were correctly stated as to number and date and character of service, but not as to value, and thereupon the motion was denied. The canse came on for trial before the County Court, and plaintiff having pro

with costs.

Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., con

cur.

REFERENCE.

N.Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

John W. Stebbins, respt., v. Dwight B. Cowles, applt.

Decided Oct., 1883.

In an action by an attorney for services, involving a long account, it is discretionary with the Court to order a reference.

Appeal from County Court order directing that the action be referred for trial.

Action to recover for services as an attorney and counsellor at law. The complaint contains a single count, alleging such services generally, and the bill of particulars specifies numerous items, extending through four years, including services in four separate suits. The answer admitted generally that plaintiff performed professional services for defendant "during the time and as stated in the complaint," but with that exception denied the complaint and alleged payment and that the services were performed negligently. Plaintiff having moved for a reference, defendant admitted that the items of the bill of particulars

offered evidence as to value, which was objected to by defendant, the court decided that all the items, their nature and value, must be proved, and ordered a reference. From that order this appeal is taken.

W. Henry Davis, for applt.
John W. Stebbins, respt. in per-

son.

Held, That the case was one which the county court had power to refer in its discretion. The facts warranted the conclusion that the trial involved the examination of a long account. The order being discretionary, we cannot review it. 24 N. Y., 635; 53 Barb., 438.

No case in which a reference of an attorney's account has been refused goes so far as to deny the power to refer; they all rest upon circumstances of discretion, 10 Hun, 304; or upon the ground that the action did not involve a long account. account. 11 Hun, 62.

Appeal dismissed, with $10 costs and disbursements.

Opinion by Smith, P. J.; Hardin and Barker, JJ., concur.

NEGLIGENCE. HORSE RAIL

ROAD.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

Thomas Maloney, applt., V.

Decided Sept., 1883.

a car passing in the opposite direction. Due attention to his other duties precluded the possibility of

horse-car in motion, and on the side of the adjoining track whereon cars were constantly passing in an opposite direction, and in so doing fell within five feet of the horses of an approaching car on said adjoining track. The driver of the car applied the brakes at once and stopped the car before it had entirely passed over plaintiff's body. Held, That there was no negligence imputable to defendant, and that plaintiff was

guilty of contributory negligence.

Appeal from a judgment entered on dismissal of the complaint at Circuit.

Action to recover damages for personal injuries resulting from the negligence of defendant.

It appeared that plaintiff stepped off the rear platform of one of defendant's horse-cars in motion, upon which he had been riding, and in so doing fell across the adjoining track on which the cars were running in the opposite direction, about four or five feet in front of the horses attached to a car then approaching on said track at the usual rate of speed. He was run over by said car and injured. It appeared that the driver of the car causing the injury immediately applied the brakes and arrested the car before it passed entirely over plaintiff's body.

Held, That there was no negligence imputable to defendant. The driver did all that the law required of him to avoid the acci dent, for it did not impose upon him the duty of constant attention to ascertain whether some one had jumped and fallen immediately in

Vol. 18.-No. 7a.

of him was usual watchfulness and care in attending to his business and such requirement is met by the proof of the quick stoppage of

his car.

That plaintiff was guilty of contributory negligence, in that he leaped from a car in rapid motion directly on the adjoining tracks on which cars were constantly passing in a direction opposite to that in which he was going. The fact that in alighting he jumped upon the side in which there was the adjoining track, and thereby took the risk of collision with an approaching car, and that in so doing he fell so close to the approaching horses that it was impracticable to stop them in time to avoid the accident is equivalent, so far as the question of contributory negligence is concerned, to jumping directly under the horses or under the car, inasmuch as the injury was equally certain to follow in either case.

Judgment affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., and Dykman, J., concur.

APPEAL.

N. Y. COURT OF APPEALS. Rogers, respt., v. The Village of Sandy Hill, applt.

Decided Dec. 11, 1883.

An action to vacate an assessment for $218.70 as a cloud on title and restrain its

collection does not affect the title to real property or an interest therein and is not appealable to the Court of Appeals. See S. C., 14 W. Dig., 45.

This action was brought to remove a cloud from the title of plaintiff's real estate, consisting of an assessment for building a sidewalk, and to have said assessment vacated and to restrain the collec

tion thereof. The amount of the assessment was only $218.70.

L. H. Northrup, for applt. James C. Rogers, for respt. Held, That as this action does not affect the title to real property or an interest therein this court has no jurisdiction to hear this appeal. Code, $$ 190, 191; 74 N. Y., 28; 67 id., 311; 71 id., 79; 77 id., 598.

Appeal dismissed.
Opinion by Earl, J. All con-

cur.

CONVERSION. TENANTS IN

COMMON.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

David S. Patten, respt. v. Michael Neal, applt.

Decided Nov., 1883.

Conversion by one tenant in common can be established without proof of a sale, destruc tion or loss of the joint property.

common. Defendant took possession of the cows, shut them up, received and proposed in the future to enjoy the income and increase to be derived from them. He ignored and rejected the just claim of plaintiff to the property, and in defiance of it claimed the

entire right to, and ownership of the property. He did not rest with the assertion of a right of possession as tenant in common and thus refuse to surrender the property to which he had as good a right of possession as plaintiff. A. Hess, for applt. H. Dunkel, for respt.

Held, That such evidence as exists in this case was properly submitted to the jury to say whether defendant had been guilty of a conversion. Undoubtedly the general rule has long been that a conversion by one tenant in common cannot be established without proof of a sale, destruction or loss of the joint property. The courts have, however, latterly, in aid of justice, made exceptions. 51 N. Y., 70; 66 Barb., 564, reversed on a question of evidence only in 56 N. Y., 613.

Opinion by Boardman, J.; Learned, P. J., and Bockes, J.,

concur.

Appeal from an order of the

RECEIVERS. COMPENSA

TION.

ing defendant's motion to set aside. the verdict against him and for a new trial.

Plaintiff and defendant owned a number of cows as tenants in

TERM. FIRST DEPT.

In re The Security Life Ins.

Co.

Decided Oct. 26, 1883.

The statutes of this State restricting the compensation of receivers of moneyed corporations to that of executors and administrators, and providing also that the compensation of such receivers shall not exceed $10,000 per annum, does not apply to receivers of insolvent insurance companies. Chapter 378, Laws of 1883, fixing compensation of receivers, etc., does not apply to receivers who had rendered services and ac

the Guardian Mutual Life Insurance Company case, 17 W. Dig., 249, we are required to hold that § 2, Chap. 3, of Laws of 1842, restricting the compensation of receivers of moneyed corporations to that of executors and administrators, and Chap. 442, Laws of

insolvent insurance companies.

brance.

Section 13 of Chap. 902, Laws of 1869, rendering the compensation of clerks and actuaries employed by receivers subject to the approval of the Superintendent of the Insurance Department, applies to and includes only receivers appointed under that Act.

A receiver will not be allowed in the settlement of his accounts for moneys actually paid an employee whose services were unnecessary to the proper management of the

trust and might and should have been dispensed with.

Counsel representing intervening policy holders in an action for the distribution of the funds of an insolvent insurance company are not entitled to compensation for their services out of the fund.

Appeal from an order confirm ing the report of a referee appointed to pass the accounts of the receiver of the Security Life Insurance and Annuity Company.

L. W. Russell, Atty. Genl. R. J. Moses, Jr., and Wm. Barnes, for applt.

Hamilton Cole, for rec'r.

Held, That under the recent decision of the Court of Appeals in

Chapter 378, Laws of 1883, fixing the compensation of receivers, etc., does not apply to this receiver, because he had rendered the services and the right to compensation therefor had accrued prior to the passage of the Act.

Held further, That while executors, trustees and receivers selling property subject to encumbrances are not entitled to commissions upon the amount of the encumbrances, in this case the receiver is entitled to have his compensation reckoned upon the encumbrance personally paid off by him, he reimbursing himself, such payment being necessary in order to enable him to effect a sale of the real estate.

Section 13 of Chap. 902, Laws of 1869, applies to and includes only receivers appointed under that Act.

With respect to the compensation paid to Mr. Hurd, the actuary, it clearly appears from the testimony that the continuance of his employment beyond the period of two years was unnecessary, and the sum paid to him by way of salary beyond his compensation for that period should be charged against and deducted from the commissions of the receiver.

The office of a receiver is not that of a sinecure, but one requiring the careful attention, superintendence, and personal administration of the receiver himself. Held further, That nothing can properly be allowed to the counsel representing intervening policyholders. 24 Hun, 114; 27 Hun, 195; 90 N. Y., 45; 91 N. Y., 57.

Order modified in conformity to the views above expressed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

JURY. PRACTICE.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Henry Hildreth, respt., v. The City of Troy, applt.

Decided Nov., 1883.

The rejection of a competent juror is not ground of error where the jurors who actually try the case are competent.

This action was for negligence in suffering a pavement to be out of repair; plaintiff was thrown from a wagon and hurt. The court held all residents of Troy disqualified to sit as jurors where the city was a party. Defendant excepted, claiming that residents and tax-payers were competent; but he cited no authority. Thereafter a jury was gotten, to none of whom did either side object. It now appears that by a clause of the Troy charter as passed in 1816, and in this respect never repealed, it was provided that no person should be deemed incompetent as a juror by reason of his being an

inhabitant, freeholder or freeman. Plaintiff had a verdict. Defendant claims error in the exclusion of the jurors.

R. A. Parmenter, for applt.
James Lansing, for respt.

Held, No error. The rejection of a competent juror is not ground of error where the jurors who actually try the case are competent. All that a party can ask is that the jurors who try the case be of The rejection competent. others equally competent does not harm him.

Judgment affirmed. with costs. Opinion by Learned, P. J. ; Boardman and Bockes, JJ., con

cur.

ASSESSORS.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

The People, respts., v. Andrew Campbell et al., applts.

Decided Nov., 1883.

For a wilful refusal or neglect, not corrupt, by an assessor to perform his duties as such, he is only liable to a penalty of $50. If liable for corruption in office, under 2 R.S., m. p. 696, § 38, he must be allowed to show on the trial that he acted in good faith, e. g., that he first consulted a lawyer as to his right to do the act complained of.

Appeal from a judgment and conviction at the sessions.

Defendants were assessors of a town and were indicted among other things for a neglect to assess certain real estate at its full value, and the indictment charged a corrupt assessment below the full value. In other counts it charged