FIRST DEPARTMENT, OCTOBER TERM, 1886. The People of the State of New York, Appel- The People of the State of New York, Appellant, v. John G. Clark, Respondent. - Judg ment and order denying new trial affirmed, with costs. Opinion by Dykman, J. The People of the State of New York, Appellant, v. James Titus, Respondent. - Judg. ment and order denying new trial affirmed, with costs. Opinion by Ďykman, J. FIRST DEPARTMENT, OCTOBER TERM, 1886.* Matter of Alma Nichols. -Order reversed and | petition remanded. Opinion Per Curiam. John F. Klumpp and another, Respondents, v. Guy H. Gardner, and another, Appellants. Order affirmed, with ten dollars costs and disbursements. Matter of Susan A. Place, deceased. Order affirmed, without costs. Opinion by Daniels, J. William H. Catlin and another, Respondents, v. The Adirondack Company, Appellant. Order affirmed, without costs. - Opinion Per Curiam. The People of the State of New York v. Universal Life Insurance Company. - Order affirmed, with ten dollars costs and disbursements. Thomas D. Reilly, Appellant, v. The Press Publishing Association, Respondent.- Order affirmed, without costs. Anna Borkel, Appellant, v. Samnel S. Mulford, Respondent.-Order modified by requiring the defendant to stipulate that the deposition of witnesses, residing in New York and Pennsylvania, may be taken on ten days'notice before James J. Nealis, referee, and to be read on the trial to the same effect as though the witnesses were personally present, and as modified affirmed, without costs. James Cassidy and another, Plaintiffs, v. Henry Gottgetrue, Assignee, etc., Defendant. Order modified by directing that the judgment and report of the referee be opened so far as to allow the respondents to appear, upon notice to the appellants and to the several other parties to the judgment, before the said referee, and give any testimony tending to increase the claim which the referee has allowed in their favor, and to diminish or affect the debt allowed to the plaintiff and any other creditors in the actions, and on the coming in of the report of the referee to raise any question as to the costs and allowances appearing in the judgment, and as to the amounts awarded to any of the parties. The costs of such new hearing and proceeding before the referee and of the judgment and of this appeal to abide the event. Michael Snow, Respondent, v. The Russell Coe Paul Krotel, Receiver, etc., Respondent, v. Margaretha Finnern and others, Executors, etc., Respondents, v. Julius Hinz and others, Appellants. Judgment reversed, new trial or dered, costs to abide cvent. Opinion Per Curiam. James Naser and another, Respondents, v. The Peter Suan, Respondent, v. George Caffe and another, Appellants. Judgment affirmed. Opinion by Davis, P. J. William Neidlinger, Appellant, v. John E. Mc- The People of the State of New York er rel. Josephine M. McBride, Respondent, v. Robert Isaac S. Enyard and another, Respondents, Edward Wood, Appellant, v. Karoline Kroll and The Congregation "Hand in Hand," Appellant, J. Lippit Snow and another, Appellants v. Eli ments. Caroline L. Merchant, Appellant, v. Joseph Eick- James C. Seymour, Appellant, v. The Castner Leonard Lewisohn, Respondent, v. Bertram The People of the State of New York ex rel. H. Decisions handed down December 31, 1886. Decree af FIRST DEPARTMENT, OCTOBER TERM, 1886. Robinson Consolidated Mining Company, v. William H. Craig and another. Motion denied without costs. Opinion by Daniels. J. Theodore F. Reed, Appellant, v. Isaac W. Edsall, Respondent. Order affirmed, with ten dollars and disbursements. Levi M. Bates and others, Respondents, v. Hiram Jones and another, Appellants. -Order affirmed, with ten dollars and disbursements. Kate Hogan, Administratrix, etc., Appellant, v. David Henderson Respondent. Motion den.ed, with costs. Opinion by Daniels, J. Charlotte A. Wakeman, v. George H. Everett. -Motion for reargument denied. The Bowery National Bank, Respondent, v. The Mayor, etc., of the City of New York, Appellants.-Order reversed, with ten dollars costs and disbursements, and order entered as directed in opinion. Opinion by Daniels, J. Josephine Koush, Respondent, v. Joseph Ketzlik, Appellant. Judgment affirmed, with costs. Opinion by Brady, J. The Electrical Supply Company, Respondent, v. The Jersey City Electric Light Company, Appellant. Judgment affirmed. Opinion by Davis, P. J. William Morris, Appellant, v. Emily W. Emmons Respondent. Judgment affirmed, with costs, and with liberty to plaintiff to reply. Opinion by Brady. J. Jane H. Cowdrey, Executrix, etc., Appellant, v. Ambrose K. Ely, Executor, etc., Respondent. Judgment affirmed. Opinion by Davis, P. J. Levi M. Bates and others, Appellants, v. John C. McNulty, Respondent. Judgment affirmed, with costs. Opinion by Daniels, J. John Hancock Mutual Life Insurance Company, Respondent, v. Julius Loewenberg, Appellant. Judgment affirmed, with costs. Opinion by Brady, J. The People of the State of New York ex rel. Annie M. Hoffman v. The Board of Education, etc. Proceedings affirmed, without costs. Opinion by Daniels, J. Anna A. Baird, Appellant, v. Elizabeth M Richardson and another, Respondents. - Judgment affirmed. Opinions by Brady, J., and Daniels, P. J. In the Matter of Mary E. Hines. - Order modified as directed in opinion, and aflirmed as modified, without costs to either party. Opinion by Davis, P. J. James D. Brewster and others, Appellants, v. Walter T. Hatch and others, Respondents Judgment affirmed. Opinion by Davis. P. J. The People of the State of New York, Respondent, v. John McGrath and Mary McGrath, Appellants. Judgment reversed, new trial ordered. Charles L. Weller, as Receiver, etc., Respondent, v. J. B. Pace Tobacco Company, Appellant. Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J. Minna De Kay, Appellant, v. Charles H. Bliss and others, Respondents. Judgment modified as directed in opinion, and affirmed as modified, without costs. Opinion by Daniels, J. Cornelius W. H. Elting, Respondent, v. Charles W. Dayton, Appellant. Order of reference affirmed, without costs, and motion to dismiss denied, without costs. Opinion Per Curiam. John Hayes, Plaintiff, v. Catharine E Rabold, Defendant. Orders affirmed, with ten dollars costs and disbursements. Opinion by Davis, P. J. Nathaniel Hooper and others, Respondents, v. Charles McC. Beecher and others, Appellants. Judgment reversed, new trial ordered, costs to abide event. Opinion by Davis, P. J. Henry Welsh, Respondent, v. John Taylor, Appellant.-Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by Davis, P. J. Max Hoffman and others, Respondents, v. Isaac Steinan and others, Appellants. - Order reversed, without costs. Opinion by Davis, P. J. Philip Deobold, Respondent, v. Frederick Oppermann. Appellant. Judgment and order aflirmed. Opinion by Daniels, J. The People of the State of New York v. Matthew McInerney and another. - Judgment affirmed. Opinions by Davis, P.J., and Daniels, J. The People of the State of New York ex rel. John T. Lockman, Respondent, v. James A, Flack, Appellant. — Order affirmed. Opinion by Brady, J. Susan F. Platt, Plaintiff, v. Annie R. Platt and others, Defendants.-Orders affirmed. Opinion by Daniels, J. Susan F. Platt, Plaintiff, v. Annie R. Platt and others, Defendants. Order affirmed, with ten dollars costs and disbureements, and motion to dismiss appeal denied, without costs. Opinion by Daniels, J. Benjamin C. Thayer, Appellant, v. John Dempsey, Respondent. -Order affirmed, with ten dollars costs and disbursements. Opinion Per Curiam. The Continental National Bank of the City of New York, Respondent, v. Hermann Koehler, Appellant. Judgment reversed, new trial or dered, costs to abide event. Opinion by Dan iels, J. Francis J. Byrnes, Respondent, v. Maria L. Labagh and others, Appellants.-Order reversed, and order to be entered as directed in opinion. Opinion by Davis, P. J. Frank B. Stearns, Appellant, v. St. Louis and San Francisco Railway Company.- Motion for reargument denied, with costs. George W. Johnston v. Henry Spicer. - Motion denied. National Thread Company, Appellant, v. Mansfield Silk and Thread Company, etc., Respondent. Judgment reversed, new trial ordered, costs to abide event. Opinion by Davis, P. J. The People of the State of New York, Respondents, v. Charles J. Everhardt, Appellant. Judgment affirmed. Opinion by Davis, P. J. Corn Exchange Bank, Appellant, v. Farmers' National Bank, Respondent. Judgment affirmed, with costs. Opinion by Brady, J. Richard S. Roberts and others, Appellants. v. Henry M. Graves, Respondent. - Judgment reversed, new trial ordered, costs to abide event. Opinion by Davis, P. J. Jessup & Moore Paper Company, Respondents v. William H. Cox and another, Appellants. Judgment affirmed, with costs. Opinion by Brady, J. Charles S. Stearns, Respondent, v. Jacob A. Sherman and another, Appellants. - Order modified as suggested in opinion, and, as modified affirmed, without costs. Opinion by Davis, P. J. Charlotte Meyer, Respondent, v. James P. Cahen and others, Appellan.s. Judgment affirmed, with costs. Opinion by Brady, J. In che matter of L. E. Chittenden, etc. - Order affirmed, with ten dollars costs and disbursements. Opinion by Macomber, J. Martha W. Leach, Respondent, v. James A. Flack, Appellant. Judgment reversed, new trial ordered, costs to abide event. Opinion by Daniels J. John L Dodge, Appellant, v. James Havemeyer, Respondent. - Judgement affirmed. Opinion by Davis, P. J. James R. Keene, Respondent, v. Elmore A. Kent and another, Appellants. -Order reversed and motion denied, with ten dollars costs and disbursements. Opinion by Daniels, J. The Germania Life Insurance Company, v. James Meagher and others, Appellants. Qrder affirmed, with ten dollars costs and disburse ments. Opinion by Brady, J. FIRST DEPARTMENT, OCTOBER TERM, 1886. The People of the State of New York, Respondent, v. John C. Stoll, Appellant. Judgment ment affirmed. Opinion by Davis, P. J. Paul Bauer, Respondent, v. S. E. Schevitch and others, Appellants. -Order reversed and order of arrest set aside, unless within ten days after notice of decision the plaintiff obtain and file the undertaking directed by the opinion and pay the costs of opposing the motion and of appeal, in which case order affirmed. But in case of failure to comply with these conditions, order reversed and order of arrest vacated, with like costs. Opinion by Daniels, J. George C. Genet, as Executor, etc., Appellant, v. Mary R. Hunt and others, Respondent. Judgment affirmed, with costs of appeal to all parties out of the fund. Opinion by Davis, P. J. Shepherd F. Knapp, as Receiver, Plaintiff, v. James Van Etten and others, Defendants. Reargument ordered. In the Matter of Herman Duden. - Reargument denied. Helen A. Babcock and others, Appellants, v. Oliver M. Arkenburg, Respondent. Order reversed, without costs. Opinion by Brady, J. Alfred A. Cohen, Respondent, v. John W. Ellis, Appellant. - Judgment reversed, and judg ment entered as directed in opinion. Opinion by Daniels, J. John M. Burke, Respondent, v. the Mayor, etc., of the City of New York, Appellants. Judgment affirmed, with costs. Opinion by Daniels, J. Joseph K. Murray, Respondent, v. Great Western Insurance Company. Motion denied, without costs. Opinion by Daniels, J. Isaac Hamburger and another, Respondents, v. Rudolph Moeller, Appellants. Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J. David Levy and another, Respondents, v. Rudolph Moeller, Appellant.-Order affirmed, with ten dollars costs and disbursements. Opinion by Davis, P. J. Edith Storm and another, Respondents, v. Thomas Storm and others, Appellants. Judgment affirmed, costs of all parties out of the fund. Opinion by Davis, P. J. Catharine Mendel, Respondent, v. Morris Mendel, Appellant. - Order reversed and motion denied, with ten dollars costs and disbursements. Opinions by Daniels, J., and Davis, P. J. William H. Sanger, Respondent, v. James M. Seymour, Appellant. Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J. Samuel Bingham and another, Respondents, v. the Marine National Bank, Appellant.- Motion for reargument denied. Opinions by Daniels and Brady, J. J., and by Davis, P. J., dissenting. Edward A. Morrison, Respondent, v. Moritz Bauer, Appellant. - Judgment modified as directed in opinion and affirmed as modified, without costs. Opinion by Daniels, J., and Davis, P. J. In the Matter of the Estate of John B. Page, deceased - Order affirmed, with costs. Opinion by Daniels, J. James E. Brett, Appellant, v. Gustavus A. Brett and others, Respondents.-Judgment modified as suggested in opinion and affirmed as modifled, without costs. Opinion by Brady, J. William C. Cowper, Appellant,v. Thomas Theall, Respondent. Motion denied, with costs. Opinion by Daniels, J. John A. Kernochan, Appellant, v. Angeline A. Peter Bowe, Respondent. v. Robert C. Brown and others, Appellants. Judgment and order modified as directed in opinion, and affirmed as modified, without costs Opinion by Daniels, J. Henry Knickerbacker and others, Respondents, v. Charles W. Gould, Appellant. - Judgment affirmed, with costs. Opinion by Brady, J. INDEX. ACCEPTANCE - Of a dedication. ACCOMMODATION PAPER: See BILLS AND NOTES. ACCOUNTING Action against sureties upon a general guardian's bond as to whether it should be brought in the name of the infant or of the guardian- when an action will lie against the sureties on the bond before an accounting has been had by the guardian. See PERKINS v. STIMMEL. ACTION - By the receiver of a corporation to determine the validity of bonds claimed to be secured by a mortgage on its property — when it can be maintained.] 1. The plaintiff, who had been appointed the receiver of the Syracuse Iron Works, in an action brought for the sequestration of its property under section 1784 of the Code of Civil Procedure, brought this action in January, 1886, to determine which of the bonds which had been issued by the iron works were secured by a mortgage for $100,000 issued by it, and which bonds should be excluded from sharing in the proceeds arising from the foreclosure of the mortgage; what bonds should be adjudged to belong to Charles B. Everson, which were not held by him, and what, if any, should be adjudged to be surrendered up by the present holders, and for such other relief as should be incident thereto. In November, 1884, the trustee, to whom the mortgage was given, had commenced an action to foreclose it. In February, 1885, one Giles Everson had commenced an action in his own behalf, and in behalf of all the other stockholders of the company, to compel the application of the bonds to the purposes of the trust. The validity of the mortgage was not disputed by the plaintiff, but some of the bonds, which are claimed to be secured thereby, are alleged to be invalid and to have been diverted from the purposes for which they were given, and to have been used to pay debts not existing when the mortgage was executed and delivered. PAGE. 520 Held, that the plaintiff, as the receiver of the corporation, was entitled to bring and maintain the action. HUBBELL v. SYRYCUSE IRON WORKS....... 182 2. To reach the surplus income of a trust fund· the habits and ability of the cestui que trust are to be considered in determining the amount to be allowed to him for his maintenance · the plaintiff must prove that there is a surplus. See KILROY v. WOOD..... 3. For partition maintain it a tenant, by the curtesy of an undivided share, may 636 · Code of Civil Procedure, & 1532. See TILTON v. VAIL.... 638 3. In what cases an action to restrain illegal acts will be by a taxpayer under chapter 531 of 1881. See STARIN v. MAYOR, ETC..... 549 ..... Relating to municipal corporations. Relating to corporations generally. [Look under head of Subject-Matter thereof.] ADDITIONAL ALLOWANCE: See COSTS. ADMEASUREMENT OF DOWER: See DOWER. ADMINISTRATORS: See EXECUTORS AND ADMINISTRATORS. ADMISSIONS— As evidence. See EVIDENCE. ADULTERY- Evidence. admissibility of the confession of a defendant in an action for adultery a decree will be granted when all just reason to believe that collusion exists is removed. See MADGE v. MADGE.. ADVERSE POSSESSION - - Landlord and tenant- ·when the possession of See CHURCH v. SCHOONMAKER... Statute of limitations PAGE. 524 225 - Code of Civil Procedure, §§ 365, 368, 373- 376 AGENT: See HASBROUCK v. BURHANS.. See PRINCIPAL AND AGENT. - ALBANY — Licenses for places of amusement — in Albany a discretionary See PEOPLE EX REL. DORR . THACHER.. ALLOWANCE: See COSTS. AMBIGUITY- Of covenants and conditions. See CONTRACTS. - - AMENDMENTS — Submission of a case upon agreed facts — Code of Civil APPEAL- To the County Court from a justice's judgment.] 1. Upon the Held, that the County Court erred in denying a motion made by the 2. What counter-claim cannot be pleaded in an action of tort.] That as 349 599 281 |