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THIRD DEPARTMENT, MARCH TERM, 1898.

[Vol. 27.

Henry H. Lyman, as State Excise Commis- | Mary Sheehan, an Infant, by Dennis Sheesioner v. John E. Dwyer and Forty Others.

Defendants' motion for judgment, etc., denied, and plaintiff's motion for stay granted. Louisa A. Mead, Respondent, v. Harriet R. Heath, Appellant, Impleaded with Clara E. Godfrey and Others.-Judgment affirmed, with costs. No opinion. All concurred. Anna Moran, Respondent, v. The Village of Fort Edward, Appellant.-Judgment and order affirmed, with costs. No opinion. All concurred.

In the Matter of the Application of Roderick Morrison and George W. Van Allen to Discontinue a Highway in the Town of Bethel, Sullivan County, N. Y.- Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred. Martha Palmer, Respondent, v. Helen C. Palmer and Others, Defendants; Martin Dwight Palmer and Others, Appellants. - Judgment affirmed, with costs. No opinion. All concurred.

The People of the State of New York ex rel. William J. Matheson & Co. (Limited), Relator, v. James A. Roberts, as Comptroller of the State of New York, Respondent.-Determination of the Comptroller confirmed, with fifty dollars costs and disbursements. No opinion. All concurred.

Matilda H. Reynolds, Appellant, v. The Westchester Fire Insurance Company and Arthur W. Sherman, Respondents.-Judg. inent affirmed, with costs. No opinion. All concurred.

han, Guardian ad Litem, Respondent, v. Mary Wait, Appellant.- Judgment and order affirmed, with costs. No opinion. All concurred.

Edward O. Smith, by M. Louisa Smith, his Guardian, Respondent, v. Henry Bedeau, Appellant. - Judgment affirmed, with costs. No opinion. All concurred.

Rosa Brown, Respondent, v. The German Sick and Aid Society of Rondout, Appellant.Judgment and order affrmed, with costs. No opinion. All concurred.

Jed H. Griffin, Appellant, v. William Barton, Respondent.-Judgment affirmed, with costs. No opinion. All concurred.

Guy Lamkin and Alfred S. Foster, Respondents, v. Harris Rosenthal, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred. In the Matter of the Judicial Settlement of the Accounts of J. Spencer Hosford and Edward P. Van Alstyne, as Executors of the Last Will of Barent Van Alstyne, Deceased.-Decision modified so as to read "Decree reversed, new trial or hearing, before the surrogate granted, costs of this appeal to the appellant payable out of the estate." In the Matter of the Probate of the Will of Jane E. Lansing.-Decision modified so as to read, So much of the decree as was appealed from, to wit, the order therein directing that letters testamentary be issued to the persons therein named, affirmed, with ten dollars costs and disbursements."

INDEX.

ABATEMENT — Revivor of an action — when not denied because of laches.]
A motion to revive and continue an action based on negligence, made more
than three years after the death of the plaintiff, who had brought the action
as the executrix of her deceased husband, by a person who had less than
three months previously been appointed administrator with the will annexed
of the husband, should not be denied on the ground of laches.
PRINGLE v. LONG ISLAND R. R. Co....

ACCIDENT- Resulting from negligence.

See NEGLIGENCE.

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ADVERSE POSSESSION -

· A continuance in possession, after a sale under

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See CHURCH v. HEMPSTED..

Of a railroad embankment.

See TAYLOR v. NEW YORK & HARLEM R. R. Co.....

ADVERTISEMENT - Foreclosure by advertisement-where the mortgage
has been assigned as collateral security the assignment must be mentioned in the
proceedings.

See MORTGAGE.

AGENCY Generally.

See PRINCIPAL AND AGENT.

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APPEAL- Review of an exception to the sufficiency of proof, although the case
does not state that it contains all the evidence.] 1. An exception to the denial
of a motion made to dismiss the complaint upon the ground that the defend-
ant has not been shown to have been negligent, enables the Appellate Division
to review the question of the defendant's liability upon the proof submitted
by the plaintiff as it appears in the case on appeal, although there is no certifi
cate that the case contains all the evidence. Such an exception in the pro-
posed case is notice to the plaintiff of an intention on the part of the defend-
ant to raise the question of the sufficiency of the plaintiff's proof, and imposes
upon the latter the responsibility of adding to the case by amendment any
proof which may be necessary to sustain the ruling made upon the trial.

WYNNE . HAIGHT..

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2. ·Dismissal of a complaint on the opening-facts considered on an appeal.]
Where a complaint is dismissed upon the opening of counsel at the trial
of an action, all the facts alleged in the complaint and also those referred to
in the opening, even though they are not stated in the complaint, should be
considered on an appeal, unless they are objected to upon the specific ground
that they are not admissible under the pleadings. SCOTT. THE MAYOR.... 240

3. Stay of proceedings on appeal — it must be applied for in the appellate
court.] An application for a stay of proceedings upon an appeal must be
made in the court in which the appeal is pending, and not in the court
from which the appeal is taken. VAN ORDEN . VAN ORDEN...

-

Executors an oral renunciation of an executorship, made in open
court, is valid review by the Appellate Division of a surrogate's exercise of his
discretionary power to permit its retraction.

See MATTER OF BALDWIN

When errors in regard to the admissibility of evidence in a criminal action
cannot be disregarded.

See PEOPLE 2. SHINBURNE...

-

APPELLATE DIVISION — A justice of the Appellate Division cannot
receive a verdict · - consent of counsel does not confer jurisdiction - no estoppel is
created thereby.

-

See COURT.

APPOINTMENT

See POWER.

ARBITRATION

-

Power of

-

Action by a contractor against a city board of education
for extra work -effect of a release and a stipulation as to the manner in which
the claim should be determined.

See DWYER . BOARD OF EDUCATION.

ARCHITECT'S CERTIFICATE:

See CONTRACT.

ASSAULT Municipal corporation — liability of, for an assault committed
by its employees while removing incumbrances from the street — who are public
officers and who agents of the city.

See SCOTT . THE MAYOR.

ASSIGNMENT General assignment for creditors—an attorney, who has
loaned money to the assignor, upon security, for himself and for his clients, may
be compelled to testify in order to enable the assignee to make an inventory.] 1.
An application, made under the General Assignment Act (Laws of 1877,
chap. 466,21), by a substituted general assignee, to examine (in order to
enable the assignee to make an inventory) an attorney who is alleged to hold
property of the assignor, and whose opposing affidavit shows that he has
loaned money to the assignor for which he holds security, will not be denied
merely because the attorney also states that he was concerned in other loans

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424

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240

ASSIGNMENT― Continued.

made by certain of his clients to the assignor, as the attorney may properly
be examined in regard to his individual transactions, and the court can suffi-
ciently protect him from being compelled to disclose any privileged communi-
cations made to him by his clients in regard to their loans.

MATTER OF MERRIAM

-

2. For the benefit of creditors - a retention by an assignor of a substantial
sum of money, accompanied by proof of prior fraudulent transactions and suspi-
cious transfers to relatives, authorizes its being set aside.] The withdrawal
from a firm bank account by one member of a firm, on the day of the execu-
tion by it of a general assignment for the benefit of creditors, of nearly $1,800,
and the application of at least $450 thereof to the personal use of such
partner, when taken in connection with proof that the firm business had been
for a long time fraudulently conducted, and that the assignors had, while in
a failing condition, made large and suspicious transfers of firm property to
their relatives, justifies a finding that the assignors, in contemplation of
insolvency, deliberately withdrew a substantial sum of money from the funds
of the firm and withheld it from the assignee. FELDSTEIN v. RICHARDSON..
Proof of a transfer of rights acquired under a contract.
See HIX v. EDISON ELECTRIC LIGHT CO....

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ATTACHMENT - When information received over a telephone from an attor-
ney is not a sufficient basis for it.] 1. An affidavit of the managing clerk of
an attorney in New York city which states that he had received a communi-
cation over the telephone, coming from Philadelphia and from an attorney
there whose voice he recognized, in which that attorney stated that a person in
Philadelphia had assigned his claim against certain non-residents of the State ·
of New York for a certain sum which such non-residents had promised to pay,
and, also, that there were no offsets or counterclaims against it, and that the
amount of the claim had been admitted by the alleged debtors, is insufficient
to justify the issue of an attachment in an action brought by the assignee
against such non-residents, the communication being not only merely hear-
say, but there being no statement in the affidavit that any person who had
knowledge of facts tending to establish a cause of action had made a state-
ment of such facts. ANDREWS . SCHOFIELD... . . . .

2.

A defend-

When a defendant may move to vacate an attachment.]
ant may, under the provisions of section 682 of the Code of Civil Procedure,
move to vacate a warrant of attachment before any property has been
attached, or at any time before attached property or its proceeds have been
applied to the payment of the judgment rendered in the action. Id.

3. When rule 37 of the General Rules of Practice, as to specifying irregu
larities, is inapplicable.] Where a defendant's motion to vacate an attachment
is based upon the ground that the facts stated afford no basis for an attach-
ment, rule 37 of the General Rules of Practice, requiring a notice of motion
to specify the irregularity attacked, has no application. Id.

4. Insufficient certificate of a third party as to property of the attach-
ment debtor-right of the creditor to an order of examination.] Section 650
of the Code of Civil Procedure, requiring a third person, indebted to or
holding property of an attachment debtor, to furnish the sheriff with a cer-
tificate under his hand specifying the amount, nature and description of
the property or debt, is not complied with where such third party
gives a certificate in the form: "We beg to state that we have no funds
for account of" the defendants; and the attaching creditor, upon an affi-
davit tending to show that such third person is in possession of certain
property of the attachment debtor, becomes entitled, under section 651 of the
Code of Civil Procedure, to an order for his examination.

WESTERVELT . MARINO....

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248

90

267

ATTACHMENT - Continued.

5. A subpana duces tecum is improper.] A subpoena duces tecum is
not properly issued in such a proceeding. Where the production of books
and papers is deemed necessary, it should be directed by the justice before
whom the examination is had. Id.

PAGE.

ATTORNEY AND CLIENT - Admission to the bar — refused to an Italian
on proof of three years' good standing as an attorney in the higher courts of
Italy.] 1. An application for admission, as an attorney, of an Italian of
good character, a naturalized citizen of the United States, who has been
for more than three years an attorney of good standing in the higher courts
of the kingdom of Italy, it was considered should be denied, for the reason
that the jurisprudence of the State of New York is based upon the State
and Federal Constitutions, interpreted in accordance with the principles of
the common law, while that of Italy rests upon the Civil Code of the
Roman Empire, modified by the customs, statutes and judicial decisions of
that country, and that consequently there is no presumption that an Italian
attorney is sufficiently familiar with our laws properly to advise clients in
respect thereto. MATTER OF MAGGIO..

2.

129

Unjustifiable attempt to disbar an attorney.] In this proceeding,
which was an application for the disbarment of an honorable and honored
member of the legal profession, the court placed on its record its decision
that the charges were utterly false and unfounded. MATTER OF DUNN..... 371
3. Abuse of the process of the court — power to punish the moving party as
for a contempt.] It seems, that the court has no power to punish an alleged
client for his abuse of its process by preferring unfounded charges of profes-
sional malfeasance against an attorney for the purpose of procuring his dis-
barment. Id.

4.

The interest of an attorney in a recovery protected.] If an attorney
desires to prosecute an action in the name of his client, but for his own
benefit, he will be permitted to do so upon condition that he assumes liabil-
ity for any costs which the defendant may recover in the action.

O'BRIEN v. METROPOLITAN STREET R. Co..

General assignment for creditors—an attorney, who has loaned money
to the assignor, upon security, for himself and for his clients, may be compelled
to testify in order to enable the assignee to make an inventory.

See MATTER OF MERRIAM.

Malicious prosecution—facts justifying an action therefor - — an attorney
verifying the information under which the warrant of arrest was issued, cannot
claim the protection of professional privilege.

rendered

See WHITNEY. NEW YORK CASUALTY INS. ASSN....

Assignment of prospective costs on appeal to an attorney for services to be
-effect thereof upon a set-off of other costs against them.
See MATTER OF HAVEMEYER....

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ATTORNEY'S REGISTER- Entries in an attorney's register as proof of
the issue of an execution.

See EVIDENCE.

AUBURN Auburn fire department authority of the board of fire commis-
sioners to dismiss volunteer hose company organizations—“ person aggrieved"
who may apply for a writ of certiorari.

See PEOPLE EX REL. HEALEY . FIRE COMRS.

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