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without merit and is liable for damages for such brought for the purpose of bring abuse. 8 Wend., 876; 51 Pa., ing ruin upon plaintiff ; there is 190 ; 64 id., 283. also an averment that all such Babbinger v. Sweet, 1 Abb. N. suits are still pending.

C., 263, considered. Thomas G. Outerbridge, for

Order modified by striking out applt.

paragraphs relating wholly to Corlett & Hatch, for respt. pending suits, without costs.

Held, That as there is no aver- Opinion by Barker, J.; Harment or pretense that defendants din, P. J., and Dwight, J., conhave resorted to any abuse of procur. cess of law in prosecuting the actions the matter averred concern

EVIDENCE. ing these suits is irrelevant and should be stricken out.

N. Y. SUPREME COURT. GENERAL A conspiracy consists in the un

TERM. THIRD DEPT. lawful combination or agreement Warren Bennett et al., applts., of two or more persons to do an v. Robert Nelson, respt. act unlawful in itself, or to do a

Decided Nov., 1883. lawful act by unlawful means. The allegation of conspiracy is of In an action for the price of barrels where no importance so far as it respects

their number was in dispute, defendant

offered to slow that one G. bad carted the cause and ground of action. A

all the barrels reccived from plaintiff to de. simple conspiracy, however atro

fendant's farm ; that there they had been cious, unless it results in actual filled with fruit and that immediately damage, is not the subject of a thereafter they had been counted and that civil action. It is only necessary

their number was so many.

This evi

dence was excluded. Held, Error. to be averred and proved where a verdict is demanded against two

The action was for the price of or more defendants. 7 Hill, 107; certain barrels. The answer set up 1 Lord Raym., 374; 2 Gray, 124; 14 the delivery of a smaller number. Allen, 499; 65 Pa., 507.

Defendant offered to show by one In actions for abuse of process G. that G. had taken the several of law it is unnecessary to aver lots of barrels, and all the barrels and prove that the process im- delivered to defendant, to defendproperly employed is at an end, or ant's farm ; that there they bad that it was sued out without rea- / been filled with fruit and that imsonable or probable cause. Greenl.mediately after being filled they Ev., Vol. 2, § 452; Add. Torts, 755. were counted and were in numSuch actions may be maintained ber but so many in all. The eviwhen the person who sues out the dence was excluded ; and on approcess uses the same for some peal the county court reversed private purpose of his own, not the judgment of the justice. warranted by the exigencies of the N. A. Calkins, for applts. writ or the order of the court, and A. W. Curtis, for respt.



Held, That the evidence G. B. Wilson and another, and cluded was competent. The count. therein had and levied an attaching done after delivery was not ment (G. B. Wilson was a non conclusive and was open to the ar- resident) on said premises. The gument that some of the barrels usual notice under Code, § 649, might have been lost.

Still we sub. 1, was filed in the clerk's think defendant should have been office; also an inventory by the allowed to show the fact

sheriff. The complaint stated the Judgment of the county court above facts;

above facts; also that plaintiff affirmed, with costs.

was in possession and had the fee Opinion by Learned, P. J.; when the attachment was levied ; Boardman and Potter, JJ., con- also that but for the attachment

plaintiff could have sold the land. The relief demanded was that the

attachment and proceedings under ATTACHMENT. CLOUD ON

it be set aside. The sheriff deTITLE.

murred. The demurrer was overN.Y, SUPREME COU'RT. GENERAL ruled. TERM. THIRD DEPT.

S. S. Edick, for applt.

S. A. Bowen, for respt. Harriet M. Wilson, respt., v.

Held, Error. Notwithstanding John Kelly, sheriff, im pl’d, applt. the langnage of Code, $ 649, subd. Decided Nov., 1883.

1, which provides that the notice

of attachment is to be recorded An attachment is a lien only upon the in

with “like effect” as a notice of terest which the debtor had in the premises when levy was made. Hence, where plain- lis pendens, we think that an attiff was in possession under a paper title taching creditor gets nothing more given before but recorded aster an attach

than the debtor had at the time of ment levied on the premises against her

the levy. 65 N. Y., 30, and see grantor, Held, That an action by her to set aside said attachment as a cloud upon her

Code, $ 708, subd. 2,as to what the title could not be sustained, especially sheriff is to sell on the execution. where the attachment action had not pro- This action cannot be sustained. ceeded to judgment.

In Lehman v. Roberts, 86 N. Y., It seems, that if an attaching creditor should

unjustly neglect to proceed with her suit, 240, it is said that the sale of land under such circumstances, plaintiff might under execution against a third possibly have relief upon the ground that party will not be restrained at the the process of the court was being abused. suit of a party in possession hav

Action to remove a cloud upon ing the paper title. And in the plaintiff's title. On June 8, 1882, case here it is not determined that one G. B. Wilson conveyed the the People's Savings Bank will premises in question to plaintiff, ever have a judgment against G. his wife; this deed was not re- B. Wilson. We may say however corded until July 31, 1882. On that if an attaching creditor should July 17, 1882, the People's Savings neglect to proceed with his suit Bank brought an action against and thus unjustly for a long time perpetuate the lien of an attach- | Trull then assigned the judgment ment the court might possibly to B. as collateral security for payrelieve a person situated as this ment of the note; that thereafter, plaintiff upon the ground that its the defendant Rogers, with inprocess was being abused.

tent to defraud B. and with Judgment reversed, with costs, knowledge of his rights, procured and demurrer sustained, with costs. Trull for $20 to assign to her the

Opinion by Learned, P. J.; judgment; that she now claims Boardman and Potter, JJ., con- that this assignment is a bar to the cur.

action brought against her and

Benedict. Plaintiff claims under EQUITABLE ACTION. B., by mesne assignments, and

holds both note and judgment. N.Y. SUPREME COURT. GENERAL

The relief asked is that the assignTERM. THIRD DEPT.

ment of the judgment by defendJohn H. Miller, applt., v. Sarah

ant Trull to defendant Rogers A. Rogers et al., respts.

be declared void as to plaintiff ; Decided Nov., 1883.

also that the action begun against

the defendant Rogers and Benedict Where one not a party to a pending action

be continued in the name of this claims he is equitably entitled to conduct it, his remedy is, by motion in that action ;

plaintiff as plaintiff.

The combe cannot bring a new action asking such plaint was dismissed. relief.

A. B. Olmstead, for applt. The court will not decree the cancellation or C. S. Lester, for respt. surrender of an instrument at the suit of

Held, That the action could not a party who can, if he choose, put himself in a position to contest its validity.

be maintained. If the plaintiff It seems, that the purchaser of a judgment claims to have succeeded to the cannot, under any circumstances, get a rights of Trull in his action against better title thereto than his vendor had.

defendant Rogers and Benedict, This action was for equitable re

he should make a motion in that lief. The complaint alleged the action to be substituted. Codes recovery of a judgment by one C. 756. . No new action is needed. against J. B. Rogers, husband of And no action is needed to dedefendant; that C. assigned it to clare the assignment void and none defendant Trull, for $560 to be is proper. 62 N. Y., 533. The paid therefor, for which Trull gave complaint states and the evidence his note to the order of B., as at- shows that defendant Rogers torney for C; that Trull then took the assignment of the judgcommenced an action against the ment knowing of the previous defendant Rogers and one Bene- transfer to B. Hence she took no dict, as assignee of her husband, more than Trull had. Indeed it 10 recover from them the amount is doubtful whether in such a case of the judgment from property, as her purchase of a judgment (in alleged, fraudulently assigned by this case against her husband) the husband to his wife; that I would give her any better title than the vendor had. 50 N. Y., Appeal from judgment on ver61; 22 N. Y., 535 ; 64 N. Y., 220; dict, and from order denying new 61 N. Y., 88. The decisions are trial. principally concerning mortgages, Delendant was proprietor of a but a judgment is also a chose in hotel which had a broad covered action and the same principle ap- piazza, the floor of which was seven plies. The defendant Rogers is feet from the ground.

Under the a mere voluntary purchaser from piazza was the billiard room of the Trull; she is not in the position hotel. Adjacent to the hotel of a debtor who in good faith pays grounds were the grounds of the a debt to the original creditor, not "Pioneer Association," there being knowing of a transfer. Besides no fence between the two. On the the evidence shows she knew Trull day of the accident which is the had an interest of only $20 in the subject of the action there was a judgment. Since the assignment public meeting of 12,000 or 15,000 to her she has satisfied the judg. people on the Association grounds. ment against her husband and has A large number of guests were put in an amended answer in the entertained by defendant at his Trull action setting up this fact. hotel, and many people picniced But if the plaintiff be substituted on defendant's grounds without in that action he can therein show objection on his part. A sudden that this assignment and satisfac- storm broke up the meeting, and tion are utterly invalid.

many of the crowd took shelter Judgment affirmed, with costs. in defendant's hotel. Plaintiff, a

Opinion by Learned, P. J.; boy 13 years old, was at the Boardman and Bockes, JJ., meeting with his parents and concur.

took refuge in the billard room

with his mother. A large crowd NEGLIGENCE.

from the meeting sought shelter

on the piazza, which gave way N. Y. SUPREME COURT. GENERAL nnder their weight, and plaintiff TERM. FOURTH DEPT.

was injured in the billiard room George H. Converse, by guar. below. The first floor of the hotel dian, respt., Artemus B. was also filled with people who Walker, applt.

came in within the space of five Decided Oct., 1883.

minutes. Most of the people on

the piazza were not guests of When a crowd of people took refuge from a the hotel. About a year before storin in a hotel, not being guests thereof,

the accident one of the props and one of them, who entered the hotel solely to escape the storm, was injured by under the piazza had been removed the falling of a floor caused by the unusual and the strength of the floor was crowd, IIeld, That the injured person as- weakened. After the prop was sumed the risks of going therc at such a

removed and some time before time and cannot recover damages from the hotel keeper, who is shown to have been

this accident there had been guilty of no negligence.

a large crowd on the piazza,


and there had then been for non-suit should have been no sign of its giving way. granted. Neither plaintiff nor his parents Judgment reversed, with new were guests of the hotel, but went trial, costs to abide event. there solely to be out of the storm. Opinion by Barker, J.; Smith, The veranda was apparently safe,

P. J., and Hardin, J., concur. and there is no evidence that de. fendant knew it had not strength to support the usual weight of ATTORNEYS LIEN. SETTLE

MENT. visitors in customary numbers. Defendant was not at all instru- ' N. Y. COMMON PLEAS. GENERAL mental in convening the multitude

TERM. at the meeting, and he had no reason to anticipate the sudden William B. Tullis, respt., v. Chesinflux of people.

ter Bushnell et al., applts. As soon as the crowd came, he and his servants Decided June 25, 1883. took all reasonable means to preserve order and to notify the Where plaintiff before verdict, report, de

cision or judgment, settles the action withpeople of the danger to which their

out the intervention of his attorney and action exposed them. The court without paying his fees, said attoruey canrefused defendant's request for a

not maintain an action against the parties pon-suit.

to the original action on the ground that by

the settlement they have destroyed lis lien; I. Sam. Johnson, for applt.

his remedy is by continuance of the original F. C. Peck, for respt.

action, as before the passage of $ 66, Code Held, Error. Defendant was Civ. Pro., except that by such section ho gnilty of no breach of duty toward

necd not show fraud to obtain leave to pro

secute. the plaintiff. The most liberal view, in plaintiff's behalf, would Appeal from judgment and place defendant under the same from order denying motion for obligations as any host who enter- new trial. One Runkle was made tains invited guests. 10 Allen, trustee for the distribution of stock 368; 41 N. Y., 525.

of a certain manufacturing comThose who crowded to the hotel pany.

Thereafter one Bushnell, accepted the perils incident to the by William B. Tullis as his atsudden occupation by a multitude torney, brought suit against the of people.


said trustee and Southcote v. Stanley, 1 Hurl. others, for about $8,000 of the & N., 347 ; Camp v. Wood, 76 stock. Bushnell sought to settle N. Y., 92, and Cornby v. Hill, 4 the suit with defendants, who C. B., 556, considered.

upon advice of said trustee refused It would be an unwarrantable to compromise until Bushnell's atdeduction from the undisputed torney had been paid his fees. facts to charge defendant with Bushnell afterwards said that he being guilty of a breach of duty had settled with Tullis, and there. toward plaintiff, and the motion upon a settlement of the suit was

Vol. 18.-No. 6.

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