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Also held, That a demurrer is a were correctly stated as to number defense within the meaning of and date and character of service, $3253 of the Code, and that the but not as to value, and thereupon order granting an additional allow the motion was denied. The canse ance should be asfirmed, with costs came on for trial before the County and disbursements.
Court, and plaintiff having proJudgment and order affirmed, ceeded in part with his proof and with costs.
offered evidence as to value, which Opinion by Dykman, J.; Bar- was objected to by defendant, the nard, P. J., and Pratt, J., con- court decided that all the items, cur.
their nature and value, must be
proved, and ordered a reference. REFERENCE.
From that order this appeal is
taken. N.Y. SUPREME COURT. GENERAL
W. Henry Davis, for applt.
John W. Stebbins, respt. in per:
Held, That the case was one
which the county court had power Decided Oct., 1883.
to refer in its discretion. The facts In an action by an attorney for services, in-warranted the conclusion that the
volving a long account, it is discretionary trial involved the examination of with the Court to order a reference.
a long account. The order being Appeal from County Court or- discretionary, we cannot review it. der directing that the action be 24 N. Y., 635; 53 Barb., 438. referred for trial.
No case in which a reference of Action to recover for services as an attorney's account has been rean attorney and counsellor at law. fused goes so far as to deny the The complaint contains a single power to refer ; they all rest upon count, alleging such services gen- circumstances of discretion, 10 erally, and the bill of particulars Hun, 304; or upon the ground that specifies numerous items, extend the action did not involve a long ing through four years, including account. 11 Hun, 62. services in four separate suits. The Appeal dismissed, with $10 costs answer admitted generally that and disbursements. plaintiff performed professional Opinion by Smith, P. J.; Harservices for defendant “during din and Barker, JJ., concur. . the time and as stated in the complaint,” but with that exception denied the complaint and alleged NEGLIGENCE. HORSE RAILpayment and that the services
ROAD. performed negligently.
N.Y. SUPREME COURT. GENERAL Plaintiff having moved for a refer
TERM. SECOND DEPT. ence, defendant admitted that the items of the bill of particulars Thomas Maloney, applt., .
The Brooklyn City RR. Co., | front of his horses from the rear of respt.
a car passing in the opposite diDecided Sept., 1883.
rection. Due attention to his other
duties precluded the possibility of Plaintiff jumped off the rear platform of a this, and all that could be required horse-car in motion, and on the side of the
of him was usual watchfulness and adjoining track whereon cars were constantly passing in an opposite direction, and in care in attending to his business so doing fell within five feet of the horses and such requirement is met by of an approaching car on said adjoining the proof of the quick stoppage of track. The driver of the car applied the
liis car. brakes at once and stopped the car before it had entirely passed over plaintiff's body.
That plaintiff was guilty of conHeld, That there was no negligence imput- tributory negligence, in that he able to defendant, and that plaintiff was leaped from a car in rapid motion guilty of contributory negligence.
directly on the adjoining tracks Appeal from a judgment en- on which cars were constantly tered on dismissal of the com- passing in a direction opposite to plaint at Circuit.
that in which he was going. The Action to recover damages for fact that in alighting he jumped personal injuries resulting from upon the side in which there was the negligence of defendant. the adjoining track, and thereby
It appeared that plaintiff stepped took the risk of collision with an off the rear platform of one of de- approaching car, and that in so fendant's horse-cars in motion, doing he fell so close to the apupon which he had been riding, proaching horses that it was imand in so doing fell across the ad- practicable to stop them in time to joining track on which the cars avoid the accident is equivalent, were running in the opposite di- so far as the question of contribnrection, about four or five feet in tory negligence is concerned, to front of the horses attached to a jumping directly under the horses car then approaching on said track or under the car, inasmuch as the at the usual rate of speed. He injury was equally certain to folwas run over by said car and in- low in either case. jured. It appeared that the driver Judgment affirmed, with costs. of the car causing the injury im. Opinion by Pratt, J.; Barnard, mediately applied the brakes and P. J., and Dykman, J., concur. arrested the car before it passed entirely over plaintiff's body.
Rogers, respt., v. The Village of quired of him to avoid the acci. dent, for it did not impose upon
Sandy Hill, applt. him the duty of constant attention Decided Dec. 11, 1883. to ascertain whether some one had
An action to vacate an assessment for jumped and fallen immediately in $218.70 as a cloud on title and restrain its
Vol. 18.-No. 7a.
collection does not affect the title to real
Defendant took possesproperty or an interest therein and is not
sion of the cows, shut them up, appealable to the Court of Appeals. See S. C., 14 W. Dig., 45.
received and proposed in the fuThis action was brought to re
ture to enjoy the income and in
crease to be derived from them. move a cloud from the title of plaintiff's real estate, consisting of
He ignored and rejected the just an assessment for building a side and in defiance of it claimed the
claim of plaintiff to the property, walk, and to have said assessment vacated and to restrain the collec- the property. He did not rest
entire right to, and ownership of tion thereof. The amount of the
with the assertion of a right of assessment was only $218.70).
possession as tenant in common L. H. Northrup, for applt. and thus refuse to surrender the James C. Rogers, for respt.
property to which he had as good Held, That as this action does a right of possession as plaintiff. not affect the title to real property
A. Hess, for applt.
H. Dunkel, for respt. or an interest therein this court
Held, That such evidence as exhas no jurisdiction to hear this appeal. Code, SS 190, 191 : 74 N. ists in this case was properly subY., 28 ; 67 id., 311 ; 71 id., 79; 77
mitted to the jury to say whether
defendant had been guilty of a id., 598.
conversion. Undoubtedly the Appeal dismissed.
general rule has long been that a Opinion by Earl, J.
conversion by one tenant in common cannot be established without
proof of a sale, destruction or loss CONVERSION. TENANTS IN
of the joint property. The courts COMMON.
have, however, latterly, in aid of N.Y. SUPREME COURT. GENERAL justice, made exceptions. 51 N. TERM. THIRD DEPT.
Y., 70 ; 66 Barb., 564, reversed on
a question of evidence only in 56 David S. Patten, respt , N. Y., 613. Michael Neal, applt.
Opinion by Boardman, J.; Decided Nov., 1883.
Learned, P. J., and Bockes, J.,
concur. Conversion by one tenant in common can be
established without proof of a sale, lestruc tion or loss of the joint property.
TION. Appeal from an order of the Montgomery County Court deny. N. Y. SUPREME COUPT. GENERAL ing defendant's motion to set aside
TERM. FIRST DEPT. the verdict against him and for a
In re The Security Life Ins. new trial.
Co. Plaintiff and defendant owned a number of cows as tenants in Decided Oct. 26, 1883.
The statutes of this State restricting the com- the Guardian Mutual Life Insurpensation of receivers of moneyed corpora
ance Company case, 17 W. Dig., tions to that of executors and administrators, and providing also that the compensa
249, we are required to hold that tion of such receivers shall not exceed $ 2, Chap. 3, of Laws of 1842, re$10,000 per annum, does not apply to re- stricting the compensation of receivers of insolvent insurance companies. ceivers of moneyed corporations Chapter 378, Laws of 1883, fixing compensa
to that of executors and adminition of receivers, etc., does not apply to receivers who had rendered services and ac- strators, and Chap. 442, Laws of quired the right to compensation therefor 1879, do not apply to receivers of prior to the passage of said Act.
insolvent insurance companies. Executors, trustees and receivers selling
Chapter 378, Laws of 1883, fix. property subject to incumbrances are not entitled to commissions upon the amount ing the compensation of receivers, of incumbrances. But where the receiver etc., does not apply to this repays off the incumbrances personally and ceiver, because he had rendered reimburses himself, such course being ne
the services and the right to comcessary to effect a sale of the corporate real estate, he will be entitled to commis- pensation therefor had accrued sions upon the amount of such incum prior to the passage of the Act. brance.
Held further, That while exeSection 13 of Chap. 902, Laws of 1869, ren
cutors, trustees and receivers selldering the compensation of clerks and actuaries employed by receivers subject to ing property subject to encumthe approval of the Superintendent of the brances are not entitled to comInsurance Department, applies to and in- missions upon the amount of the cludes only receivers appointed under that
encumbrances, in this case the reAct. A receiver will not be allowed in the settle ceiver is entitled to have his comment of his accounts for moneys actually pensation reckoned upon the enpaid an employee whose services were un- cumbrance personally paid off by necessary to the proper management of the him, he reimbursing himself, such pensed with.
payment being necessary in order Counsel representing intervening policy
to enable him to effect a sale of the holders in an action for the distribution of real estate. the funds of an insolvent insurance com
Section 13 of Chap. 902, Laws pany are not entitled to compensation for their servicey out of the fund.
of 1869, applies to and includes
only receivers appointed under Appeal from an order confirm
that Act. ing the report of a referee appoint
With respect to the compensaed to pass the accounts of the re
tion paid to Mr. Hurd, the actuary, ceiver of the Security Life Insur- it clearly appears from the testiance and Annuity Company.
mony that the continuance of his L. W. Russell, Atty.-Genl. employment beyond the period of
R. J. Moses, Jr., and Wm. two years was unnecessary, and Barnes, for applt.
the sum paid to him by way of
salary beyond his compensation Hamilton Cole, for rec'r.
for that period shonld be charged Held, That under the recent de- against and deducted from the cision of the Court of Appeals in commissions of the receiver.
The office of a receiver is not | inhabitant, freeholder or freeman. that of a sinecure, but one requir- Plaintiff had a verdict. Defending the careful attention, superin- ant claims error in the exclusion tendence, and personal admini- of the jurors. stration of the receiver himself.
R. A. Parmenter, for applt. Held further, That nothing can
James Lansing, for respt. properly be allowed to the counsel representing intervening policy
Held, No error. The rejection holders. 24 Hun, 114; 27 Hun,
114; 27 Hun, of a competent juror is not ground 195; 90 N. Y., 45; 91 N. Y., 57.
of error where the jurors who acOrder modified in conformity tnally try the case are competent. to the views above expressed.
All that a party can ask is that Opinion by Daniels, J.; Davis, the jurors who try the case be P. J., and Brady, J., concur.
competent. The rejection
of others equally competent does not
harm him. JURY. PRACTICE.
Judgment affirmed, with costs.
Opinion by Learned, P. J.; N. Y. SUPREME COURT. GENERAL Boardman and Bockes, JJ., conTERM. TIRD DEPT.
cur. Henry Hildretli, respt., v. The City of Troy, applt.
ASSESSORS. Decided Nov., 1883.
N. Y. SUPREME COURT. GENERAL
TERM. TIRD DEPT. The rejection of a competent juror is not ground of error where the jurors who
The People, respts., v. Andrew actually try the case are competent.
Campbell et al., applts. This action was for negligence
Decided Nor., 1883. in suffering a pavement to be out of repair; plaintiff was thrown For a wilful refusal or neglect, not corrupt, by from a wagon and hurt. The an assessor to perform his duties as such,
he is only liable to a penalty of $50. court held all residents of Troy
If liable for corruption in office, under 2 R.S., disqualitied to sit as jurors where
m. p. 696, $ 38, he must be allowed to show the city was a party. Defendant on the trial that he acted in good faith, e. excepted, claiming that residents g., that he first consulted a lawyer as to
his right to do the act complained of. and tax-payers were competent; but he cited no authority. There- Appeal from a judgment and after a jury was gotten, to none of conviction at the sessions. whom did either side object. It Defendants were assessors of a now appears that by a clause of town and were indicted among the Troy charter as passed in 1816, other things for a neglect to assess and in this respect never repealed, certain real estate at its full value, it was provided that no person and the indictment charged a corshould be deemed inconi petent as rupt assessment below the full a juror by reason of his being an valne In other counts it charged