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CONSTRUCTION OF STATUTE. same subject when and only to the

N. Y. COURT OF APPEALS. extent that they are repugnant and People ex rel. Ross et al., respts., cannot stand together, is not inconsisv. City of Brooklyn, applt.

tent with the rule that when two statDecided May 22, 1877.

utes are enacted upon the same gen

eral subject, the latter may abrogate If there is a plain contrariety between two acts

of the legislature, so as clearly to indicate an the former, although not entirely reintention to repeal the earlier act, it is suf- pugnant, if it is apparent that the ficient to repeal it, although the latter act legislature intended the latter to be a contained no express words of repeal.

substitute for the earlier, in whole or This was a motion for re-argument. in part. Chapter 213, Laws of 1859, is by its

Motion for re-argument denied. title declared to be amendatory of

Opinion by Allen, J. All concur. former acts in relation to assessments for local improvements in the city of Brooklyn, and provides that no pro

PRACTICE. ceeding for improving streets should N. Y. COURT OF APPEALS. be taken by the Common Council of In re application of N. Y. C. & H. said city, except as therein provided. R. R. R. Co. to acquire lands of Rau. Chapter 444, Laws of 1860, professes Decided June 19, 1877. by its title to amend the act of 1859. In proceedings by a railroad company to acquire Chapter 169, Laws of 1861, was en

lands, the petition must contain an accurate acted as "An act relative to local im

description of the property; defects in the

description in the petition cannot be remeprovements in the city of Brooklyn," died by reference to another instrument. and does not by its title, or in the In proceedings by a railroad corbody of the act, profess to amend or poration to acquire lands under Chapbe supplementary to any other act, ter 140, Laws of 1850, as amended by out provides for the improving of Chapter 237, Laws of 1869, the provistreets in a manner different and in sion of the statute ($ 14, chap. 140, some particulars contrary to the pro- Laws 1850) that the petition must visions of the Act of 1859 as amended contain a description of the real estate by the Act of 1860.

sought to be acquired is not complied P.S. Crooke, for motion.

with unless the description is such as W. C. De Witt, contra.

will show the location of the land and Held, That the Act of 1861 repealed its boundaries. The description must the former act so far as full provision be contained in the petition, and refwas made in it for local improvements. erence to another document cannot be If there is a plain contrariety between had to remedy defects in the descriptwo acts of the legislature so as clearly tion. to indicate an intention to repeal the Order of General Term, affirming earlier act, it is sufficient to repeal it, order of Special Term appointing although the later act contained no commissioners, reversed. express words of repeal.

Per curiam opinion. The rule that a later statute only All concur, except Allen, J., taking repeals a former statute upon the I no part.

names

CONSTITUTIONAL LAW.

any property taken, with the owners' COSTS.

and amount of damages N. Y. COURT OF APPEALS. awarded, and a general description of People ex rel. Kilmer et al., applts., the property. They only stated the v. Cheritree et al., respts.

owner's names, with amounts awarded Decided June 12, 1877.

to and assessed against each. Their

return shows that they examined the The legislature may legalize the irregular or

even void acts of commissioners appointed property, had it surveyed and mapped, to condemn lands for public use.

showing the feet and inches owned No costs are allowable on a common law cer- by each person; that this map, which tiorari.

was annexed to their return, was their This was an appeal from a judg- guide in ascertaining the quantity of ment of General Term rendered upon land of each person to be taken for common law certiorari brought to the improvement. The commissionreview the report of commissioners of ers were regularly appointed. assessments in proceedings, to take A. Pond, for motion. lands in invitum.

L. B. Pike, contra. This was a motion for a re-argli- Hell, That although the commisment upon the merits, on the assump- sioners failed to comply with some tion that the Court overlooked the of the formalities of the original act, fact that, in this case, land was taken they having been regularly appointed, for public use, and that the proceed- the awards having been made by ings of the commissioners appointed thom, the legislature had the power to appraise the lands, having been to cure the defects in their proceedheld invalid, the legislature could not ings. confirm their proceedings; that their The judgment appealed from was report was a nullity, and when the with costs. This court affirmed the act confirming the proceedings was judgment below without costs, on passed (Chap. 256, Laws of 1874) no the ground that the confirmatory act land had been taken for public use, was passed after this proceeding was and that giving effect to that act re- instituted. The appellant's counsel sults in allowing the legislature itself insisted that for the same reason the to take the land and make the ap- judgment of the General Term should praisal in violation of section 7 of be modified by striking out the article 1 of the Constitution, which award of costs to respondent. provides that the compensation for Held, That costs are not allowable land taken for public use, when not on a common law certiorari. to be made by the State, shall be as- Motion denied, but remittitur certained by a jury, or by not less amended so as to modify the judgthan three commissioners, appointed ment appealed from by striking out by a court of record. The commis- the allowance of costs. sioners failed to comply with the pro- Per curiam opinion. All concur. vision of the act, which required them to state in their report the quantity of land, and the value of

CORPORATION. REMEDY. certify them to the Common Council,

N. Y. COURT OF APPEALS. who were to proceed forth with to Tone, Admr., etc., applt., v. The confirm such assessment, or refer it Mayor, etc., of N. Y., respt.

back to said board of assessors, if Decided June 12, 1877.

necessary,

for revisal and correction. Where a muncipal ordinance provides that the By Chapter 308, Laws of 1861, this

last payment upon contracts for street im- power of the Common Council relative provements shall only be made after an to assessment lists and their confirassessment has been made and confirmed by mation, was rested in the “ Board of a board of officers, no action will lie against Revision and Correction of Assessthe corporation until after the assessment is confirmed, even though the board wrong

ments." The assessment had been fully refused to proceed with the assess- presented by the assessors

to the ment; the party aggrieved should proceed « Board of Revision and Correction of against the board by certiorari

, mandamus Assessments," who referred it back to or other proper remedy. A muncipal corporation is not liable for the the assessors.

negligence or omission in the discharge of Jno. H. Strahan, for applt. his public.duties of a public officer.

A. J. Requier, for respt. Plaintiff's intestate contracted with Held, That plaintiff could not sue defendant to do some work on one of the city for the final payment upon its streets, the expenses of which the contract until a confirmation were to be ultimately assessed upon thereof by competent authority ; that the property benefitted. An ordi- if said board returned the assessment nance passed some time before was for a reason wrong in fact or law, referred to in the contract, and made they still acted in a matter over a part of it. This ordinance regu- which they had jurisdiction, and if lated the mode of making payments their directions were illegai, the ason such contracts, and provided sub- sessors might disobey them, and stantially that the final payment again certify the assessment lists to should not be made itil the assess thein, or any party aggrieved could ment for the work had been con- review their action by certiorari; or firmed by the common council. This they and the Board of Assessors could action was brought to recover the by mandamus be compelled to take final payment on the contract, and such legal action as was necessary to the defence was that the assessment complete and confirm the assessment had not been laid or confirmed. It lists. In the discharge of its duty was provided by Chapter 302, Laws of the Board of Revision and Correction 1859, that three commissioners should acted as independent public officers, be appointed by the Comptroller of engaged in the public service, and the city, who should form a board, to for any negligence or omission in the be designated “Commissioners of discharge of their duties no action Taxes and Assessments” and that would lie against the city, and it was they should appoint a “Board of not estopped from setting up the Assessors," who should make the want of confirmation of the assessestimates and assessments for streets, ment as a defence. Dil. on M. Corp., and other local improvements, and I 772, 62 N. Y., 164.

Judgment of General Term, affirm- execution was granted, restraining ing judgment for defendant, affirmed. defendant from transferring or mak

Opinion by Earl, J. All concur, ing any disposition or in any way inexcept Miller, J., dissenting. terfering with any of his property

until further order. This was served SUPPLEMENTARY PROCEED- on defendant; August 20, 1875. On INGS. CONTEMPT.

August 26, the defendant drew a N. Y. SUPREME COURT. GENERAL

check on the bank in his wife's name TERM. SECOND DEPT.

at her request payable to one Frost

for a debt of defendant's wife. This Dean v. Hyatt. Decided June, 1877.

check was to be paid by part of the

$200 remaining of the $1,500. In order to support a conviction for contempt The defendant was adjudged guil

of an injunction in proceedings supplementary to execution, the legal title to the ty of a violation of the order and of property, the transfer of which forms the a contempt of Court, fined $307.90. contempt, must be proven to be in the ac- and ordered to pay $70 costs. From cused.

this order he appeals. About sixteen years ago defendant Iheld, The money was a part of the purchased a farm for $7,000. Ile insurance paid. The plea that the paid $2,000 in money and $5,000 by policy was in defendant's name might bond and mortgage on the farm. have enabled the Insurance Company The $2,000 belonged to his wife. He to have avoided payment, but is of no however took the deed of conveyance avail here. Of no more avail is the in his own name. In 1870 defendant plea that the draft was payable to deconveyed the property to his wife fendant's onler. Defendant's duty in through a third person. She subse- the premises was to transfer the draft quently paid $1,000 on the mortgage. by indorsement and delivery to his The buildings on the farm were in- wife, and this he did and the legal sured before this transfer in the name title passed and vested in the wife. of defendant, but the policy was not The legal title to the buildings was in changed after it. In 1875 the build the wife and as between her and her ings were destroyed by fire. The husband the money received for their loss was paid by the insurance com- loss belonged to her. Plaintiff's case pany by a draft to the order of de- is not aided by the plea that the transfendant, which he endorsed to his fer of the farm and of the draft was wife and deposited to her credit. All in fraud of the rights of creditors. but $200 of this was used in rebuild- If this be so, a proper action being ing. In 1874 defendant became in- brought, this transfer would be set debted to plaintiff for oxen sold de- aside. But the defendant has been fendant. In July, 1875, judgment punished for transferring his property in this action was obtained against after the Court had commanded him defendant for this indebtedness. An not to do so, and to support the conexecution issued and returned viction it must be shown that he did unsatisfied. On August 18, 1875, an

1875, an so transfer. The facts show that he order in proceedings supplemental to had not the legal title to that which

та

cur,

woman.

he transferred. Conviction reversed is her right and the denial was erwith costs.

roneous. The allegations that deOpinion by Dykman, J. All con- fendant is a married woman, and that

the materials furnished were for the

benefit of her separate estate are PRACTICE.

special and proper in a complaint in N. Y. SUPREME COURT. GENERAL an action at law against a married

TERM. SECOND DEPT.
J. T. E. Litchfield, respt., v. Caro-

The demand for a money judgment line Dezendorf, applt.

shows this to be an action for the reDecided June, 1877.

covery of money only. The prayer Where, in an action against a married woman

for the application of the separate for goods sold, the complaint demands that estate to the payment of the judg. her separate estate be applied to the payment and for the appointment of a ment of the judgment, and that a receiver receiver does not change this fact. of such estate be appointed, the action is not thereby changed to an equitable one so The provisions of S$ 274 and 287 of as to deprive her of her right to a trial by the Code show that the judgment jury.

demanded in this action may be enThe complaint in this action alleges tered and enforced against defendant that defendant is a married woman: as if she were single by a procedure that she owns in fee a lot of land appropriate to an action at law. . therein described; that the plaintiff This action is then one at law and the sold to her at her request lumber and right of the defendant to a trial by building materials worth $901.97; jury is perfect and can not be dethat $400 only has been paid ; that nied. said materials were furnished for the Order reversed with costs. benefit of, and did benefit defendant's

Opinion by Dykman, J. separate estate, and were used in construction of buildings on said real estate. That $500 and interest is now

FORECLOSURE. due and owing plaintiff, for which CITY COURT OF BROOKLYN. sum and costs judgment is demanded; Russell v. Weinberg et al. plaintiff also demands that defendant's Decided August, 1877. separate estate be applied to the pay- Where the mortgaged property has been sold ment of the judgment, and that a re- to a third party who assumes the payment ceiver be appointed to take possession of the mortgage, the mortgagee must foreof these premises. The summons is

close the mortgage when due if requested

to do so by the mortgagor; and in case of for relief. At Special Term a motion

refusal or neglect so to do and subsequent was made on the part of defendant

depreciation in value of the property, the to strike the cause from the calendar mortgagor will not be liable for a deficiency. of that Court and was denied, and The defendant McCrum, after this appeal is from that denial. making the mortgage in suit, con

Ileld, The motion was based on the veyed the mortgaged premises to deright of the defendant to a trial by fendant Weinberg, she assuming the jury. If this be an action at law this payment of the mortgage. Upon the

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