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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