VIII. 273 ..VII. 232 ..VI. 487
Wooster v. The 42d St. & Grand St. Ferry RR. Co....71 N. Y. 471.
1. It is error, upon the trial of a prisoner charged with producing an abortion, to admit evidence of the commission by such prisoner of such crime upon another and different person than the one charged in the indictment as the person upon whom the crime was committed.Berger v. The People, 460.
2. No person can be called upon, on the same trial, to answer for two distinct offenses, one of which is charged and the other not.Id.
ACCEPTANCE.
See NEGOTIABLE PAPER, 10.
ACCOUNT STATED.
See REFERENCE, 1.
ACKNOWLEDGMENT.
See MORTGAGE, 9, 34.
ACTION.
See ASSESSMENTS, 5, 8; ASSESSORS; CORPORA-
TIONS, 20; EXECUTORS, &c., 5; FRAUD; HUS-
BAND AND WIFE, 1; LIS PENDENS; NE-
GOTIABLE PAPER, 13; PARTNERSHIP, 9;
PROMISE; TOWN BONDS.
ADJOINING OWNERS.
1. Where there is no technical water-course, an adjoining owner has the right to improve or grade his lot without reference to the effect it would have upon adjoining premises, as to water running upon its surface in times of long rains, and upon occasions when snow melts rapidly.-Barclay v. Wilcox, 298.
1. Appellant's intestate died, leaving a widow, five sons, a grandchild and a greatgrandchild. Prior to his death he gave to each of his children $500 on their marriage, entered the same in his books as advancements, and took receipts expressing that fact. In 1867 he gave $2,000 to each of his Vol. 9-No. 26.
sons, which were entered by one of the sons on the same page of the book as the other entries, and the evidence authorized the inference that intestate knew thereof and adopted them. In 1872, shortly before his death, he also gave $3,000 to each of his sons. Held, That the presumption of law is that they were intended as advancements, and that the descendants of the deceased daughters of intestate were entitled to the benefit of advancements made to the sons.-Beebe v. Estabrook et al., 361.
ADVERSE POSSESSION.
1. Payment of taxes, surveying and assertion of right do not constitute possession of wild or unimproved lands, nor does the going on the land from time to time and cutting logs thereon give possession; such acts are merely trespasses, and do not constitute a disseizin of the true owner.Thompson v. Burhans et al., 282.
2. In 1852, plaintiff caused certain wild uninclosed lands to be surveyed. In 1858 he arranged with one R. to cut a quantity of logs therefrom, which was done. In December, 1864, hearing that defendants intended to enter under a claim of title, plaintiff directed R. to cut more logs and build a shanty, which was also done, and R. also built a barn in 1865. After the commencement of this action, R. cut several thousand logs from the land. In an action to recover possession of the lands, Held, That plaintiff had neither actual nor constructive possession.-Id.
3. In an action for trespass in entering plaintiff's lands, it appearing that plaintiff and his grantors had had possession of part of the premises, open, notorious and exclusive, under a claim of title, and had cultivated it and received the rents and profits thereof for more than thirty years before defendant's interference, and no one had made any claim thereto, Held, That this constituted an adverse possession.Woolsey v. Morss, 304.
4. As to the rest of the premises, plaintiff having had peaceable and exclusive pos session under a written title, and received the rents and profits for upwards of forty years, and defendant now claiming also,
under a written title, an interest therein as
tenant in common with plaintiff, Held,
that such possession constituted an ouster
and barred defendant's claim.-Id.
5. C. and her husband in 1808 conveyed cer-
tain lands to trustees in trust to sell enough
to pay all debts of the grantors; to lease the
same and pay the net profits thereof to the
grantors during their lives, and to hold the
residue of the lands for the benefit of such
persons as should be the right heirs of C.
and her husband at the time of the death
of the survivor. The survivor died in 1871.
In an action of ejectment brought by a
daughter of the grantors, who was living
when the conveyance was executed, the
defendant set up adverse possession, com-
mencing in 1842. Held, That the whole
legal estate vested in the trustees; that C.
had an equitable estate for life, and her chil-
dren an equitable estate in remainder; that
at C.'s death plaintiff became entitled to
the actual possession of the land remain-
ing in the hands of the trustees, but she
took subject to their acts and was bound
by their affirmative acts or their neglect;
that the defense was good; that the trus-
tees having neglected to assert their title,
plaintiff was estopped thereby.--Bennett v.
Garlock, 569.
See ARREST, 7; ATTACHMENT, 1; SERVICE, 1.
1. If an agent possesses due authority to
make a written contract, not under seal,
and he make it in his own name, whether
he describes himself as agent or not, or
whether the principal is known or un-
known, his principal may be made liable,
and will be entitled to sue thereon in all
cases, and the instrument may be resorted
to for the purpose of ascertaining the
terms of the agreement.-Nicoll et al. v.
Burke, 257.
2. E., the general agent of the plaintiff for
the collection of interest on her securities,
employed one K., an attorney, to collect a
certain mortgage due the plaintiff, With
E.'s approval, K., in consideration of the
conveyance of the mortgaged premises to
the only child of the plaintiff, and of ne
dollar paid to plaintiff, cancelled the bond
and mortgage and released the mortgagor
from all claim of deficiency. As soon as
the plaintiff learned of this act, she dis-
avowed it, and brought this action for a
foreclosure. Held, That E. had no implied
authority from his relations with plaintiff
to make this arrangement for her, and that
K.'s authority from his retainer gave him
no power save to receive the value of
the mortgage in money; that the retention
of the title to the premises by the grantee
under the arrangement up to the present
time was no evidence of a ratification by
the plaintiff; that an allegation in the
complaint herein that the grantee, under
that arrangement, had an interest in the
premises subordinate to the mortgage, was
a ratification of the conveyance to such an
extent as would prevent the court from
avoiding it entirely.- Wood v. Ferguson et
al., 385.
Declarations of an agent can be received
in evidence against his principal only
when made at the time of the transaction
to which they relate.- Winne et al. v. The
Niagara Fire Ins. Co., 567.
See BANKS, 1; CORPORATIONS, 2, 7; ESTOPPEL,
2; EVIDENCE, 10, 16, 19; FIRE INSURANCE,
9; LIFE INSURANCE, 4; RAILROAD COMPA-
NIES, 19; SET-OFF.
See CONTRACT; EVIDENCE, 4; FRAUDULENT
SALES, 6; LEASE, 8.
1. One S., a naturalized citizen, died in
1866, leaving as his only legal heirs a father,
who was a non-resident alien; defendant,
his sister, who was the wife of a naturalized
citizen, and a nephew and niece, both in-
fants, the children of a deceased alien
sister, who have since been naturalized.
Held, That defendant, by her marriage to
to a citizen, became a citizen, and capable
of taking and holding lands by purchase
or descent, and was the only person cap-
able of taking by descent from S.; that
the father, being an alien, could not in-
herit; that the nephew and niece could not
inherit directly or through their mother;
that where some of the heirs are incapable
of taking, by reason of alienage, they are
disregarded, and the whole title vests in
those heirs competent to take, provided
they are not compelled to trace the inher-
itance through an alien.-Luhrs v. Eimer,
484.
2. Where a title has vested and become per-
fected under the laws of descent existing
when the ancestor died, it cannot be taken
away by subsequent legislation removing
the disabilities of alienage.-Id.
See JURISDICTION, 4.
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person injured, unless it be one of which
it can be said that the person voluntarily
incurred the danger, with full knowledge
of its probable consequences.-Fanning v.
Hagadorn, 36.
1. An order overruling or sustaining a de-
murrer is not an interlocutory judgment,
and cannot be appealed from.-Cameron v.
The Equitable Life Ass. Soc., 25.
2. The awarding a writ of inquiry, and the
assessment of damages under it, is not
such a final judgment as the law provides
for appeals. A review of such order can
only be had on appeal from the final
judgment, and then it must be specified
in the notice of appeal.-Id.
3. An appeal lies to the Court of Appeals
from an order of General Term, affirming
an order of Special Term denying an ap-
plication under 2 R. S., 619, § 44.-Marvin
v. Marvin, 28.
4. Where a cause has been argued at General
Term before only two judges and decided
by them, a reargument will not be granted
on that ground.-Schermerhorn v. Carter,
38.
5. It is only when heard by two judges, and
they disagree, that a reargument will be
ordered.-ld.
6. Where the Court, at General Term, over-
looks a statutory provision in its decision,
a reargument will be ordered.-Lesser v.
Wunder, 56.
11. Where the Court of Appeals reverses a
judgment and orders a new trial unless
the plaintiffs stipulate to deduct certain
amounts with interest, but if they do thus
stipulate the judgment as reduced by the
stipulation is ordered to stand affirmed in
every particular, the plaintiffs are entitled
to the costs of the appeal to the General
Term.-Nicoll et al. v. Burke, 133.
12. When two justices only are present at a
General Term, an assent by one that a
judgment may be entered from which he
dissents is not sufficient to render such
judgment effective; that the absent justice
who participated in the hearing has pre-
viously indicated his conclusion is not
enough; he must participate or take part
when the decision is actually made to
render it lawful.-In re application of the
Kings Co. Elevated R. R. Co., 183.
13. On motion to vacate an attachment the
affidavits on which the attachment was
granted and those used in opposition to
the motion showed facts sufficient to au-
thorize the judge to grant the attachment.
Held, That an order denying the motion
was not appealable to the Court of Ap-
peals.-Whittaker v. The Imperial Skirt
Mfg. Co., 203.
14. On appeal from a decree of a surrogate,
the General Term, in 1871, made an order
reversing said decree. In 1878 a motion
was made to amend the order of 1871, "so
as to conform with the evident intention
of the General Term." This motion was
denied. Held, That the order denying the
motion was not appealable; that if the
order of 1871 was erroneous an appeal
should have been taken; or, if irregular,
the attention of the court should have
been called to it at an earlier day, and its
decision then would not be appealable, as
it was a discretionary matter.-Bentley v.
Waterman, 205.
7. An appeal from an order denying a mo-
tion for a new trial made upon the judge's
minutes after a non-suit, raises no question
for review.-Van Doren v. Horton et al., 109.
8. In an action brought by a trustee, judg-
ment was rendered against the defendants.
Defendant B. was not affected by the judg-15. An order, granted in an action to set
ment except as trustee for some of the
other defendants. Notice of entry of judg-
ment was served by plaintiff, but none
was served on behalf of B, nor was any
notice of appeal served on him. Held,
That the notices of appeal served were
good as to those prevailing parties who
served notice of judgment, but as to de-
fendant B. the time to give notice of ap-
peal had not expired.-Kilmer v. Hathorn
et al., 114.
9. The notice of judgment did not show the
office address or place of business of the
attorney who served it. Held, a fatal de-
fect.-id.
10. Where it appears that the affidavits on
which an attachment was granted were en-
tirely insufficient, they showing no essen-
tial fact, the Court of Appeals will enter-
tain an appeal from an order sustaining
the attachment.-The Steuben Co. Bk. v.
Alberger, 119.
aside the appointment of a Receiver in
supplementary proceedings, appointing a
new Receiver, and directing the former
Receiver to account and pay over to him
the money in his hands, is discretionary,
and not appealable to the Court of Ap-
peals.- Connolly v. Kretz, 211.
16. An action brought by tenants in com-
mon against their co-tenants was removed
from Circuit to Special Term by order of
the circuit judge, on the ground that the
At
case was one for equitable relief.
Special Term it was claimed by defendants
on the pleadings and opening that the
case was not one for equitable relief, and
that other persons alleged to be part
owners should be brought in as parties.
An order was made allowing plaintiffs to
amend so as to bring in these other parties
and charge defendants in an equitable
action. Held, That an appeal from such
order would not lie to the Court of Ap-
peals; that if any substantial right of the parties is violated in the final disposition of the cause, either as to the mode of trial or otherwise, such question may be raised on the trial, and an exception taken to be heard on appeal from the judgment.Kellum et al. v. Durfoo et al., 230.
sequent to the mortgage, they claiming that their title was prior thereto, Plaintiff had become the purchaser on the sale. Thereafter an order was made discharging a receiver, appointed to collect rents of the premises, and directing said receiver to turn over possession of the premises to appellants, and to pay them the rents collected. This order was vacated by General Term. Held, That the order of General Term was not appealable; that the court was not bound summarily to order the receiver to pay the funds to the one party or the other; nor to order him to deliver possession of the premises to the appellants.- Embury v. Foster et al., 267.
17. A judgment of non-snit was entered and an extra allowance of $1,000 granted to defendant. On appeal a new trial was granted. On the second trial defendant had a verdict and an extra allowance of $700. The clerk refused to tax the first allowance, and the Special Term refused an order for retaxation, holding that only the last allowance was intended and should be included, and the General Term affirmed that decision. Held, That defendant was entitled to but one allowance, but if otherwise, it was discretionary with the Supreme Court to determine whether 24. On appeal to the Court of Common Pleas
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more than one should be allowed.-The Union Trust Co. v. Whiton, 236.
18. On appeal from a judgment of non-suit,
the General Term granted a new trial,
costs to abide event. Defendant had a
verdict on the second trial. An order was
granted at Special Term directing a re-
taxation of costs and disallowing costs of
appeal, which was affirmed by the General
Term. On appeal to the Court of Appeals,
Held, That the appeal, being from a con-
struction by the General Term of its own
order in accordance with the construction
of other orders, its interpretation should
not be interferred with by this court.-
The Union Trust Co. v. Whiton, 245.
19. Where a party has appealed in good
faith, the court has the power, under
§ 1303 of the Code, to relieve him from the
consequences of neglect to file the proper
undertaking.-Parker v. McCunn, 245.
20. But where the defendants, applying to
be relieved, have permitted more than
three years to elapse without taking a
single step to perfect or proceed with their
appeal, and meantime the judgment has
been collected in due course, and has
since been cancelled of record, and where
such laches appear to be inexcusable, the
court should not relieve a party from the
consequences of its neglect to file the
proper undertaking.-Id.
21. An order of General Term, reversing an
order of Special Term confirming the re-
port of a referee as to distribution of sur-
plus moneys on foreclosure, and directing
that the case be referred back to the referee
to report as to priority of liens, is not a final
order, and as the Special Term may hold
upon the referee's report that the moneys
should be retained to await the result of a
suit to test the rights of the parties thereto,
the order is not appealable to the Court of
Appeals.-Bergen v. Snediker et al., 264.
22. A judgment of foreclosure was amended so as to bar appellants of all interest sub-|
23. An objection that the petition was not verified cannot be raised for the first time on appeal.-In re The Boston, Hoosac Tunnel & W. RR. Co., 281.
from an order of the General Term of the
Marine Court granting a new trial, appel-
lants stipulated that if the order should be
affirmed judgment absolute might be taken
The Court of Common
against them.
Pleas affirmed the order and rendered
judgment absolute against appellant. Held,
That this judgment was final, and no ap-
peal would lie to the Court of Appeals.-
Gordon et al. v. Hartman, 293.
25. There can be no appeal to the Common
Pleas from an order of the Marine Court
granting a new trial without the stipula-
tion.-Id.
26. The Court of Appeals does not lose jurisdiction of a cause before it on appeal untithe remittitur has been filed in the court below, and that court has taken some acl tion thereon.-The People ex rel. Smith v. The Village of Nelliston, 298.
27. Costs in the Court of Appeals are not allowable in a certiorari proceeding, whether the appeal is from a judgment or from an order superseding the writ.-Id.
28. An order of (eneral Term which imposes costs of appeal absolutely is a final determination, and therefore appealable.—Bergen v. Snediker et al., 320.
29. The decision of the judge in settling interrogatories is an order in the action, and so far as it disallows pertinent questions it affects a substantial right and is appealable. -Uline v. The N. Y. & C. H. R. RR. Co., 344.
31. An order of General Term, reversing an order of Special Term vacating assessments, and remitting the case for modification of such assessments, is not a final order and, therefore, not appealable to the Court of Appeals.-In re petition of Auchmuty et al., 360.
31. The receiver of an insolvent insurance company published a notice, pursuant to an order of the court, requiring all creditors to present their claims on or before a cer
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