to the County Court should have been upon
questions of law only.
Id.
4 Where the notice of appeal from a justice's
judgment states that it is for a new trial in
the County Court, the Justice need not return
the testimony taken before him. McCann v.
Sheeke.
420

5 Where the return of the Justice does not
show that issue was joined before him, there
can be no trial of any issue of fact in the
County Court.
ld.

6 When the County Court dismisses the ap-
peal in such case, it is erroneous to award a
Id.
judgment against the appellant.
See COUNTY COURT; COSTS, 12, 13; Evi-
DENCE, 26.

APPOINTMENT.

1 An appointment of excise commissioners un-
der chap. 175, Laws of 1870, by parol is not
valid; the appointment is not complete until
a commission has been signed. The People ex
rel. Babcock v. Murray.
350

2 A resolution of the Common Council confirm-
ing the appointment of a clerk of the Court by
a justice must be affirmed by the Mayor, or
returned to the Common Council and again
passed by a two-thirds vote before the appoint-
ment is complete. The People ex rel. Ennis v.
Schroeder.
414

See NEW YORK MARINE COURT, 2; SUR-
ROGATES, 8, 9, 10.

APPROPRIATION OF LAND BY STATE.
See CANALS; CONSTITUTIONAL LAW, 1.

ARBITRATION AND AWARD.

1 Where a matter is submitted to arbitration
by which damages are to be awarded or value
of property is to be fixed or ascertained, the
arbitrators must use the usual means to ascer-
tain such value, and the parties are entitled to
be heard, and to produce witnesses, unless
such privilege is waived; and where the
parties have such rights before arbitrators
chosen by themselves, who are in case of dis-
agreement to choose an umpire, they are en-
titled to notice of appointment of such umpire,
and an opportunity to be heard by him, and a
waiver of such right in regard to those origi-
nally chosen will not be construed a waiver in
regard to such third person. Brown v. Lyddy.

38

2 An award of arbitrators that all the causes
of action referred to them were merged in
and satisfied and discharged by a certain con-
tract between the parties, and ordering judg-
ments dismissing the complaints, and which
concludes by saying that the award is "not in-
tended to determine any of the rights of either
of the said parties arising under" said con-
tract, is not final or definite, and should be set
aside. Jones, Assignee, v. Welcood et al. 522

pendent on and connected with the other
points, that a partial award will be sustained.
ld.
ARREST.

1 An order of arrest may be granted in an ac-
tion for limited divorce on account of cruel
and inhuman treatment. Jamieson v. Jamie-
son.
95

2 Where one sells goods for another, the
goods to be shipped directly to the purchaser,
and the proceeds to be collected by the agent
has made the sales on terms different from
and paid over, he is a factor; and where he
those authorized, and fails to pay over the mon-
eys collected, he is liable to arrest, and cannot
set up his own fraud to shield himself from
such responsibility. The Standard Sugar Re-
finery Co. v. Dayton.
136

3 The principal may waive the variance in the
terms, and claim the proceeds.
ld.

4 An order of arrest in such case can be sus-
tained on the ground that the debt was fraud-
ulently contracted.
Id.

5 Where possession of property has been
fraudulently acquired under circumstances
justifying its reclamation by the vendor, and
the fraudulent purchaser has sold it with in-
tent to perfect the fraud, and put it beyond
the vendor's control, an order of arrest will
lie. Barnett v. Selling.
190

6 A prima facie case for an order of arrest is
made by affidavit of fraud in the original pur-
chase, and of the intent with which the goods
were sold.

Id.

1 An indictment for arson in the third degree
need not negative the exceptions made in the
statute and allege that the store or ware-
house burned was not adjoining or within the

338

ASSAULT AND BATTERY.

1 In an action for an assault and battery com-
mitted in ejecting plaintiff from premises be-
longing to defendant, the plaintiff has a right,
for the purpose of showing his good faith in
making the entry, to show that he had been
accustomed to pass over the premises in ques-
tion for a great number of years under a claim
of right founded upon an exchange of lands.
Borst v. Zeh.
345
ASSESSMENTS.

1 An assessment on real estate in the city of
New York which exceeds one half the as-
sessed value of the property is invalid. In re
Cram.
91

2 In an action to vacate an assessment, where
there has been a valuation, the burden of
proof is on the plaintiff to show that the as-
sessment exceds one half the valuation. In
re Hebrew Benevolent 0. A. Soc.

110

3 On the question of reducing the assessment
the burden of proof is changed.
Id.

4 Where an assessment has been vacated and
set aside, the amount of such assessment paid
under protest may be recovered back; but, in
order to recover, plaintiff must show that the
payment made was involuntary, either in fact
or by law. Peyser v. The Mayor.
127

5 Where the proceedings of assessors of taxes
or assessments are regular on their face, they
have the force of a judgment, and amount to
a coercion by law.
ld.

6 In order to succeed in a proceeding to vacate
an assessment for a street pavement in the
city of New York, on the ground of payment
of a prior assessment for paving the same
street, the plaintiff must prove actual pay-
ment. Payment, in such a case, will not be
presumed from lapse of time. In re Willett.

164

8 Where the Commissioners to assess the dam-
ages and recompense were appointed according
to the law in force at the time, but not in ac-
cordance with the provisions of the Constitu-
tion, the proceedings were thereby rendered
void.
Id.

9 Property owners, whose lands are assessed
for repaving done subsequent to the 7th of
May, 1872, are not within the saving clause
contained in 7 of ch. 580, Laws of 1872;
nor can they claim to be within the amenda-
tory act of 1874, where the work was com-
pleted prior to the passage of said act. In re
Peugnet.

199

10 An allegation that the petition of property
owners for the repaving of a street was not in
fact made by a majority of the owners of
property fronting on such street, but was

fraudulently made up and had appended to it
a large number of names of persons who did
not sign it, but whose signatures were taken
from another document, is sufficient to sustain
an action to vacate the assessment. Boyle v.
219
City of Brooklyn.

11 There is nothing in the Act of 1840 restrict-
ing the comparison of value to the year in
which the assessment is made. In re St.
Joseph's Asylum.
223

12 Interest can only be charged from the time
the assessment is fixed according to law. ld.
13 Where proceedings to levy an assessment
for a sewer in a village are regular and in ac-
cordance with the charter of the village, and
the invalidity can only be shown by matters
dehors the record, an action in equity may be
maintained by persons whose property is as-
sessed, upon the ground that the assessment is
a cloud upon the title. Clark et al v. Village
of Dunkirk.

354

ITORS.

Court will not grant an absolute order impris

2 The mention of a nominal consideration in such an assignment is not material where the other parts of the instrument show the intention to be to create a statutory trust, and to convey no other estate or interest than is required for that purpose. ld.

3 A general assignment for the benefit of creditors, without preferences, which confers authority upon the assignee to sell the property "to the best possible advantage," is valid on its face. Judson et al. v. Abeel et al.

221

this section. The Revised Statutes seem to intend that upon the return of an attachment, the party shall have an opportunity to excuse his misconduct. Morrison v. Lester.

211

5 Where, on motion to vacate an attachment, the moving affidavits completely controvert all the material allegations contained in the affidavit upon which the attachment was granted, the appellate Court cannot say there was error in vacating the attachment. Van Allen v. Sampson. 258

6 An affidavit to obtain an attachment under

635 of the Code of Civil Procedure must allege that plaintiff is entitled to the amount claimed, " over and above all counter-claims known to him;" an omission of such an allegation is fatal. Taylor v. Reed. 306

576

2 A sheriff cannot attach property in the hands of a carrier for which bills of lading have been issued, without giving the bond of indemnity required by the statute and the common law; where he does so his act is a trespass and he is liable to the carrier for the value of the goods. Campbell v. Conner. 203 3 Where the attachment is levied upon an execution in the hands of the sheriff, the notice showing the property levied upon, required by 325 of the Code, is unnecessary. Wehle v. Conner.

206

4 The phrase "attachment," as used in § 321 of the Code of Procedure, designates attach

An order for the discharge of an attachment, granted upon an application under 687 of the Code of Civil Procedure, should state whether the discharge applies to the whole of the property attached, or to part only; and if so, to what part. It need not contain directions as to the manner of redelivery unless called for by special circumstances. Ellsworth v. Scott. 361

8 No action on attachment can lie till after

judgment in reaching equitable assets. Conner v. Weber; Craig v. Weber.

457

3 Where a client has agreed with his attorney that the latter shall receive a percentage on the recovery, the attorney has a lien upon the judgment recovered by him for his costs and counsel fee, and to that extent he is to be regarded as an equitable assignee; but to nullify a settlement the proof of notice of such lien must be satisfactory. Wright v. Wright. 4 A notice of such lien contained in a stipulation to extend time to answer, which is not acted on, is not sufficient. Id.

97

5 Where, in an action by an attorney and counsellor for legal services rendered, the contained about sixty-eight items, nearly half account covered a period of seven years and

of which were disbursements, and all but three of the remainder were statutory costs, and where the answer alleged full payment for all services rendered, and set up negligence and

unskilfulness to defendant's damage by way of counter-claim, both the account and the issues should properly be brought before a jury. Bradley v. Eager. 330

6 A plaintiff in an action for a mere personal tort cannot give to his attorney or any one else an interest in the cause of action until judgment has been recovered. Coughlin v. The N. Y. C. & H. R. RR. Co. 562

7 Where an agreement to do so has been made between the plaintiff and his attorney, the Courts will not intervene to protect the attorney against a settlement made by his client. Id.

8 Where an attorney agrees to collect certain claims, for the amount of taxable costs in the action brought for that purpose, such costs to be deducted from the amount collected, and he dies while some of the actions are pending and undetermined, his estate is entitled to deduct the amount of taxable costs in such pending actions accruing up to the date of his death, unless it is shown that he was guilty of such negligence or want of skill as would defeat or reduce his claim for services rendered. Seymour et al. v. Cagger.

See PRACTICE, 34; REFERENCE, 6, 9.

AUCTIONEERS. See BAR, 2.

BAILMENT.

595

10 When a private banker obtains from a bank an advance on his check on New York, and upon the same or the following day delivers securities to the bank, stating at the time that he has reason to fear his check will not be met. the transfer of the securities is a fraudulent preference under the Bankrupt Law. ld. 11 Holders of orders drawn by an insolvent prior to the commencement of proceedings in bankruptcy, payable out of a particular fund are entitled to be paid in preference to the 322 assignee. In re E. M. Smith.

12 The discharge in bankruptcy of an appellant, pending the appeal, will not release the sureties on the undertaking. Knapp et al. v.

Anderson et al.

503