E. F. Brown, for motion. intended by this section were those were executed by him for the acon the undertaking on pending ap-commodation of the firm of W. J. & peal, and inasmuch as a deposit of J. E. McCormack, of which the demoney is made in lieu of the under- fendant, Anderson Fowler, was a taking, there could be no sureties to member, and, as a part of a scheme notify. to raise money in evasion of the laws against usury, the title of the property having been transferred to him by them for that purpose; that the plaintiff knew of this proceeding; that Wm. J. & J. E. McCormack, having had an accounting with the defendant, Fowler, requested him to transfer the title to the premises covered by the mortgage to such defendant, Fowler, which he did, and that the latter has the exclusive possession of the mortgaged premises, and has received the rents, issues, and profits thereof; and that Fowler is now possessed of all the property and assets of the firm, the other members of which are insolvent. Held, That notice of application to discharge levy should be given to the sureties on appeal from the judgment, which has just been affirmed, as well as to sureties on the new appeal, as the liability of both might be affected by discharging the levy. Opinion by J. F. Daly, J. BRINGING IN N. Y. SUPREME COURT. GENERAL Decided January 11, 1878. A defendant who has defaulted may probably be required to plead to allegations affecting The defendant asked for relief dismissing the complaint, and that if the bond and mortgage are held to have any validity that the Court declare Fowler primarily liable for any deficiency, and that no execution issue against defendant, Dickson, until after him charged in the answer of a co-defend ant, or such allegations be taken as con-execution had been issued against fessed against him. Fowler and returned unsatisfied. The defendant, Fowler, had defaulted in serving answer, and Dick Appeal from an order directing an issue to be framed, by requiring the defendant, Fowler, to answer the al-son, in due time, made application relegations contained in the answer of the defendant, Dickson. This action was brought for the foreclosure of a mortgage executed by the defendant, Dickson, to W. J. & J. E. McCormack, and assigned by the McCormacks to the plaintiff. The answer of the defendant, Dickson, alleges that the bond and mortgages, in the complaint referred to, quiring Fowler to plead to the alle- son. Held, It is quite apparent, from this statement contained in the answer, that the McCormacks are necessary parties, and that the issues so affect them that they could not be disposed of effectually without their appearance. On plaintiff's case the McCormacks are not necessary parties, but the defendant Dickson's charges make them the primary debtors in union with the defendant, Fowler, if he were a member of the firm represented by their names. This action was brought to recover two legacies, and interest thereon under the will of II. It appeared that H. died in 1820; that by his will he devised a farm to his son J., on the following conditions, viz.: “I order and direct my son Jonathan to pay unto my three daughters, Hannah, Eunice, and Sarah $100 each, which I give and bequeath to them and their heirs forever," "and furthermore I order and direct that my four daughters, Phebe, Hannah, Eunice, and Sarah shall live with Jonathan and their mother, and to have a sup port of the farm, and to assist as usually they have done in carrying on the business of the house, and the money I have bequeathed to them to be paid in one year after they shall severally marry or be inclined to leave Jonathan and their mother and live elsewhere." The legacies to Phebe and Hannah were paid. The order was premature and must be reversed, as the presence of the McCormacks as defendants is necessary to a complete determination of the controversy. Plaintiff must therefore be directed to bring in the McCormacks (§ 452, new Code) as parties defendant, at the expense of the defendant, Dickson, as for his benefit the order is made. Dickson to pay disbursements of this appeal. Opinion by Brady, J.; Davis, P. Sarah and Eunice remained unmarJ., and Daniels, J., concur. N. Y. COURT OF APPEALS. Loder, admrx., &c., plff. v. Hatfield et al., defts. Decided November 13, 1877. Testator devised a farm to his son on condition that he pay certain legacies to testator's daughters. The will directed that the daughters should remain on the farm, and the legacies to be paid in one year after they shall severally marry, or be inclined to leave and live elsewhere. Held, That the legacies were a charge on the farm, and vested upon the death of testator. Interest may be recovered upon such legacy An action to recover such legacy, commenced ried, and lived on the farm, aiding in the work until they died. Jonathan accepted the devise, lived on the farm, and devised it to his wife on his death in 1870. Sarah died in 1856, having assigned her legacy to Eunice in December, 1855. Eunice died in August, 1871, intestate, and this action was brought by her administratrix. Close & Robertson, for defts. Edward Wells, for plff. Held, That the legacies in suit were made by the terms of the will a charge on the farm in equity, 1 Paige, 32, 7 Id., 421; that although J., by accepting the devise, became personfarm remained in equity as security ally liable for their payment, yet the for the payment, 2 N. Y., 500; Oyer. The return to the writ of error does not set forth the entry of an order transferring the indictment to the Court of Sessions for trial. that these legacies vested upon the The indictment was found at the death of the testator; that the gift The accused pleaded not being direct and distinct the direction guilty in the Oyer. for payment on the happening of the events named did not defer the vesting of the legacies, 1 MacN. & G., 354; 1 Hare, 12; 4 Sandf., 156; 11 Wend., 259; that it being apparent that the direction to pay the legacies in the future was for the convenience of the estate, the vesting of them was not prevented. 4 Hare, 398. Also held, That the action not having been commenced until sixteen years after the death of Sarah, the legacy to her was barred by the statute of limitations. Also held, That plaintiff was entitled to recover interest on the legacy to Eunice from one year after her death. Judgment of General Term, modifying judgment of Special Term, affirmed. Opinion by Folger, J.; Andrews, Miller, and Earl, JJ., concur. Church, Ch. J., dissents, Allen, J., not voting, Rapallo, J., absent. CRIMINAL PRACTICE. Decided December, 1877. Where the prisoner was indicted and pleaded in the Oyer and Terminer, and was convicted in the Court of Sessions, an objection to the jurisdiction of the latter Court, on the ground that no order transferring the indictment was entered, cannot be first raised in the appellate Court. Whether any order is necessary, quære. The plaintiff in error was convicted of the crime of robbery at a Court of Sessions, held in Richmond County. It is claimed that the Court of Sessions had no jurisdiction, as there was no such order. This objection was not taken on the trial. W. F. Howe, for plff. in error. Held, That the question cannot now be raised. The presumption is in favor of the regularity of the proceedings. Ferris v. The People, 48 Barb., 18. If the formal order was not entered, the question was not presented to the Court at the trial. Thompson v. The People, 3 Park. Cr., 208. The omission to enter the order was not prejudicial to the prisoner. 2 R. S., 728, § 52. Whether any order is necessary is Conviction affirmed. CONTRACTS TO PAY FOR SER- N. Y. SUPREME COURT. GENERAL Decided November, 1877. An agreement to pay for honest services, per- ments openly before legislative committees which the petitions had been presented. is not unlawful in its character. Appeal from a judgment entered on the report of a referee. Action to recover upon an agreement in writing, whereby defendant agreed to pay to plaintiff, or order, $2,000, ten days after a dock should be built in front of defendant's lumber yard in the city of Albany, the space behind it filled in and the work accepted as finished by the engineer or party in charge of the Albany basin improvement. The complaint alleged that the dock had been built and accepted, and this allegation was not denied. The defence was, no consideration for the agreement, and also that the consideration for the contract was that plaintiff should use his influence with the State Engineer and his subordinates, and procure them to use their official power with the contractors, so that the contractors should not occupy, at any one time, more than part of said dock; that said contractors occupied the whole thereof; that plaintiff failed to carry out the purposes for which the paper was executed; and also that the consideration was illegal and based solely on the use by plaintiff of influence on the official action of the State engineer and his subordinates, and the contract therefore void. It appeared that plaintiff, in pursuance of said agreement, circulated petitions for the enlargement of the opening at the upper and lower ends of the basin. He brought the question before the Common Council and citizens of Albany, and before the Canal Board, made arguments before them and before the Legislature, to The Legislature passed a law authorizing such improvements, and subsequently plaintiff appeared before the Canal Board and contracting board and advocated a plan of carrying out the improvement, by means of which the dock in front of defendant's property was filled in, and defendant thereby benefited. The referee found in favor of plaintiff. R. W. Peckham, for applt. Held, No error. An agreement to pay for honest services, performed in furtherance of fair and just legislation, is founded upon a good and sufficient consideration, and valid and binding on the promisor. Where the proposed legislative action is of a public character, a party, although to be benefited by it, has a right to urge its passage by open, fair effort, and to employ the assistance of others in his behalf; not by way of private solicitation and importunity, but by an honest presentation of facts and sound argument. Where the services of the plaintiff are openly performed, and consist in the drawing up and circulating of petitions, and presenting evidence and arguments openly before legislative committees, such services are not unlawful in character, and a promise in writing, by the employer, to pay a specified sum therefor, is binding in law upon him Judgment affirmed with costs. DIVORCE. ADULTERY. EVI- housework; no other actions indu DENCE. N. Y. COURT OF APPEALS. Pollock, applt., v. Pollock, respt. Decided November 13, 1877. Evidence of opportunity alone is not enough to authorize an inference that adultery has been committed, proof of other and suspicious circumstances is necessary. The fact that the alleged paramour was considered to be the wife of plaintiff, and had been addressed as such, will not affect the plaintiff unless he had knowledge thereof. Where such alleged paramour has been called cing such belief were sworn to. It was proved that she was spoken to on two occasions by the married name, at one of which she made no reply and at the other replied, not as to the name but as to the thing asked for. It did not appear that plaintiff knew that she was addressed as his wife, or so considered. Held, That without such knowledge he could not be affected by by defendant as a witness, the defendant those facts. 1 Hagg., 299. may show that she was mistaken in her testimony but cannot impeach or assail her. This was an action for divorce a vinculo, brought by a husband; the wife set up as a defence the adultery of the plaintiff. Evidence was given which showed that there was full opportunity for the plaintiff and his alleged paramour to have committed the act of adultery, had they been 30 inclined, but there was no proof of any act or gesture, word or look of indecent or undue familiarity on the part of either towards the other. W. A. Beach, for applt. Cary & Hudspeth, for respt. Held, That evidence of opportunity alone was not enough for a Court to found an inference upon that the criminal act was done; proof of other and suspicious circumstances was necessary. 1 Hagg., 439; 6 L. R., 139; 2 Edw. Ch., 207; 2 Hagg., 376; D. & S., 132; 2 Hagg., 228; Id. Supp., 1; 6 C. E. Green. (N. J.), 246. Loveden v. Loveden, 2 Hagg., 3, distinguished and explained. It was proved that the alleged paramour of plaintiff was spoken of as his wife, and supposed to be such from the fact of her being at plaintiff's rooms every day, attending to The alleged paramour of plaintiff was called by defendant as a witness. Held, That defendant may not now say she is untruthful and unworthy of belief; it may be argued or shown by the testimony of other witnesses that she was mistaken in her testimony, but she cannot be impeached or assailed. 15 Ad. & El., N. S., 878; 3 Curt., 86; 2 Wend., 166; 4 N. Y., 303; 46 Id., 683; 44 How. Pr., 472. Judgment of General Term, affirming judgment dismissing complaint, reversed. Opinion by Folger, J. All concur. INJUNCTION. SURROGATE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Decided January 4, 1878. Equity, test the right of a petitioner to The Surrogate does not possess equitable power to prevent abuses in the administration of justice. Appeal from an order refusing an injunction. |