for the City and County of New York, of the respective parties, and of all issues without an order of the court. in this action, and report the same, with his opinion thereon, to the court," en Krekeler v. Thaule. N. Y. Common Pleas, Sp. T., May, tered on a consent to an order of reference 1875. to take proof of all the allegations of the respective parties, and report, are amendable. Such a reference is unauthorized, A Reference of proceedings to foreclose me- when issue is joined. For such irregchanic's lien, when and how to be ularities, or for the admission of immade. proper testimony from the husband, or III. J. F. Daly, J. A reference of the for a decree objectionable in form, the proceedings to foreclose a mechanic's lien, party alleging the injury from these by the Laws of 1863, Ch. 500, Sec. 7, must things, must make his motion to set the be of the whole matter. After the court decree aside at the first opportunity. has commenced the trial there is no motion to set aside a judgment for irreg power to send the case to a referee to take ularity must be made within a year, and and state the account between the parties. so must a motion to open a judgment The whole case must be tried by the when addressed to the equitable discretion of the court, when the judgment is not void. The order and consent are amendable. court. Sheahy v. Tomlinson. N. Y. Common Pleas, Sp. T., May, 1875. Order of reference and consent amendable. Motion to set aside decree for admission of improper evidence, and for objectionable decree, to be made in a year-Di vorce. IV. Motion to set aside decree of divorce for irregularity in the order of reference, for admission of improper evidence, and for an objectionable de cree. V. Motion to punish defendant for contempt in disobeying an order in supplementary proceedings to appear and be examined as to his property. Defendant did not appear to be examined on May 15, 1875, in obedience to order. An order to show cause why he The divorce was obtained in April, 1870, and, two days afterwards, the defendant saw the announcement in the daily papers that the divorce was granted for should not be punished for contempt, readultery. She moves, five years later, to turnable May 19, 1875, was served on May set aside the decree for irregularity in the 17, 1875. On May 18, 1875, defendant proceedings. The explanation of the filed his petition in bankruptcy, and prodelay is that her husband agreed to supcured an injunction staying the prosecuport her, which he did until about a year tion of the supplementary proceedings. since. He married a few days after the divorce was obtained. Held. J. F. Daly, J. 1. The decree should not be opened, the laches not being justified. 2. The irregularities of entering an order to take proof of all the allegations | 66 Held. J. F. Daly, J. The defendant is in contempt, and is fined $30, costs of plaintiff, and disbursements of these proceedings. Spaid v. Hage. N. Y. Common Pleas, Sp. T., May 22, 1875. New trial on ground of newly discovered evidence. What is not newly discovered evidence. Issues not raised on trial, effect of. VI. Motion for a new trial on the ground of newly discovered evidence. VIII. Speir, J. On a second trial in ejectment, under the statutory favor, the defendant having been beaten on the first trial, and in which the defendant succeeded, he cannot have the costs paid by him on the first trial taxed. The payment of those costs was a condition to be performed before the Statute permitted him to try again. Carnes v. Platt. J. F. Daly, J. 1. Where no issue has been raised by the pleadings as to who was the real party in interest, and when no evidence was given on that point, the confessions or declarations of plaintiff, since the trial, that he was not the owner of the claim, do not affect the questions tried and disposed of by the jury, and, at most, only go to impeach his testimony. It is Appointment of receiver. What must be well settled that a new trial will not be N. Y. Superior Court, Chambers, July 13, 1875. shown. granted if the newly discovered evidence. IX. Donohue, J. The arbitrary ap consists of an attempt to discredit a wit-pointment of a receiver will not be made ness who testified on the trial. 2. The testimony of a witness known to the defendant before the trial, and whom he could not find to subpoena, is not newly discovered evidence. Ranous v. Trageser. N. Y. Common Pleas, Sp. T., 1875. Injunction against actual occupant of office by claimant of that office, to restrain use of book of deposits, will not be granted, when. a VII. Plaintiff moves as President of charitable association for an injunction to restrain defendant from disposing of the pass-book of the deposits of the association. The defendant, custodian of the pass-book, is in actual occupancy of the office of President of the association. Held. Sedgwick, J. That the plaintiff, who does not sue as an individual, but as representing the association, has no cause of action on these facts. Davis, as Prest. v. Helm. on the mere right of a party to a final recovery. It must be shown that leaving the property with the opposite party will involve loss. Wilkenson v. Hawley. New York Supreme Court, Chambers, N. Y. Superior Court, Chambers, Aug. Injunction-restraining the building of 2, 1875. Costs of first trial in ejectment not to be paid back to party who succeeds on second trial. Statute. road-necessity of having complaintdelay in building, who can take advantage of it. Motion of plaintiff to restrain defendant from building road, etc. andamus. District Court. Motion to remove Cause. Appeal. XIV. Barrett, J. Mandamus will not XI. Brady, J. 1. The only sound practice is that an injunction will not be granted without a complaint showing that the plaintiff is entitled to the relief be granted to the Justice of a District demanded. Scc. 219 of the code ex-Court of the City of New York, who has pressly so declares. The cases in opposi- proceeded with a cause after a bond for tion merely turn an affidavit into a com- the removal of the action to the Court of plaint, and so assent to this view. Common Pleas was offered for approval. entation of the bond. IIe could not 2. When the locus in quo can satisfy the real rights of both parties, an injunction will not be granted to restrain the exercise of the right of a party. 3. The delay in procceding to build hold jurisdiction by permitting the the road cannot be taken advantage of by any party but the People of the State. the motion to remove. amount sued for to be reduced pending 4. Plaintiff has not built its road in One surety was approved, and the adjournment was made that another surety might be got in place of the one not approved. This held the motion pending. conformity to decision, else there would be no trouble. The Central Crosstown R. R. Co. of N. N. Y. Supreme Court, Chambers, July The People of the State of New York ex rel. v. Fowler. N. Y. Supreme Court, Chambers, July 17, 1875. Reference, when denied, construction of Introduction of documents. Solicitor's papers. XII. Brady. A reference will be denied where it is conceded that the right of plaintiff depends on the construction of papers creating a trust. Gautier v. The Douglass Manuf. Co. Bankruptcy Act. Exemption of judgment for fraud. Fraudulent disposition of property not within the exemption. XIII. Westbrook, J. To bring a judgment within the exemption of the Bankrupt Act, the debt must have been contracted through fraud as the instrument. A fraudulent disposition of property is not within the exemption. Phenix Park Coal Co. v. Schoeper. lien. amount of XVI. Motion to reduce bail of $75,000, where $67,854 is claimed in the complaint. Held. Davis, P. J. The general rule, which is not to be departed from without good reason, is, that the bail under an order of arrest shall be the amount claimed in the complaint, which must be assumed to be true for the purposes of fixing the amount of bail, and an amount will be added to that sufficient to cover costs and interest. Belloni v. Nathan. TRUSTS. Resulting trust, presumption of. Ademption considered. Parol evidence as to will. The testatrix in this cause bought stock, both before and after making her will, and had it transferred to herself and defendant, who was her executor, and who had been brought up in her family, being the son of her daughter-in-law, by her second husband. There were several such purchases and transfers, until the sum amounted to £7,000. On the death of testatrix, defendant had the stock N. Y. Supreme Court, Chambers, July transferred to his own name. The par 16, 1875. ties interested filed a bill to determine whether defendant was entitled to the stock as a gift, and defendant deposed that the sum was a gift, in which he was Divorce. Referee's fees, attachment for. corroborated by his wife and two ser When and how to issue. XVII. Where the referee finds, in an action for divorce, for the wife, and the husband will not take up the report, the proper course is for the wife to take it up, and then to apply to have the amount inserted on an application for alimony and expenses of the suit. On that an attachment will issue. The application to the court to direct plaintiff to pay referee's bills, and, in default, to attach him, is unusual, and I am unwilling to grant it. Heatherton v. Heatherton. N. Y. Supreme Court, Chambers. July 27, 1875. Extra allowance. To what extent given. XVIII. Barrett, J. An extra allowance will not be made based on the value of the services of counsel of successful party. The court will fix a reasonable sum to be contributed to counsel fees. Seaver v. The Mayor, etc. of New York. vants. Defendant was a legatee of the residuary estate under the will. Held, 1. That the presumption of a resulting trust to testatrix is satisfactorily rebutted by defendant's evidence. 2. That there is no ademption or partial satisfaction of the share of defendant in the residue under the will, for such holding would be to change the will by parol evidence. Fowkes v. Pascoe. Law Reports, 10; Chancery Appeals, Opinion by James and Mellish, L. J. J. USURY. Foreclosure of mortgage. Securities given in payment of consideration in mortgage not a sale, but their value or proceeds the consideration of the mortgage. This was an action brought to foreclose a mortgage executed by defendants, S. and wife, who set up the defence of usury. The case was tried before a referee, who found that S. H. S., a son of S. and wife, applied to plaintiff for a loan of $5,000; that plaintiff informed him that his fendant had returned the property, or that his possession had been interfered with, or that any recovery had been had against him, or that he had paid the claimant of the property anything. There was no finding by the referee of fraud on the part of plaintiff. The referee reported in favor of the plaintiff, and judgment was entered in pursuance thereof. money was all invested in railroad bonds; fillment of the lease. The lessee was in that S. II. S., having ascertained that he default $800. It did not appear that decould raise money on these bonds, spoke to plaintiff, and the latter agreed to let him have five $1,000 bonds, that being their par value, though not worth, at the time, more than eighty cents on the dollar, for a mortgage, executed by S. and wife, on their farm, for $5,000, the par value of the bonds, and $375 added as prospective taxes which plaintiff might be called upon to pay upon said mortgage. Held, That in the absence of fraud deThe bonds were subsequently sold for fendant could only rely upon an implied eighty-five cents on the dollar. The warranty of title, the effect of which was referee found that the transaction was a to guarantee him against eviction or insale, that the mortgage was not usurious, jury from other parties; and as neither and ordered the usual judgment. Held, That a loan was clearly intended under the form of a sale, and the transaction was usurious. Quackenbos, applt., v. Sayer et al, N. Y. Court of Appeals. Opinion by appeared in this case, defendant had not established a defence, and plaintiff was entitled to recover. McGiffen, respondent, v. Baird, appel- N. Y. Court of Appeals. WARRANTY. Title of vendor. Absence of fraud. Eviction or injury must be shown to defend suit for purchase-money. WILL. Designation of a class of beneficiaries. E. B., a widow, by her will made in 1869, gave the residue of her personal estate to her executors, in trust, to conThis action was brought to recover the vert the same into money, and to hold purchase price of ten calves, sold by plain- the proceeds in trust for all the nephews tiff to defendant. The latter set up as a and nieces in the first degree of relationdefence the fact that plaintiff did not own ship to her late husband who were living the calves at the time of the sale; that at the time of his decease, excepting two of they belonged to one M., who had claimed them by name, in equal shares as tenants the price of them from defendant. The in common. Testatrix died in 1872. At case was tried before a referee, who found the time of her husband's death there that plaintiff's father leased a farm from were nine nephews and nieces who anM., with a number of cows, and that swered to the description in will, besides nine of the calves in suit were the the two who were excepted. Of these offspring of these cows. That the sale one nephew died in 1868 before the date was made without M.'s knowledge. of the will, and another in 1872 during That the calves were sold by the lessee to the life of testatrix, but after the date of plaintiff, who sold them to defendant. the will. A suit was instituted by the exeBy the terms of the lease it was mutually cutors and trustees as to the division of agreed that the lessor should hold all the the residuary fund. The next of kin products of every description for the ful-contended that it should be divided into |