, 136. liability of cities on contracts for, 197. New York city for, 214. Sessions. courts of, 77. Set-off: Counterclaim 252 against attorney's lien for costs, 33. Settlement. of case on appeal, 12, 16. by parties, effect of on rights of attorney, 32. Sham pleadings. striking out, 227. Sheriffs. I. Rights, Powers and Duties 254 II. Liabilities 254 liability of, as bail, 34. powers in making levy, 29, 109. deed of, on execution, 109. poundage of, 110. Shipping 25& bills of lading, 42. liability of ship-owner, 48. carriage of goods on deck, 152. liability for defects or obstructions in, 198.^ Signature. of wUl, 281. Silence. effect of, to raise estoppel in pais, 102. when fraudulent, 125. Slander 257 Societies and associations 257 joint stock companies, 160. religious societies, 246. i^edal damages. when recoverable, 80, 257. Special guardians. appointment and powers of, 139. Special proceedings 258 review of, by Court of Appeals, 15. courts of, 77. Special verdict. form and sufficiency of, 270. Specific performance 259 State, I. Genekal Pkikiples 259 II. CoNTBACTS WITH THE State 260 effect of state lines on jurisdiction, 166. naturalization by courts of, 52. decisions of courts of, when followed in U. S. courts, 75. insurance department, assignment of mort- gages to, 157. set-off" in action against, 254. personal service of process out of, 69. Statute of froMds. as to contracts, generally, 57. requirements, of, in respect to guaranties,, 128. as to sales of chattels,. 249. Statute of limitations. See Limitations of Ac- tions. 476 STATUTES— SURETIES. statutes. I. Constitutionality. Validity... 260 II. Interpretation AND ErFECT 260 III. Repeal; and its Effect 261 concerning revival of actions, 1. advancements, 5. city of Buffalo, 46. restrictions on banking, 36. concerning individual liability of stock- holders, 66. security for costs, 72. the recording acts, 189. •changing rate of interest, 159. regulating exercise of right of eminent domain, 54, 97. presumptions as to laws of other states and countries, 103. adm'issibility of, in evidence, 108. authorizing sales of land by personal rep- resentatives, 116. giving civil action for causing death, 133. married women's acts, 135. laws relative to summary proceedings by landlords, 169. of limitations of actions, 174. laws relating to insurance department, 157. excise laws, 176. mechanics' lien laws, 47, 183. lown bonding acts, 197. relating to railroadsj 236. giving liens upon vessels, 256. of uses and trusts, 274. Stay of proceedings 261 on appeal, 11. error, 100. for non-payment of costs, 74. by injunction, 141. Stenographers. liability of attorney for fees of, 31. .SiilweU act. arrests under, 21. ^Slipulations. on appeal, 18. vacating order of arrest, 24. estoppel by, 101. not to sue, 110. respecting referee's fees, 246. in leases, 170. JStock. defined, 85. issuing and dealings in corporate, gener- ally, 64, et seq. in telegraph companies, 265. contracts to speculate in, 59. Stockholders. in banks, 37. rights and liabilities of, generally, 65. individual liability of, 66. in foreign corporations, 69. Stockholders, (continued.) in manufacturing companies, 181. gas-light companies, 127. insurance companies, 155. joint stock companies, 160. liability of, to taxation, 262. Stoppage in transit. the right of, 250. Streets. dedication of, 83. paving contracts, 214. Strict foreclosure. when it lies, 191. Submission. to arbitration, 20. Svhpcena, duces tecum, 285. Svirogation. of surety, to position of creditor, 120. on administration bond, 120. guardian's bond, 130. for corporate stock, 65. what will discharge liability for, 65. by cities, in aid of railroads, 197. Substitution. of attorneys, 32. defendants, under code of procedure, 243. new trustee, 276. plaintiff; 217. Suit. See Action. Summary proceedings. to remove tenant, 142. Summmis. amendment of, 7. form and contents, generally, 231. in justices' courts, 166. powers and liabilities of, 266. Supplementary proceedings. contempts in, 55. proceedings in, generally. 111. Supreme Court. See General Term. original jurisdiction of, 75. appeals to, from County Court, 19. surrogate, 19. appointment of guardian by, 130. on undertaking on appeal, 19. of assignee for creditors, 26. on administrator's bond, 120. undertaking to discharge attachment, 29. contribution between, 230. of general guardian, 130. special guardian, 139. who are, nature of their undertaking, gen- erally, 230. exoneration ol^ 34, 129. for costs, 72. SURRENDER— TORTS. 477 Surrender. of principal, by bail, 34. Surrogated Oov/rts. appeals from, 19. power of, to grant allowances, 76. appoint guardians, 130. disqualification of surrogate, 77. enforcement of decrees of, 165. jurisdiction of, 75. to call personal representa- tives to account, 76. Survival. of causes of action, 2. Survivorship. of partner, powers and duties, 220. Suspension. of power of alienation, 282. corporate ofBcers, 68. Syraeiuse. decisions particularly applicable to, 201. Icucation. of costs, 73. Taxes. I. The PowEB TO Impose Taxes 262 II. Who mat be taxed, and eob WHAT PbOPERTT. EXEMPTIONS, 262 III. Assessment and Collection 263 IV. Sale op Land pob Non-Payment. Tax Titles 264 V. Eemedies pob Illegal Taxation, 265 stipulations in lease respecting, 170. recovering back, 186. in Buffalo, 47. Telegraph companies 265 Tenants. by the curtesy, 80. in dower, 94. for years, 167. Tenants in common 265 partition between, 217. Tender 266 of mortgage debt, effect of, 194. TenriiruUion. of prosecution, to give action for malicious, 177. Testamentary eapaeity. in general, 281. Theft. See Laecent. defined, 86. Threats. contracts induced by, 60. Tickets. on railroad, stopping over, 238. Time. , - ■ o to apply for revival of action, I. of occupation, to give title by adverse pos- session, 6. to take an appeal, 11, 12. amend pleadings, 7. sue for attorney's fee, 33. of delivery by carrier, 48. Time, (continued.) to apply for certiorari, 49. serve order to show cause in proceeding* for contempt, 56. for performance of contract, generally, 57, of death, proof of, 152. to sue for false imprisonment, 121. personal representatives, 119. for causing death, 133. to redeem from execution sale, 109. issue execution against person, 110. serve proofs of loss, 146, 149. pay premiums, 151. sue on insurance policy, 153. file executor's account, 118. mechanics' lien, 184. enforce justice's judgment, 167. move to vacate local assessments, 196. of payment of legacies, 172. what lapse of, creates bar to action, 175. when statute of limitations begins to run,. 175. to make motions, 195. demand payment of promissory note, 234. demur, 225. for referee to report, 245. when title passes, 249. to apply for removal of cause, 247. redeem from tax sale, 264 when a will takes effect, 283. IWe. who may acquire, by adverse possession, 5- what passes by assignment for benefit of creditors, 26. transfer of, by bill of lading, 42. proceedings to remove cloud on, 52. costs in actions raising questions of, 70. what will pass by devise, 90. sufficiency of, to support ejectment, 96. admissibiEty of admissions and declarations- respecting, 106. what passes on execution sale, 109. compelling purchaser at judicial sale to take, 193. plea of, in justice's court, 167. of assignee of mortgage, 190. local statutes, requisites of, 54. statute, reference to, 260. to office, proceedings to try, 236. of purchaser of chattels, 249. plaintiff in replevin, 247. when passes, in sales of chattels, 249. to land under water, 242. of purchaser at tax sale, 264. what necessary to support trover, 273. remedy of purchaser for defects in, 279. Torts. arrest in actions for, 21. assignability of causes of action for, 25.. burden of proof in actions for, 104. 478 TORTS— UNDUE INFLUENCE. Torts, (continued.) when statute of limitations begins to run in cases of, 175. of servant, liability of master for, 181. new trial for excessive damages in actions for, 205. parties in actions sounding in, 216. Total loss. abandonment for, 153. Tov/ing. contracts for, generally, 256. Towns • 266 powers of, to contract for building bridges, 45. liabilities of, respecting bridges, 45. Trademarks — 267 enjoining infringement of, 142. Trades-vmions. validity of acts of members, 258. Transfers. in &aud of bankrupt act, 36. of bills of exchange, 41. checks, 51. corporate stock, 64. title to personal property, 249, et seg. interest by insured, 147. promissory notes, 233. non-negotiable notes, 234. Treasurer. of county, 74. Treaties. descent to aliens under provisions of, 89. Trespass 268 by animals, 8. enjoining repetition of, 142. measure of damages in actions for, 81. Trial. I. Mode of Tbial. Whetheb by JUBT oa BY COUET 268 ,11. Place op Trial; and how Changed 268 III. Bbinging on the Tbial. The Calendab 269 IV. Impaneling the Jtjey 269 V. Conducting the Trial 269 VI. Instbuctions to the Jitby 270 VII. The Veedict oe Finding 270 VIII. Trial in Ceiminal Cases 271 byjury,54,217. place of, 180. allowing amendments during, 7. discretionary powers of judge, 2, 14, 15. what objections must be made at, 10, 12, 17. necessity of taking exceptions on, 10, 15. compelling attorney to produce papers, 89, 91. of Signed issues, 99. ' equity causes, generally, 98. Trial, (continued.) use of photographs as evidence, 103. exhibiting injured limb to jury, 203. rule requiring best evidence, 103. what is part of res gestce, 104. burden of proof, 104. taking exceptions on, 108. in murder cases, 132. of issue, on inquisition of lunacy, 144. in justice's court, 167. error on, when ground for new trial, 205. admissibility of evidence under pleadings 226. what questions are for the court, 235.. jury, 235. mixed questions of law and fact, 235. by referees, 244. rules of examination of witnesses, 288. Trover. I. When it LIES 273 II. PEOCEDtTEE 273 conversion by bailee, 35. measure of damages in, 81. between tenants in common, 265. Troy. decisions particularly applicable to, 201. Trustees^ of corporations, generally, 68. savings banks, 40. manufacturing companies, 178. appointment, powers, and duties, generally, 275. Trusts. I. Cbeation and Dubation. Inter- PBETATioN, Validity, &c 274 II. TheTeustee 275 in. Eights and Eemedies op Cestuis QUE Teust 277 removal of trustee by surrogate, 76. time to sue to enforce, 175. Turnpilce companies 277 Ultra vires. what contracts are, 67. UndeirtaJnngs. on appeal, 10, 11. arrest, 22. to procure discharge from arrest, 22. discharge attachment, 29. enforcement of bail-bonds, 34. appeal-bonds, 19. security for costs, 72. what are original, under stati^te of frauds, 128. on injunction, 142. claim and delivery, 247. Undue influence. when avoids contract, 60. contesting will for, 285. UNITED STATES— WAIVER. 479 United States. following decisions of courts of, 75. jurisdiction of courts of, 75. counter-claims in actions by, 254. judgments of courts of, 166. Usage. See Custom : Usage. Uses. See Trusts. Usurpation. of office, 236. tisury 278 in bank loan, 38. effect of law of place, 234. as a defence in foreclosure, 191. , in actions on promissory notes, 284. Vacating. orders of arrest, 22, et seq. warrants of attachment, 29. contempt proceedings, 56. taxation of costs, 73. levy, 110. execution against the person, 110. injunction order, 143. inquisition in lunacy, 144. order of reference, 245. judgment, 165. judicial sale, 166. foreclosure sale, 193. mandamus, 178. assessments for local improvements, 196, 210. Vagrancy. prosecution for, 79. Validity. of award of arbitrators, 20. assignments, generally, 25. for benefit of creditors, 26. bail-bonds, 34. town bonds, 44. chattel mortgages, 50. contracts, generally, 59. subscription for stock, 65. composition deeds, 82. ordinary deeds, 84. levy of execution, 109. ^ale on ex^ecution, 109. letters of administration, 113. highway assessments, 131. executor's sale, 114. gift, 127. marriage, 134. discharge in insolvency, 145. legacy, 172. ' mortgages, 187. assignment of mortgage, 190. foreclosure sale, 192. railroad leases, 236. sales of personal property, 249. Validity, (continued.) of trusts, 274. contracts for sale of land, 279. wills, 282. Value. of unmatured life policy, 157. death claims, 157. annuity bonds, 156. what is parting with, 233. taxable, 264. admissibility of opinions on questions of, 290. Vendor and purchaser 279 requisites of the contract under the statute of frauds, 58. law of fixtures, as between, 123. rights of purchaser of mortgaged premises, 188. when specific performance will be decreed, 259. place of trial, and how changed, 180. amendment after, 8. direction of, 270. Verification. of annual report of manufacturing com- pany, 180. pleadings, 226. presumption as to nationality, 103. Vexatiaiie suits. remedy for wrongful attachment, 30. for malicious prosecution, 177. Villages. See Municipal Cobpobations. Violation. of injunction, punishing, 55, 143. Voir dire. examination of juror on, 271. Voluntary. conveyance, when fraudulent, 126. payment, 186. Votes. receiving and rejecting, 97. Wagers. bet, or wager, defined, 85. contracts in nature of, 59. Wages. of servants, generally, 181, 252. actions to recover, 252. Waiver. of matter in abatement 1. effect of appearance as, 4. of right to appeal, 8. want of jurisdiction, 166. strict performance, 61. 480 WAIVEE— YEAR. Waiver, (continued.) of conditions in insurance policy, 146, 153, 155. by agent, 146, 155. preliminary proofs of loss, 146. statute of limitations, 175. right to trial by jury, 268. enforce bond for costs, 72. War 280 Ward. See Guabdian and Waed. Warrants. for collection of tax, 264. of arrest, in criminal cases, 24. extradition, recitals in, 120. arrest without, 24. Warranty. in insurance polity, 148, 152. on sales of chattels, 250. Waste. by mortgagor, restraining, 192, Water-courses 280 enjoining diversion of, 185. right to dam, and liability of owner, 248. natural flow of, 248. West Tray. decisions particularly applicable to, 201. Wharves. regulation of, in New York city, 206. Widow. articles set apart to, 113. right of, to dower, 94. Wife. See Husband and Wife. Wills. I. The Power to Ma-ke a Will; AND How EXEBCISED 281 n. Pboving a Will 281 ni. Validity 282 IV. Law OF Place 282 V. Intebpbetation and Epfect 282 VI. Contisting a Will for Incapa- city OR Undtte Influence 285 probate of, in surrogate's court, 76. provisions in lieu of dower, 94. parol evidence to explain, 105. devises in, 90. sale under power in, 114. appointment of guardian by, 130. particular words and phrases in, 84-87. Winding up. See Dissolution. Withdrawal. of demurrer, 225. counter-claim, 270. Witnesses. I. Attendance and Compensation, 285 II. Competency 286 III. Credibility 287 IV. EuLES OF Examination 288 V. Opinions OF Experts AND Others, 290 taking depositions of, 87. examination of parties before trial, 88. privilege to refuse to answer, 89. proof of handwriting by, 107. in supplementary proceedings. 111. taxation of fees of, 73. subscribing, to wills, 281. Wordx and phrases. See Definitions. Writing, assignment without, 25. written words prevail over printed, 58. parol evidence to vary, 104. Writ of error. See Ebbob. Writs. when certiorari will lie, 49, of error, 100. execution, 109. habeas corpus, 131. injunction, 140, et acq. mandamus, 177. ne exeat, 201. prohibition, 232. Wrongful levy. liability of sheriff for, 254. liability of corporations for, 67. measure of damages in actions for, 81. burden of proof in actions for, 104. when statute of limitations begins to run, 175. by servant, liability of master for, 181. liability of municipal corporations for, 198, 214. new trial for excessive damages in actions for, 205. . of agent, when principal liable for, 229. Year. contracts not to be performed within a, 57..