Held, that they were properly taxed by plaintiff.-Donovan v. Vandemark, 443.

10. Where defendants sever in their defense all who succeed are entitled to separate bills of costs, unless the severance be in bad faith and to increase costs.-Williams v. Cassaday et al., 494.

11. When a person prosecutes in the name of the overseer of poor, without having complied with the statute, the action is unauthorized and the person instituting it is chargeable with the costs thereof. As to whether one who, after complying with the statute, brings an action, but is defeated, is absolutely liable for costs, quære.-Jobbitt v. Giles, 523.

See CONTEMPT, 3; COUNTY COURT, 1, 2; GuardIAN, 3; JUDGMENT, 2; LOTTERIES, 2; SURETYSHIP, 1, 4, 5; TRESPASS, 2.

COUNTERCLAIM.

See CONVERSION, 5; DEED, 5; EVIDENCE, 18; PLEADING, 18-20; USURY, 9.

COUNTY COURT.

1. Costs of appeal from justice's courts are regulated by 371 of the Code of Procedure, whether there is to be a new trial in the County Court or not. Chapin v. Skeels et al., 79.

2. And § 371 controls in all cases, except where the right to costs given by that section is qualified or varied in cases in which offers of judgment are made, pursuant to § 368, or in which such offers are made pursuant to other special enactment.-Id.

3. It is not necessary that the motion for a new trial be made in the county court before judgment entered on the decision of the county court in case trial without a jury can be reviewed by appeal to the General Term. -Cook v. Darrow, 522.

no violation of his duty.—Odell v. Cromwell, 273.

COVENANT.

See DEED, 1; Guaranty, 1.

CREDITORS' BILL.

1. A creditor cannot maintain an action to set aside a conveyance as fraudulent until he has obtained a judgment, even though the debtor is insolvent.-Adee v. Bigler, 312.

2.

Although individuals having separate judg ments against the debtor may join as plaintiffs in a creditor's suit, they must show a right in common to the relief demanded; they must all have judgments against the party defendant charged with the fraud, and the fraud must be such as affects them all.-Tabor et al. v. Bunnell et al., 551.

3. A complaint in a creditor's action alleged that a conveyance from A and B to C; one from A to C; a land contract between A and D and a chattel mortgage from A to C were fraudulent and void, having been made to hinder, delay and defraud creditors of A and B; that plaintiffs were judgment creditors, the one having a judgment against A and B, and the other against A alone. Held, Defective, as different and independent causes of action were improperly united.—Id. 4. It is essential that the complaint in a creditor's

action should contain an averment that execution has been issued to the proper county, and returned unsatisfied.-Id. See FRAUD, 10.

CRIMINAL LAW.

1. The acts and declarations of confederates are admissible if there is evidence sufficient to show prima facie a combination to commit the offense.-Furrell v. The People, 318.

21.

COUNTY TREASURERS.

1. Plaintiff was county treasurer of Westchester County in 1872, and as such applied for and received letters of administration of an estate of which the county was a creditor, and as such administrator assigned a mortgage belonging to said estate, and deposited the principal and interest of said mortgage in the bank in 1875, to the credit of himself as county treasurer. In 1879 the bank, being about to close its affairs, gave notice to the present county treasurer to withdraw said deposit, which was done. Plaintiff demanded said sum of defendant as public administrator, and also as administrator of said intestate. Held, It appears that the County of Westchester was a creditor of the intestate, and it is a reasonable inference that the plaintiff turned over the fund in controversy to the county in payment of the debt of the intestate. Such an act of the plaintiff was

of Special Sessions in the conviction of a prisoner is sufficient.-The People v. Sammons, 382.

3. An accomplice of the prisoner had made a statement of the crime, which was delivered to the district attorney. The prisoner's counsel called for it for the purpose of impeaching such accomplice. Held, not proper evidence on the issues involved.-Stape v. The People, 423.

mission of the crime.-Goldstein et al. v. The People, 506.

7. When a husband is guilty of an offense, and the wife also, and no coercion is shown to exist, they may be jointly indicted and convicted.-Id.

DAMAGES.

1. Damages may be recovered in an equitable action, although plaintiff fails to establish his right to the equitable relief demanded.— Matthews et al. v. The D. & H. C. Co., 76.

2. Plaintiffs' testator conveyed to the A. & S. RR. Co. a portion of his farm, excepting a spring on said portion, the use thereof, access thereto and right to repair, without any damage to said spring in consequence of the construction of said road. In putting down an additional track, defendants endeavored to protect the spring by building a stone covering and leading the water through a lead pipe instead of a wooden one, and thereby interfered with the use of the water for a few days. In an action to restrain such interference an injunction was issued. On the trial no evidence as to the expense of restoring the spring was offered. Held, That plaintiffs could only recover such sum as would have compensated testator for the deprivation of the use of the water during the few days of interruption.-Id.

8. Unless a contract was made with reference to special circumstances affecting the damages, only such damages are recoverable for breach of the contract as are proximate and certain, and such as are the usual and natural consequences of such breach, and may have reasonably been supposed to have been within the contemplation of the parties.-Corlies v. Ferguson, 489.

See CONTRACT, 3, 24; CONVERSION, 4; EMINENT DOMAIN, 2; INJUNCTION, 2; LIBEL, 2, 3; PARTY WALLS, 3; SLander, 2.

DECEIT.

1. If A. be indebted to B. in a sum of money for which an action is pending, the assertion of A. that the debt is a lien upon any specific property or thing made as an inducement to the settlement, is not in itself such a representation of an existing fact as the law requires as a sufficient ground for an action

for deceit, nor is a promise to do a certain thing as an inducement to such settlement.Lexow v. Julien, 300.

DEDICATION.

See EMINENT DOMAIN, 3.

DEED.

Where a grantor conveys by a deed containing a general covenant for quiet enjoyment, every appurtenant to the premises is protected by the same, and the grantor is liable on his covenant if the grantee be disturbed in the enjoyment thereof. It is not necessary that the appurtenant should be described in the deed. Green v. Collins, 89.

2. The act passed March 2, 1857, entitled "An Act relative to sheriff's certificates upon the sale of real estate," makes the record or a certified copy of such certificate evidence of its contents when same has been filed and recorded with the county clerk or register as required by said act. The necessity of proof and acknowledgment, as required by 2 R. S., 370, sec. 44, to make same evidence of its contents is done away with.-Clute v. Emmerich, 128.

3.

4.

5.

A sheriff's deed, based upon a previous sale of real estate under execution, reciting the formal steps with respect to the sale, namely, posting the notices, &c., is presumptive evidence that the sheriff performed his duty in posting the notices of sale required by law. -Id.

Where, through a mutual mistake, the quantity of land conveyed is misstated in the deed, and belief in the correctness of the amount as stated formed the basis of negotiation and agreement of the parties, the vendee is not foreclosed by acceptance of the deed from obtaining relief by recovering back so much of the price as was computed and paid by mistake.-Paine v. Upton et al., 323.

A deed stated that the premises were conveyed subject to a certain assessment. On foreclosure of a purchase money mortgage, defendant alleged that this clause was objected to at the time and was suffered to remain only on the vendor's declaration that the lien of the assessment was only apparent, and that he was afterwards obliged to pay it to redeem the premises from a sale. It appeared that it was not the intention of the vendee to take the land subject to the assesment, and that it was contrary to any avowed intention of the vendor's that it should be thus taken. Held, That the defendant was entitled to have the deed reformed and to counterclaim the amount so paid.- Waring v. Somborn, 462.

6. After discovering the validity of the assessment, there was a mutual agreement to extend the mortgage. Subsequently it was assigned to plaintiff. It did not appear that

DEMURRER.

See PLEADINGS, 2, 15, 16.

DEPOSITIONS.

1. Where the affidavit upon which an order for the examination of defendant as a party before trial is based shows that the plaintiff has no cause for action against the defendant sought to be examined, such order will be vacated.-Wertheim et al. v. Page et al., 26. 2. Where witnesses reside in New Jersey, but have a place of business in New York City, they cannot be examined as witnesses before trial in an action in that city, without showing that they are about to depart from the state, or that they were sick or infirm.Barker v. Wilder, 252.

3. On the return of the order for examination, where the parties are before the court, a motion may be made to discharge it on affidavits, without giving previous notice or serving copies of such affidavits.-Id. See BROKERS, 3.

DISCONTINUANCE.

1. The court in the exercise of its discretion will not allow plaintiff to discontinue his action against the objection of defendant, who has by his answer set up a valid counterclaim.-Swathmey v. Cheatham, 220.

See ATTORNEYS, 7.

DISCOVERY.

1. The petition on which was granted an order directing a discovery of entries in certain books of defendant, a bank, and permitting plaintiffs to inspect and take copies of the same, showed that plaintiffs had no knowledge of any particular entries which they needed to see in order to frame their complaint; it also stated generally that plaintiffs desired information in regard to losses said to have been suffered by the defendant, the amount thereof, the causes and the action of the directors in regard to the same, and to the general management of the bank. Held, That the order should not have been granted and was manifestly oppressive.-Brownell et al. v. The National Bank, 17.

DIVORCE.

1. Where alimony is directed to be paid by a final judgment, an order that the defendant give security for the future payment of the same, and, in default thereof, that an attachment issue punishing the defendant as for a

contempt, is not proper and will be reversed.-Gane v Gane, 244.

Although a decree of divorce has been obtained by collusion and fraud, a person subsequently marrying one of the divorced parties cannot avail himself of such a fraud to obtain a judgment of nullity.—Ruger v. Heckel, 299. 3. While it is not within the power of the court, in a suit for absolute divorce, to allow a third party with whom acts of adultery are charged to have been committed in the complaint to come in and defend as a party to the suit, yet the court may, and will, in a proper case, allow such third person to attend upon the examination of the witnesses and crossexamine the witnesses upon the reference to take proof of facts, and direct that such third person be called as a witness, and that such witnesses as she may name be summoned and examined. Clay v. Clay, 362.

4. In an action for divorce, in the absence of direct proof, the court must be satisfied that a criminal attachment subsisted between defendant and the alleged paramour, and that opportunities occurred when the intercourse in which they intended to indulge might with ordinary facility have taken place.Conger v. Conger, 569.

entitled to prove on the trial of this action facts tending to show that the debtor had been guilty of fraud, and that defendant had a right to have him arrested, as threatened.— Burnham v. Douglas, 557.

See PRACTICE, 4.

EASEMENT.

1. Where the defendant, who had a right by deed to convey water across plaintiff's land by an open race, constructed in its stead a closed race at his own expense, and without consulting plaintiff, whereby the latter was damaged, Held, That defendant was bound to keep the closed race in repair, and was liable in damages for a failure, and this notwithstanding the fact that the deed provided that each party was to build half of the open race.-Fritcher v. Anthony, 25.

2. The general rule of servitudes is that there is no obligation upon the owner of the servient property to do any act, but only to allow another to do or refrain from doing some act himself.-ld.

3. Where a grant of lands is made with the right to the use of the carriage or alley-way situate between the premises hereby conveyed and the building east thereof, owned by the grantor, for ingress and egress upon the rear of said premises hereby conveyed," it is not implied that such right of way extends to the rear of such two lots; but on the contrary, in strictness, it extends back only to the rear of the building on the easterly lot; yet, to accomplish the purpose intended, it must be held to extend back to the first point at which, at the time of the grant, the grantee could by means of it obtain convenient egress and ingress upon the premises so granted to him, but no further.-Spencer v. Weaver, 146.

See DAMAGES, 2; EMINENT DOMAIN, 3-5.

EJECTMENT.

1. By virtue of a judgment in ejectment in his favor, and without any writ of possession, a plaintiff may take possession of the premises described in the judgment, if he can do so peaceably.-The People ex rel. Scudder v. Cooper, 77.

2. Where a sheriff had taken possession of the premises, not only under a writ issued to him, but also as agent for the plaintiff, and a stay was served upon him, it was held that his only duty was to cease removing the personal property. That it was proper for him to lock up the house and retain possession by his deputy, and that he rightly refused to allow the defendant to re-enter.-Id.

3. A judgment in ejectment by default is not conclusive against persons claiming under the defendant therein unless it has been docketed for three years in the office of the clerk of the court in which it was rendered.-Sheridan v. Linden, 258.

4. It is not sufficient that the judgment be entered in the Book of Judgments; unless entered in the Docket of Judgments it is not docketed, as that word is used in the statutes.-Id.

ELECTIONS.

1. The certificate of the county canvassers to the election of a party gives presumptive title to the office, and an absolute title until the title is destroyed by evidence showing that it does not certify the true result of the election. The People ex rel. Zeiser v. Kessel, 209.

1.

2.

3.

EMINENT DOMAIN.

While the Legislature has the right to supplant one public use by another, still the delegation of such a power must be made in express terms or by necessary implication. Such a right cannot be implied from a general power to appropriate or to use land generally. The N. Y. City & N. RR. Co. v. The Central Union Tel. Co., 237.

In proceedings to take lands for railway purposes, under the statute, it is the detriment to the owner for which he is to be compensated. When that is ascertained, he is not to be paid more because the land is peculiarly adapted to the use of a railroad.—In re The Boston, H. T. & W. RR. Co. v. The T. & B. RR. Co., 527.

as

One H. being the owner of lands above One Hundred and Fifty-fifth street, in 1854 and 1855, executed mortgages and conveyances of portions thereof, describing them as bounded by streets and avenues they would have run if they had been included in the commissioner's map of 1807. Held, That the conveyances, although not amounting to a dedication to the public of the lands embraced in the supposed streets, created an easement in the grantees of the abutting lots entitling them to have such streets and avenues left open, and that the award for such lands when taken for such streets and avenues was properly divided between the owner of the land and the owners of the abutting lots.-In re opening Eleventh Avenue, 534.

4. In the first report of the commissioners a merely nominal compensation for such lands was awarded on the ground that they had been dedicated to public use. The court sent the report back to be corrected by awarding just compensation for such lands. Held, That this decision was no bar to a claim by an abutting owner that an easement had been created by the owner of the fee.- Id.

5. The order of confirmation of the amended report whereby substantial damages were awarded to the owners of the land taken did not determine that the entire sum was payable to the owner of the fee without regard to any easement owned by others. -Id.