part of the plaintiffs a waiver of per- Plaintiffs in error offered no testimony formance on the part of the defendant; in defence, but moved the court to 14 J. R., 330; 20 J. Ch., 406; 7 Cow., instruct the jury that the prosecution 48; and that, therefore, plaintiff was not had not made out a case. Motion denied. entitled to recover. The Recorder, in charging the jury, in Judgment of the General Term, affirm-structed them that if Kraft and Weyman ing judgment for defendant, at Circuit, affirmed. Opinion by Earl, J. CRIMINAL LAW. GRAND LARCENY. N. Y. SUPREME COURT-GENL TERM, FIRST DEPT. had written the order with the intention of feloniously converting the property to their own use, they were guilty of grand larceny, to which exception was taken. Held, That it was proper to show that goods had been obtained at the same time from other parties, for the purpose of showing that Kraft and Weyman were partners in crime, and also to show the intent with which the goods were ob Kraft, pltff in error v. The People, tained. That the admissions testified to defts in error. Decided December 6, 1875. by officer Walling were competent, and that it was for the jury to determine Persons obtaining goods, which are to be whether they related to the same goods returned if not sold, and with the pur-referred to in the indictment. That the pose to appropriate them to their own Recorder's charge as to the prisoners' use, and so appropriating them, commit intent in writing the order was compe larceny. It is competent to show that the accused obtained other goods of other parties than those charged in the indictment to show the intent, and to show them partners in crime. Writ of error to the General Sessions of the City and County of New York. Kraft and one Weyman were engaged in the business of manufacturing jewelers in New York City. It had been their habit to write orders, on different dealers in jewelry, for such pieces of jewelry as might be wanted by any particular customer, and which they themselves could not supply. If the customer did not buy, the jewelry was to be returned. Orders were remitted on K. & D., manufacturing jewelers in said city, on which a number of bracelets were obtained, with which Kraft and Weyman absconded. Evidence was admitted, under exception, showing that jewelry had in like manner been obtained from other parties; also that Kraft had made admissions to officer Walling, who arrested him, as to the goods obtained here, their sale, and the price obtained. tent. If the order was written for no such object as it purported to be, but solely to obtain possession of the goods, that Kraft and Weyman might feloniously appropriate them, then they intended to steal, and it is clearly evident that they were, in fact, guilty of stealing. Conviction affirmed. Opinion by Westbrook, J.; Davis, P. J. and Daniels, J., concurring. EMINENT DOMAIN. N. Y. COURT OF APPEALS. In the matter of the New York Cent. Decided December 7, 1875. Such improvements may be a public ne- corporation, because it supplies a mu- less a public necessity. Rens. and Sar. nicipal corporation with gas. R. Rles. v. Davis, 43 N. Y., 137 distin The defendant is a private manufacturing corporation, which furnishes gas to individuals, and for lighting the streets upon such terms as it can make. This was a proceeding for the appoint-guished. ment of commissioners to appraise the Also, held, That the lands of a corcompensation to be made to the appellant, porate body may be appropriated for a gas light company, organized under public use for railroad purposes, under chap. 545, Laws of 1855, as owner of the right of eminent domain, upon the certain real estate in New York City. same principle that private property is The petitioner is a railroad company. condemned and taken. 42 Barb, 119; The statute under which the proceed- 6 How, U. S., 507; 3 Bland Ch; (Md.) ings were instituted (S. L. 1869, chap. 237, 442; 21 Vt., 590. sec. 1) provides; that the land sought to be acquired, must be "for purposes of the incorporation, or for the purpose of running or operating the road" of the petitioners. From the testimony, it ap- Held, That this of itself does not make peared that the petitioner has not suffi- it a public corporation; it is not such, cient facilities for the delivery of grain merely because it is of a public character, and live stock, transported over its road, 3 Harr, (18 N. Y.,) 200; 2 Dutch, at its terminus in New York City; that (N.J.) 148. its increasing business demanded more Order of General Term, affirming order extensive accommodations by adding to of Special Term appointing Commisits real estate; that with its existing sioners, affirmed. property, it lacked facilities to meet the demands of the public, and to transact its business with proper expedition; that the land it sought to acquire was not more than adequate for the purposes, and that it lies adjoining the petitioner's property, and is necessary for the purpose of laying tracks to enable it to reach its stock yards and river fronts, and to render these advantageous and convenient. Held, That upon the facts presented, it appeared that the acquisition of the land was necessary and proper, and demanded for the legitimate purposes of the corporation, within the provisions of the statue. 46 N. Y., 552; 53 id, 574. Opinion by Miller, J. EQUITY-APPEAL. N. Y. COURT OF APPEALS. The Equitable Life Assurance Society of the United States, respt. v. Stevens et al. extrs., etc., applts. Decided December 7, 1875, The question of the power of the court below is appealable, The granting of an application for leave to sue for a deficiency, is within the discretion of the court below. By proceeding to foreclose, by such election, the plaintiff waives his right of a trial by jury. An omission to demand judgment for a deficiency, does not convert the action into a strict foreclosure, but is an action for the satisfaction of the mortgage within the meaning of the statute. That the fact that the proposed improvement may confer benefits and advantages upon business arising from structures which are really essential to the successful operation of a railroad, but which of themselves would not authorize This is an appeal from an order of the the appropriation of land to ensure their General Term, affirming "in all things" erection, within the rules applicable to an order of the Special Term, giving the exercise of the right of eminent plaintiff leave to bring an action on a domain, is not a valid objection, and bond for deficiency upon a sale of mortdoes not render the improvement any the gaged premises. The order declares that the application of the plaintiff is granted or a refusal of leave to sue, would not "solely on the ground that the court has deprive the obligee of his constitutional no power or authority to deny the same." right to a trial by jury of an action There was nothing in this case indicating upon the bond. If a personal judgment that the General Term exercised its dis- is demanded in the foreclosure suit, and cretion upon the equities of the applica- the defendant's liability is contested, the tion, and affirmed the order upon the mer-right to a jury trial upon this question, if its. Held, That the record simply presented the question of the power of the court below, and the order was reviewable in this court. it exists, can be fully protected by the court. If the plaintiff desires a trial by jury he can sue upon the bond in an action at law; if he elects that course, and proceeds to judgment, he cannot proceed with the foreclosure in equity until after the return of an execution in the action at law (2 R. S. 192, sec. 156). It was that a resort to equity should be a waiver of the right of trial by jury, so long as the suitor was not deprived of his election to sue at law. Also held, That the omission to demand judgment for a deficiency in the complaint did not convert the action into a strict foreclosure, but it was an action for the satisfaction of a mortgage within the meaning of the statute. (2 R. S. 191, secs. 152, 153). Order reversed and case remanded for re-hearing at Special Term. Opinion by Rapallo, J. The statute in pursuance of which the application was made provides: that when a bill is filed for the satisfaction of a mortgage the court shall have power competent for the legislature to provide to decree the payment by the mortgagor of any deficiency there may be after a sale of the mortgaged premises, and that "after such bill shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the Court of Chancery;" (2 R. S. 191, secs. 152, 153.) Held, That the court had the power, and it was its duty to take into consideration the circumstances and equities of the case, and to exercise a sound discretion in granting or refusing the application; that the effect of these provisions was to confine the mortgagee to his remedy in the foreclosure suit for the recovery of the deficiency, unless he obtains leave of the court to institute or prosecute a separate proceeding at law for its collection, and it was the policy of the statute to prohibit such proceedings. object of the statute was to compel the creditor to elect his tribunal and to protect the mortgagor from the unnecessary expense of proceedings in more than one tribunal, and where the mortgagee has voluntarily refrained from asking a decree for the deficiency in his foreclosure suit, some satisfactory reason should be assigned for permitting him to institute a separate action at law for its recovery. One The exercise of discretion by the court, EQUITY PRACTICE. N. Y. SUPREME COURT.-ULSTER The First National Bank of Rondout Decided November, 1875. A Judge holding Special Term has the power to adjourn it to his chambers, and a trial there had is regular. Motion to vacate a judgment rendered at a Special Term of this court, held at the Supreme Court chambers in the city of Kingston, on the 14th day of September, 1875, to which place and time it had been adjourned from the Ulster, April (1875) Circuit, pursuant to section 24 of the Code of Procedure. During the progress adjournment of the term to the chamof the action, and after issue joined bers of the Judge was irregular, and that thereon, the defendant Hamilton had the cause could not be tried thereat. instituted proceedings in bankruptcy, This and all other objections were overand they had progressed so far that Mr. ruled, and the trial was directed to proCarroll Whitaker had been appointed ceed. Application was then made to the assignee thereon. make Mr. Carroll Whitaker a party to Opinion, Westbrook, J.-This action the action, and for an adjournment of was brought to foreclose a mortgage the cause, as Mr. Whitaker on that day executed by the defendant, Hamilton, was professionally occupied. The applito the plaintiff. The defence was: First, cation was granted, and the cause was usury; second, that the mortgage sought postponed to the 14th day of September, to be foreclosed was for a present loan, 1875, at the same time and place. On and for that reason it could not be en- the adjourned day Mr. Whitaker did not forced. appear, but sent a note to the Judge The issues in the action were noticed, holding the term, that he was advised as is shown by the original notice pro- that the objections taken by Mr. Schoonduced upon the motion, "at the next term maker on the 11th day of September, of this court to be held at the Court were valid, and that he should not apHouse in the city of Kingston, in the pear. Neither did the defendant, Hamilcounty of Ulster, on the 12th day of ton, appear, although duly subpoenaed as April, 1875," which term thus designated a witness for the plaintiff, as was shown was the regular Ulster Special Term and to the court on that day. Circuit appointed to be held on that day The cause was then heard upon its and place. During the Circuit and merits, and it was proved that the mortSpecial Term, and prior to the adjourn-gage was given to secure a preceding inment of the latter to the Judge's cham-debtedness of Hamilton to the plaintiff, bers, this cause had been marked upon and that so far from the mortgage being the calender of the court as an equity usurious, it was given for a sum several cause, and during the term it was an- hundred dollars less than the amount nounced that when the jury business then actually owing to the mortgagee by was completed, the Special Term would the mortgagor. The amount due upon be adjourned to the Judge's cham- the mortgage was proved, and the ordibers in the same city, at which adjourned term this and other equity causes would be heard. No objection to this course was heard or suggested, and accordingly on the first day of June, the Special Term, by an entry on the minutes, was adjourned to the chambers of the Judge on the 3d day of June, and was continued by subsequent adjournment, similarly made, to the day of final trial. nary judgment or foreclosure and sale was rendered. This motion at the Special Term presents the identical questions which had previously been passed upon and adjudicated on the 11th day of September last; and the counsel for the plaintiff objects, preliminarily, that the error of a Special Term cannot be corrected by a motion made at another, but can only be remedied by an appeal. On the 11th day of September, 1875, when, according to the order of the court, I confess I do not see how the objecthis cause was to be taken up, Mr. A. tion can be overcome. The points now Schoonmaker, Jr., appeared for the as- made have been determined, and until signce in bankruptcy, and objected to reversed by a superior tribunal, such deany further proceeding in the cause, termination is conclusive upon the parupon the ground, among others, that the ties. It it well settled that a motion once heard and determined cannot be and held at the town hall in the village renewed without leave, and the reason of of Saratoga Springs, by Mr. Justice that rule applies in full force. The ex- Bockes, on the 9th day of July, 1872. act form of the motion may be different, On that day, another Special Term was but the questions are identical. The also held in another room of the town estoppel depends not on the form of the hall, by Mr. Justice James, he having presentation, but on the presentation, adjourned the Ballston Special Term of without leave, of the same questions once May to that time and place. The action decided. There must be an end of dis- was at the suggestion of Mr. Justice cussion and litigation in the same tribu- Bockes, the defendant's attorney assentnal at some point, and practice and ing thereto, tried before Mr. Justice common sense insist that a decision of James. A motion was made to set aside the question shall end proceedings before the judgment as irregular for the reason, and in the tribunal which decides. A among others, that the term, at which contrary conclusion leaves parties the the cause was heard, was irregular. An helpless subjects of endless litigation, and order denying the motion was sustained violates the spirit if not the letter of rule at the General Term. On appeal to the 31, which prohibits a party from apply- Court of Appeals the General and Special ing to another judge for an order which Terms were sustained, and the decision, on the same facts was refused. As special though not yet reported, will appear in terms held by various judges are numer- 59th New York Reports, page 629. ous, the practice of applying to a new special term to relief, which a prior term of equal authority has refused, would become intolerable, if encouraged-as intolerable as that guarded against by the rule to which we have referred. It is true that this motion is at a term held by the same judge who denied the former, but if he decided that the motion is regular, then any special term in the district, or in a county of the district adjoining Ulster, can grant the relief, and the result will be motion after motion to correct alleged errors of a special term by the action of another. This should not be encouraged, and the preliminary objection is sustained. It is true that in White v. Coulter consent to the trial was given, but we fail to see that this makes any difference. If that was not a court, which Mr. Justice James professed to hold in July, 1872, at the village of Saratoga Springs, by force of the adjournment from Ballston in May previous, then the consent of the parties could not make it one. The judgment could only be upheld by the conclusion that the court which Judge James supposed he held was such proprio vigore. But the element of consent, if that be necessary, is not wanting in this case. When the court announced its intention to adjourn the Special Term to the chambers of the judge holding it, The power, however, of a Judge hold- for the purpose of trying this and other ing a Special Term to adjourn it to his causes, the objection should then have chambers, is so valuable and convenient been made. An objection after the adto parties and to the court, in the admini-journment is ordered comes to late to be stration of justice, that it should be up- available, if regularity depends on conheld, if possible; and this consideration sent. induces us to examine the question of the regularity of the trial. In White v. Coulter (8 Supreme Court Reports, New York, 1 Hun, page 357) the cause had been noticed for trial at a regular Special Term, duly advertised It is scarcely, however, necessary to argue this question. The statute is too clear to misunderstand. Prior to the year 1862 the code (section 24) provided, "The places appointed within the several counties for holding the General and |