1. Chap. 171, Laws of 1882, amending Chap. 395, Laws of 1881, has relation only to abandonment in the County of Kings, and does not authorize proceedings against a husband who abandoned his wife in another state, although she after- ward moves into Kings County.-The People ex rel. Drake v. Bergen, 512.
2. The words "leaves them " in said stat- ute refer to the original leaving.-Id. ABATEMENT.
See DIVORCE, 2; NEGLIGENCE, 22; SLAN- DER, 1.
1. When a principal, intending to create a special agent with power to do a single act, negligently executes and puts forth a general power of attorney under which the agent acts, the principal is bound as between himself and a third person act- ing in good faith. Dietrick v. The Fire- mens' Fund Ins. Co., 16.
2. A. had in his possession certain wheat which he treated as his own and sold to defendants, taking their note to himself for the price. Defendants supposed the wheat belonged to A.. but his wife was the real owner. Defendant afterward purchased a note made by A., which they
proposed to set off against their note, held by A. On suit upon defendant's note, Held, They could not set off more than the amount they actually paid for A.'s note. -Nichols v. Martin et al., 20.
3. If a factor sells in his own name as the owner and does not disclose his principal and acts ostensibly as the real and sole owner, the purchaser, if he bona fide dealt with the factor as owner, may set off any claim he may have against the fac- tor in answer to an action on the contract brought by the principal, but when the buyer before the receipt and delivery of the articles purchased acquires such no- tice or information of the fact that the factor is not the owner of the goods as indicates the propriety of further inquiry as to their ownership and he fails to make such inquiry he is chargeable with knowledge of such facts as the inquiry would have disclosed and he cannot set up a claim against the factor in answer to an action brought by the principal.- McLachlin et al. v. Brett et al., 132.
4. Plaintiff asked M., an attorney, whether he knew where she could invest $2.000 on a first mortgage. He said he did not, but would let her know if an opportunity came. A few days after defendant went to M. and asked if he knew where defend- ant could get a loan of $2,000. Defendant said there were two small mortgages on his farm; that he wished these paid but not cancelled, to be held as collateral se- curity to the new $2,000 mortgage. M. communicated with plaintiff, who said she would take only a first mortgage, to which M. replied that the two small mortgages should be paid and satisfied. Defendant executed the mortgage. M. gave him a memorandum of the transac- tion and withheld the sums due on the small mortgages, stating in the memo- randum that the latter were to be paid and assigned to plaintiff. Plaintiff never saw defendant during the transac- tion and had no knowledge that the small mortgages were to be assigned and not satisfied. M. procured one to be as-
signed to plaintiff, the other was not so assigned and M. did not account to either party for the money in his hands to pay the other mortgage. Held, That M. was the agent of plaintiff and the loss must fall upon her.-Plass v. Brusie, 562.
See EVIDENCE, 16; FIRE INSURANCE, 5, 11; FRAUD. 6, 7.
1. The heirs of a deceased resident alien and of his blood are capable under our stat- ute of taking and holding land owned by him, whether they be citizens or aliens. —Maynard v. Maynard et al., 547.
2. Where such alien heirs are males of full age they must make and file the deposition required by law, and until they do so they take a defeasible title.-Id.
3. Where there are heirs competent to take the title in no case escheats to the State without the finding of an inquisi- tion.-Id.
1. In an action for divorce, the court in ex- ercising its discretion in granting an al- lowance should consider that in the end the party directed to pay money may be in the right and should provide as far as possible for such a contingency. It should ascertain what has been and will be the quantum and kind of litigation suf- ficient for the proper investigation of the issues.-Uhlman v. Uhlman, 282.
2. Where an allowance is asked for two counsel. the necessity for two counsel must affirmatively appear.-Id.
3. Modification of order as to amount does not necessarily carry a right to direction for repayment of excess.-Id.
4. Compliance with an absolute direction to pay is not taking a benefit under the order so as to prevent an appeal.—Id ·
5. The possession of a separate estate by a wife will not deprive the court of the ex- ercise of its discretion on her application, or absolutely bar her right to temporary alimony, but may be considered in meas- uring the allowance to be made.-Mer- ritt v. Merritt, 337.
See EXECUTORS, 1; PLEADING, 13, 14.
1. In an action to recover damages for in- juries received from defendant's dog,
where it appears that the dog had previ- ously bitten other persons and that de- fendant had notice thereof, evidence as to the peaceable conduct and disposition of the dog is inadmissible.-Caldwell v. Snook, 141.
2. The owner of a dog who permits it to follow her on the street is not liable for damages caused by its killing another dog while so following her.-Buck v. Moore, 217.
1. Where a demurrer was stricken out as frivolous and served in violation of a stipulation, and judgment was obtained by default, Held, that an appeal from the judgment alone brought up nothing for review.-Stoughton v. Lewis, 18.
2. The respondert is not precluded from moving to dismiss by the fact that he placed the case on the calendar and noticed it for argument.-Id.
3. The respondent served a notice of entry of judgment to limit an appeal in this action. More than sixty days afterwards appellant served by mail notice of appeal to the General Term. After this respond- ent gave appellant a written extension of time to serve a case, and the latter went on and got ready for argument. Upon a motion to dismiss the appeal because not taken in time, Held, that the court would regard the extension of time to serve a case as a waiver of the notice of entry of judgment.-Staats v. Garrett, 39.
4. As neither the existence of Chap. 151, Laws of 1882, amending Chap. 361, Laws of 1881, nor the Comptroller's practice thereunder, was within the issues in the action or could affect its determination motion for reargument was denied.-The People v. The Gold & Stock Tel. Co, 57. 5. An appeal from a judgment entered upon a verdict of jury raises questions of law only.-Bates v. Riordan, 134.
6. The only mode of reviewing the facts in such a case is by an appeal from an order granting or refusing a new trial.—Id.
7. The validity of an undertaking given under § 348 of the Code of Pro, depends upon its efficiency in securing to appel- lant the stay it was intended to enable him to obtain. The obligee cannot en- force such undertaking after repudiating it as a stay.-Hemmingway v. Poucher,
8. A motion to set aside an order appointing commissioners was denied and an appeal taken. Pending the appeal another mo- tion was made to set aside said order and also an order confirming the report, on the ground that the acts under which
the proceedings were had were unconsti- tutional. This motion was denied and appeal taken, which was heard and the order of denial affirmed. The first appeal was then dismissed on the ground that appellants were concluded by the order on the second motion. Held, error.-In reopening of Flushing Avenue, 206.
9. An appeal will not lie to the Court of Appeals from an order of General Term, modifying an interlocutory judgment in a specified manner and affirming it as modified. The judgment entered on such order remains simply an interlocutory judgment.-Weeks et al. v. Cornwell et al., 208.
10. No appeal lies from an order denying a motion for judgment upon the ground that the answer is frivolous.-Douglas v. Stockwell, 256.
11. An order of the county court granting or denying a motion for a new trial on the ground of newly discovered evidence rests in the discretion of the court, and is not reviewable by the Supreme Court,- Myers v. Riley, 280.
12. In an action not founded on contract the sum for which the complaint demands judgment is to be deemed the amount of the matter in controversy within § 191 of the Code.-Zoeller v. Riley, 284.
13. Where the Court of Common Pleas has affirmed a judgment of the City Court and judgment has been entered on its remittitur, an appeal to the Court of Ap- peals must be taken from the judgment rendered by the Common Pleas, and not from the judgment as entered.-The An- sonia B. & C. Co. v. Conner et al., 304.
14. Sections 3194, 3195, of the Code do not authorize an appeal to the Court of Ap- peals from a judgment of the City Court entered upon a remittitur.-Id.
15. The Court of Appeals has power to re- store in a summary manner only property or rights which have been lost by a judg ment which it has reversed: it cannot interfere under § 1323 to restore property which has been taken and sold under other judgments, even where the effect of the reversal is to decide that such prop- erty was taken from the party legally entitled to it. - Murray v. Berdell et al., 334.
16. Where an appellant has little or no property and one of the sureties on his undertaking becomes insolvent, and the other is not of much financial ability, the respondent is entitled to a new undertak- ing.-Mahon v. Noon, 361.
17. An appeal in a criminal action cannot
be taken solely from an order denying motion to set aside the indictment, but
such order may be reviewed on appeal from the judgment on conviction.-The People v. Havens et al., 364.
18. Plaintiff purchased certain boats at sheriff's sale subject to a mortgage of $6,700. Plaintiff claimed that only $5,700 is due on the mortgage, and brought ac- tion to redeem, alleging a tender of $5.700 and an offer to pay any further sum that may be found due. The court found that $6.700 was due and that plaintiff was en- titled to redeem on paying that sum with interest Held, That there was no ground on which an appeal by plaintiff could be upheld.-The Keuka Nav. Co. v. Holmes,
19. An appeal from an order of General Term granting a new trial in a criminal action will not lie to the Court of Appeals unless the order shows that the new trial was refused upon the facts and was granted only for errors of law.-The Peo- ple v. Poucher, 410.
20 An appeal will not lie to the Court of Appeals from an order of General Term reversing an order granting a mandamus in a case where, according to relator's contention, he has a sufficient remedy at law. The People ex rel. Dowdney v. Thompson, 413.
21. Whenever the character of the issues framed by the pleading is such that upon a new trial it would be possible for the defeated party to recover, upon a reversal the appellate court should award a new trial. Thomas v. The N. Y. Life Ins. Co., 443.
22. In an action for conversion of personal property the answer set up a purchase from the executrix prior to the issue of letters testamentary and payment there- for. The trial court found these facts and rendered judgment for the value of the property. The General Term reversed this judgment and gave judgment for nominal damages, Held, Error; that it should have ordered a new trial.—Id.
23. On appeal from a judgment in an action for services in negotiating railroad secur- ities it appeared that the evidence as to the value of the services would not war- rant the finding as to their value, and that no proof of their precise nature and extent was given. The General Term so found, but fixed the value at a lower sum and ordered judgment therefor. Held, that the General Term thereby exceeded its powers.-Lyddy v. Chamberlain, 497.
24. Judgment was recovered against de- fendant for $104 and costs and the present plaintiff was subsequently substituted on condition that he pay the attorney $800. The attorney agreed to take $630 and de- fendant paid him that sum in settlement
of the judgment. On motion to set aside an execution issued on said judgment it appeared that the attorney's compensa- tion was fixed by the written stipulation of the parties. Held, That as the motion involved a question of fact an appeal would not lie to this court.-Goddard v. Stiles, 551.
See ALIMONY, 4; ATTACHMENT, 1, 2; BILL OF PARTICULARS; DEPOSITIONS, 4; EXECU- TORS. 16; JUDGMENT, 1; MORTGAGE, 27; PARTITION, 2; PRACTICE, 2, 3, 6, 7, 15, 22, 24, 26.
1. One McS., a minor, was apprenticed to plaintiff, but during the term left without plaintiff's consent and worked for defend- ant. The contract of apprenticeship con- tained the first and third covenants pro- vided for in § 2 of Chap. 934, Laws of 1871 In an action to recover for the minor's services, Held, That plaintiff was not entitled to recover; that to do so he must show the existence of a valid con- tract of apprenticeship, and that the con- tract shown invalid.-Barton v. Ford, 235.
1. An order of arrest granted upon affida- vit stating facts sufficient to give the judge jurisdiction will protect against an action for false imprisonment the judge who granted it and the party who pro- cured it and instigated its service, al- though such order be afterwards set aside on proof of extraneous facts. Even malicious motives and the absence of probable cause do not give a party arrest- ed a cause of action for false imprison- ment.-Marks v. Townsend et al., 10.
2. An order of arrest for false and fraudu- lent representations should not be grant- ed upon an affidavit in which the falsity of the representation is alleged upon in- formation derived from a person named when it does not appear that an affidavit could not be obtained from such person. -Richters et al. v. Littell et al., 133.
3. The practice of presenting a single set of affidavits entitled in several different actions by different plaintiffs against the same defendants, for the purpose of ob- taining separate orders of arrest in each action, is not to be encouraged.- Whitney et al. v. Hoffstadt et al. 197.
4. An application to exonerate bail is gov- erned by the Code as it exists when the application is made.-Walsh v. Schulz, 215.
5. The right of bail to be exonerated upon the death of defendant is limited to cases where the death occurs before the expira-
tion of the time to answer in the action brought against the bail.-Id.
6. While it is the rule that where the ground upon which defendant is arrested is identical with the cause of action and must be established to enable plaintiff to recover upon the trial the order of arrest will not be set aside upon motion on con- flicting affidavits unless the evidence is of such a character as would require he justice presiding at the trial to direct a verdict for defendant, still when a mo- tion to vacate the order of arrest is made upon affidavits in such a case the admin- istration of justice requires an examin- ation pro and con, for the purpose of as- certaining whether the order was provi- dently or improvidently granted.-Smiffen v. Parker, 444.
1. Commissioners were appointed under Chap. 113, Laws of 1883, to ascertain the damages caused by change of grade in a street in Peekskill. Section 2 of that act provided the provisions of the General Railroad Act relative to the appointment of commissioners, their power and duties, should be applicable to the appointment of and the power and duties of these said commissioners. The defendant answered and denied the petitioner's title and the injury, and these were the only questions put at issue. On this appeal from the or- der appointing the commissioners and their award, Held, That the objection that, as the petition does not state that an effort had been made to settle or fix the amount of damages, the appointment was void by § 13 of the Railroad Act was frivolous, and even if it had been valid if made on the return of the petition it could not, as here, be raised for the first time on appeal; that the presumption is that the commissioners followed the cor- rect rule of damages in fixing their award; that the question. "Without taking into account any benefits supposed to be de- rived from raising the grade, would it then be any injury to the property?" was properly allowed.-Haight v. The Vil- lage of Peekskill, 80.
Where a portion of a street which is be- ing graded under the direction of the street commissioner is filled higher than the established grade, but the entire work is afterwards accepted and approved by the common council, Held, That the change of grade was thereby ratified and that such ratification was sufficient.- Moore et al. v. The City of Albany, 338
3. In making the street the contractor made excavations on the slopes outside
of the street lines upon private property, and also in filling ravines made embankments on private property outside the street lines, without the ex- press consent of the owners of such property. for the purpose of securing the full width at grade. Held, That this would not render the assessment invalid; nor is it inval lated by the fact that the expense of constructing drains through such embankment outside the lines with- out the knowledge of the owners was included.-Id.
1. Assignment to H. by an insolvent debtor of securities for payment for legal ser- vices to be performed by H. for the in- solvent in the event of an assignment by the latter for the benefit of creditors, Held, to be a fraud on creditors of the in- solvent.-Swift et al. v. Hart et al., 22.
2. Where the securities so assigned were judgments which had been recovered by H. as attorney for the insolvent, Held, that H. still had his lien upon such judg- ments for his compensation and disburse- ments therein.-Id.
3. Upon refusal by the assignee to bring an action to reclaim property fraudulently assigned by the insolvent, creditors may sue in equity for that purpose, joining the assignee as defendant. and the pro- ceeds of their recovery will be assets for distribution under the assignment.-Id.
See CORPORATIONS, 14; COSTS, 7; EVIDENCE, 19; MORTGAGE, 22.
ASSIGNMENT FOR CREDITORS.
1. A general assignment for the benefit of creditors, made by the members of a co- partnership including both the partner- ship and their individual property, and containing a provision that, out of the re- mainder of the assets, if any after pay- ing the partnership debts, the assignee should pay their individual debts, or, if such remainder should be insufficient, should apply the same pro rata to the payment of such individual debts, is fraudulent when the individual property and liabilities of the assignors are unequal, for the individual property of each as- signor should be applied to the payment of his individual liabilities; and such an assignment may be set aside in a suit brought for that purpose by a judgment creditor of the copartnership.—Crook v. Rindskopf et al., 30.
2. When a general assignment for the bene- fit of creditors contains a fraudulent di- rection, any creditor, ven though the fraudulent direction itself may not
directly prejudice him, is entitled to relief under the general provision of the statute declaring an assignment made with the intent to hinder, delay or de- fraud creditors to be void as against the persons so hindered, delayed, or defraud- ed, for every creditor is so delayed and and hindered by such an assignment, in- asmuch as it stands in the way of the or- dinary legal proceedings provided for the collection of debts.-Id.
3. In order to make a general assignment for the benefit of creditors effectual and operative as a conveyance of real proper- ty in the City of New York, as to subse- quent purchasers in good faith of such property from the assignor, it must be re- corded as a deed in the office of the Reg- ister of Deeds of the county of N. Y., and when such a subsequent purchaser in good faith mortgages such property a purchaser at the foreclosure sale of such mortgage acquires the title of the mort- gagor notwithstanding the fact that he has notice of the assignment.- Wagner v. Hodge et al., 125.
4. The certificate of acknowledgment of a general assignment, which was written immediately after the clauses of accept- ance of the trust and of attestation and the signatures and seals of the parties, was as follows:-"State of N. Y, City and Co. of N. Y., ss: On this 21st day of Feb., 1882, before me personally ap- peared C. H. S. and J. G. S. of the City of N. Y., to me personally known to be the individuals described in and who execu ted the same and who acknowledged to me that they executed the same for the purposes therein mentioned." Held, That while the certificate was defective in form it was not vitally so, and that the assignment was properly recorded.-Claf- lin et al. v. Smith, 236.
5. In an action to set aside the assignment upon the ground that the above certificate of acknowledgment was defective the officer who took such acknowledgment was called to prove that in fact the re- quirements of the statute in respect of the act of acknowledgment had been complied with. This evidence was ex- cluded. Held, Error.-Id.
6. An order for the examination of the as- signor will not be denied, or if granted will not be vacated, on the ground that such examination may develop fraudu- lent transactions on the part of the as- signor and assignee sufficient to set aside the assignment.-In re assignment of Wilkinson et al., 265.
7. Where the petition shows that there is reasonable ground for apprehending that there has been a fraudulent disposition of assets, or a fraudulent omission thereof
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