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case he did not do so within six months, served, could not be considered by the the lease should cease, if the lessee so jury in determining the amount of elected. The latter sublet his inter- damages. The sublease had been est in the premises to N. C. & H. received in evidence without objecfor a portion of the term, and at an tion, and no motion was made to increased rent, the lease providing strike it out. that they should yield up possession Held, No error. to him at the expiration of the term; The Court refused to charge that in that the destruction of the premises determining the amount of damages, by fire should not terminate the lease, or the difference between the nature of provided defendant should elect to the lease for the unexpired term and rebuild, and did so with reasonable the stipulated rent, the jury must not diligence. Defendant at the same consider any future profits or enhanced time leased his interest in the prem- value of the lease, which might arise ises for the same rental and term, from the association of the owners of and upon substantially the same con- the elevators. It was urged that these ditions. The buildings were burnt damages were too remote, speculative, April 21, 1867, and defendant on and contingent, and that the associaMay 15, 1867, notified G. that he tions referred to were illegal. There had concluded not to rebuild, and was proof that the business of elevat. the saine day conveyed the premises ing grain was done at times by each to the Niagara Elevator Co.

elevator separately, and at other times E. C. Sprague, for applt.

by an association formed mainly to Sherman S. Rogers, for respt. regulate the price.

Held, That plaintiff's remedy for Held, That the Court did not err damages was complete upon defen- in its ruling; that the addition value dant's failure to rebuild; that no new arising from the formation of the asrelations were created by the lease sociation bore directly upon the quesfrom G. to N. C. & H. which re- tion of damages, and was clearly a lieved defendant from the effect of proper subject for consideration by the covenant to rebuild in his lease the jury in fixing the amount of the to G.; that the provisions in the lease same; that as to the illegal character to N. C. & H., in regard to defen- of the association, G., not having been dant's obligations in case the elevator connected with it, was not responsible burned, were not inconsistent with for it. 14 N. Y., 162, 176. those existing under the lease to G.; Judgment of General Term, affirmthat the lease to N. C. & H. from ing judgment on verdict for plaintiff, G. constituted a sublease, and not an affirmed. assignment of the entire term, which Opinion by Miller, J. All contransferred any right of action against cur, except Church, Ch. J., and defendant. 56 N. Y., 157.

Allen, J., not voting. Woodhull v. Rosenthal, 61 N. Y., 383, distinguished and explained.

The Court refused to charge that the sublease of G., and the rent re

DIVORCE. REFERENCE. seen that if there is a reference, after N. Y. SUPERIOR Court. SPECIAL TERM. denying the charge of adultery, it

James A. Harper v. Julia C. Har- must be to hear and determine all the per.

issues. The referee tries the whole Decided October 31, 1877. case and gives the judgment. Where the answer in an action for absolute The consent and order of reference

divorce denies the charge of adultery, a in this case were appropriate to a reference to take proof of the facts and re

case provided for in the 41st Section port the same to the Court cannot be ordered even upon consent. In such a case the of the Statute, but wholly inappropriCourt can only order reference to hear ate to a case where the defendant has and determine all the issues.

answered and denied the charge of Motion at Special Term to set aside adultery. Upon such a consent the order of reference in an action for Court, in Whale v. Whale, 1 Code R., absolute divorce wherein defendant 115, denied a motion to refer, and in had interposed an answer denying the Waterman v. Waterman, 37 How. charges of adultery. Her attorney, Pr., 36, refused to limit the order to withont her knowledge or consent, taking the proof, merely, holding that stipulated with plaintiff's attorney to there must be a full reference. Upon refer the action to a referee to take the ground therefore that the case, as proof of the facts and material mat- presented, did not authorize the Court ters alleged in the complaint and re- to make a linnited or qualified referport the same to the Court with his ence, even upon the consent of the opinion. Defendant having procured parties the order was irregular and a substitution of attorneys made this must be vacated, and as the consent motion.

is unavailable to procure any other or Bushneil & Albright for motion. different order than the one now held

Held, There is no doubt that the to be irregular it is not necessary to parties to an action for a divorce may examine any of the other grounds of waive a trial by jury and consent to the motion. a reference of all the issues. In such Motion granted. case the referee takes the place of Opinion by Speir, J. both Court and jury, hears and determines all the issues, and pronounces DIVORCE. COUNSEL FEE. the judgment. But without such

ALIMONY. waiver the parties cannot be deprived N. Y. COMMON PLEAS. SPECIAL TERM. of the right to a jury trial. See $ 2, Howe v. IIowe. Art. 1 of Cons. as to waiver, and

Decided January 7, 1878. § 40, 2 R. S., 145, as to righít to jury Where counsel fee, disbursements and costs trial. It is only where the adultery are awarded to the plaintiff's attorney in the charged is admitted by the answer, or

final decree in an action for divorce, they when no answer is put in, that the

may be enforced by attachment.

A refusal to pay the same is a contempt of Court can, without consent, order a

Court. reference, § 41, Id.; and such refer- The payment of alimony cannot be enforced ence is to take proofs and report the by attachment. same to this Court. Thus it will be Motion made by counsel for plain

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tiff for an attachment against the de- form of an ordinary bank check, fendant for refusal to pay counsel fee, October 14, 1876, in settlement of a costs, and disbursements awarded to policy on the life of the petitioner's him in the final decree, entered in an husband, upon the U. S. Trust Comaction for an absolute divorce. The pany, where it had at the time a dedefense to the motion being that posit largely in excess of the amount under the decisions the only remedy of the check. The check was sent plaintiff had after the entry of final to the petitioner in California, indecree was by execution.

dorsed by her, returned and preC. E. Whitehead, for motion. sented for payment November 9, Allen, opposed.

1876, and payment refused, a Held, That the payment of alimony ceiver of defendant having been apin the final decree to plaintiff could pointed October 25, and he having not be enforced by attachment, Lan- withdrawn all the company funds desing v. Lansing, 4 Lansing, 377; Mil-posited with the Trust Company. It ler v. Miller, 7 Hun, 208; but that was claimed that the check operated as to the counsel fee, costs and dis- as an equitable assignment of the bursements ordered by the judgment fund deposited pro tanto. Upon to be paid to the plaintiff's attorney, motion an order was granted directthe defendant, if he fail to pay, may ing the receiver to pay over the be punished as for a contempt, on the money to the petitioner. ground that as to such counsel fee, so Ashbel Green, for applt. payable, the judgment "requires the Elliot F. Shepard, for respt. payment of money ... to an officer Held, Error; that the check being of the Court." Code of Civil Proce- general in forin it would not operate dure, $ 1241, section 4.

as an equitable assignment of the Opinion by J. F. Daly, J.

money in the Trust Company; that

in order to have such effect it should BANK CHECKS. EQUITABLE

have specitied a particular fund upon

which it was drawn. 3 N. Y., 119; ASSIGNMENT. N. Y. COURT OF APPEALS.

49 Barb., 221; 60 N. Y. 153; 48 Id., In re petition of Merrill. The

682; 57 Id., 270, 459; 46 Id., 83. Attorney-General v. The Continental

It appeared that upon the back of Life Ins. Co.

the check defendant had written a Decided November 27, 1877.

receipt in full for all demands under

the policy, that the petitioner was to A bank check, general in form, will not operate as an equitable assignment of the mon.

sign in indorsing the check. ey in the bank or other place of deposit. In Heu, That this did not affect its order to have this effect it must specify a negotiability, and would not create a particular fund upon which it is drawn.

lien or appropriation of the fund in The fact that a receipt in full of all demands

the Trust Company without some exupon a policy held by payee was indorsed upon the back of the check, which the payee pression to that effect, or an acceptwas to sign in indorsing it, does not affect ance by the drawee; that the rights the question.

of all the creditors upon the appointDefendant gave a check in the ment of a receiver became fixed by statute, and the petitioner, not having affidavit had no venue, and it did not acquired any lien upon any of the appear therein where it was sworn to, assets, occupies the position of a gen- nor where the Justice of the Peace, eral creditor.

who appears to have taken it, resides. Order of General Term, affirming Hatch & Van Allen, for applt. order of Special Term, reversed and W. T. B. Milliken, for respts. motion denied.

Held, That this is a fatal defect. Opinion by Church, Ch. J. All Cook v. Stoats, 18 Barb., 407; Lane concur.

v. Long, 6 How., 394.. Jurisdiction

depended on the affidavit, and if it SUMMARY PROCEEDINGS. lacked an essential requisite, all subN. Y. SUPREME COURT. GENERAL sequent proceedings were void unless TERM. SECOND DEPT.

the defect was waived. There being The People ex rel. Crawford et al., no appearance before the Justice, respts., v. Olivia De Camp, applt.

there could be no waiver. Decided December, 1877.

The tenants were absent from the The omission of the venue in the landlord's premises in question upon which they

affidavit in summary proceedings is a fatal resided, and the service was made on defect.

both tenants by leaving one copy with Where there are two or more defendants who are absent from the premises, the leaving of

a person of mature age and discretion. one copy of the summons with the person in

Held, That the summous was not charge not a sufficient service.

properly served. The service must Appeal from order reversing sum- be made upon each. It has been mary proceedings and awarding res- made upon neither. This is also a titution, and also from the judgment jurisdictional defect; without proof entered thereon.

of the service of the summons upon Appellant let certain premises to the tenants, the Court could not prorelators to be used as a summer hotel, ceed to dispossess them. at a rent of $7,000-$2,000 to be paid

Order affirmed with costs. July 1, $2,500 on September 1, and Opinion by Barnard, P. J. $2,500 on November 1.

The last payment not having been MORTGAGE. NATIONAL made, Mrs. De Camp instituted sum

BANKS. mary proceedings to recover posses- N. Y. COURT OF APPEALS. sion. No appearance was made by Crocker v. Whitney et al. In re the tenants, and judgment was entered National Bank of Genesee, applt., v. in her favor, and the marshal put her Bostwick et al., respts. in possession.

Decided November 13, 1877. On certiorari, Gilbert, J., reversed A mortgage given to a national bank as sethe judgment, on the ground that the curity for future loans and discounts is void. landlord's affidavit was defective in This was an appeal from an order stating that the $2,500 was due for of General Term, affirming an order rent from September 1 to November of Special Term, disposing of sur1.

plus moneys on a mortgage foreclosure. It appeared that the landlord's The appellant, a National Bank, on

are

Foote v.

January 12, 1871, took from defend- mortgage, so far as it was for future ant W. a mortgage for $5,000 to loans and discounts, was void, 3 secure $3,200 of paper which it had Wend., 482; 7 Id., 31; 2 Cow., 678 ; previously discounted, and any debts 31 N. Y., 472; that a national bank W. might in future owe it. The by taking a mortgage upon real estate respondents, who subsequent would become a holder of real estate mortgagees, contest the validity of within the true meaning and intendappellant's mortgage as a security for ment of said § 28. future liabilities, and claim that the Order of General Term, affirming debt due when appellant's mortgage order of Special Term, affirmed. was executed having been paid, they Opinion by Andrews, J. All conare entitled to the surplus moneys. cur except Rapallo, J., not voting, It appeared that W. was a manufac- and Folger, J., absent. turer of flour, that appellant discounted his notes and credited W.

NOTICE TO SURETIES ON AP. with the proceeds; that W. drew

PLICATION TO DISCIARGE drafts on his custoiners which appel

LEVY. lant received and credited to him,

N. Y. COMMON PLEAS. . SPECIAL and he deposited in the bank money

Term. received in his business. The items of

Schmeder. debit and credit were entered in a

Decided January 11, 1878. single account, and it was the custom to charge the notes as they matured Notice of application to discharge levy must

be given to sureties on appeal from the judge in Wi's account. The notes held

ment affirmed, as well as sureties on new by appellant January 12, 1871, the appeal. date of the mortgage, were, as they Motion made to discharge a levy matured, so charged, and afterwards on giving security under § 1311. surrendered. No notes discounted Judgment in favor of plaintiff had subsequent to that date were in- been rendered at Special Term, and dorsed. From January, 1871, to an appeal taken to General Term, Angust, 1874, the debits exceeded and an undertaking given on such the credits $2,938.31.

appeal to stay execution. Wm. C. Watson, for applt.

The judgment was affirmed, execuM. II. Peck, for respts.

tion issued, and levy made. Held, That the notes held by ap- Defendant appeals to Court of Appellant at the date of its mortgage peals, and applies for å stay of prohave been paid, i Mer., 608; 6 N. ceedings, making a deposit of money Y., 147; that national banks, under in lieu of giving an undertaking, as the provisions of the National Bank- provided for in $ 1306, and moves to ing Act of June 3, 1864, SS 8, 28 (U. discharge levy under § 1311. S. R. S., S$ 5136, 5137), are prohibi- Respondent objects, on the ground ted from taking a mortgage on real that no notice of this application has estate as security for future loans or been given “ to the sureties on the undiscounts, 72 Pa., 456; 2 Dil. C. C., dertaking," as prescribed by $ 1311. 371; 3 Bis. C. C., 190; and that the l Appellant contends that the sureties

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