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When an attachment has been issued and | Co., appt., v. Williamson et al., proceedings taken under it, and the sum

respts. mons is not served in any form until more than 30 days after the granting of the at- Decided Dec., 1883. tachment, the defendant is entitled to have an order entered vacating the attachment, Highway commissioners sought to acquire notwithstanding the fact that by reason of

lands for highway purposes acquired by such failure to serve the summons it has railroad company for depot purposes by become inoperative.

proceedings under Chap. 56, Laws of

1830. Held, That an injunction was Appeal from an order denying

proper remedy-the highway could not be motion to vacate an attachment. opened through plaintiff's lands without An attachment was issued in

its consent. this action, and was served upon Appeal from dismissal of comtenants of defendant and upon a plaint by Special Term upon new bank in which she was thought to trial granted by Court of Appeals, have funds on deposit; but the and from order allowing supplesummons was not served, in any mental answer. form, until more than 30 days Morris & Pearsall, for applts. after the issuing of the attachment, J. H. Bergen, for respts. and, for that reason, a motion was Held, That this was a proper made to vacate it. The court de- case for injunction, and that after nied the motion, apparently upon the railroad company had brought the ground that the attachment suit for the same against the comhad become inoperative and could missioners, and then gave its conbe of no possible injury to de- sent to the building of the highfendant.

way to the supervisors, subject to Kelly & MacRae, for applt.

certain conditions and control of Edward P. Wilder, for respt. highway, the plaintiff should have Held, Error; that proceedings

had judgment; that no road could had been taken under the attach

be opened through plaintiff's lands ment, and, although it had become without its consent; that defendinoperative, defendant was still ant's acts threatened serious inentitled to an order definitely de- jury to plaintiff, and it is no de

fense claring that to be the fact.

to say defendants have

22 Hun, 472 ; 84 N. Y., 614.

abandoned proceedings; that the Order reversed, and order en right of plaintiff to seek the aid tered vacating attachment,

of the court to restrain defendant's Opinion by Daniels, J.; Davis,

acts must depend on what they P. J., and Brady, J., concur.

were doing or threatening to do at the time of the commencement of

the action; that consent given to INJUNCTION. HIGHWAYS. the supervisors is not a defense ; it

is not a settlement of the suit, beN. Y. SUPREME COURT. GENERAL

cause it is not an agreement beTERM. SECOND DEPT.

tween the parties--it is an agreeThe Prospect Park & C. I. RR. ment that the public may use land

Vol. 18.-No. 11b.

a

as a highway, subject to con- commissioner of highways, refusditions, and in the right to im- ing to lay out a highway after its pose them is involved the question necessity had been certified by a at issue and which has been de jury, was reversed and the highcided by the Court of Appeals in way was laid out. plaintiff's favor. It is unneces. Morris, Kellogg & Morris, for sary, from our view of the case, to relator. consider the appeal from the or- C. A. Boynton, for referees. der allowing supplemental Held, That after deciding to reanswer. Defendants did not avail verse the order of the commissioner, themselves of its provisions, but it became the duty of the referees were allowed to prove what they to lay out the highway in the same wished to plead, and the testimony manner required of commissioners. has been considered.

1 R. S., * 519, § 91 ; Laws of 1847, Judginent reversed, with costs, Ch. 455. A notice of the time and order appealed from affirmed, with place of so doing must be given to costs.

the occupant of the land through Opinion by Brown, J.; Dyk- which the road is to pass after тап, Ј., concurs.

the determination that the road is necessary, and before it shall be

laid out. 1 R. S., * 414, S 62. HIGHWAY. COSTS. PRAC

This requirement on the part of TICE.

the commissioner applies equally N. Y. SUPREME COURT. GENERAL

to referees. 54 N. Y., 52. TERM. TIRD DEPT.

This was not done or does not

appear to have been done on this People ex rel. Harry G. Crooks occasion, and hence the referees v. Henry 0. Sweet et al.

lost their jurisdiction, and their Decided Nov., 1883.

order for that reason must be re

versed. The requirements of 1 R. S., * 414, $ 62, that The hearing upon the return is commissioners of highways give notice to properly heard at the General the occupant of land through which the road is to run after the determination that

Term in the first instance. Code, the road is necessary, and before it shall § 2138. Costs not exceeding $50 be laid out, applies equally to referees who and disbursements may be allowed lay out a highway pursuant to 1 R. S.,

in the discretion of the court. * 519, § 91, Laws of 1847, Chap. 455.

Code, S 2143. As the defects for The hearing upon return to certiorari,

brought to review the order of such refers | which the order is reversed are ees, reversing order of commissioners of irregular rather than meritorious, highways and laying out a highway, is no costs should be allowed to properly heard at the General Term in the

either party. first instance.

Order reversed, without costs. Certiorari to review the action of Opinion by Boardman, J.; referees appointed by the county Learned, P. J., and Bockes, J., judge, whereby the decision of a concur.

*

PRACTICE. NEGLIGENCE.

sections referred to embrace this

casé. It was not, therefore, withN.Y. SUPREME Court. GENERAL in the discretion of the trial judge TERM. SECOND DEPT.

to grant a new trial in this case John Higgins, respt., v. The after dismissing plaintiff's comGeneral Transatlantic Co., applt. plaint.

Plaintiff was employed by one Decided Sept., 1883.

L., the owner or overseer of a floatThe judge presiding at a trial by jury cannot ing elevator, and at the time of the grant a new trial after dismissing the com- injury was engaged in loading plaint.

grain on one of defendant's vesPlaintiff, an employee of one L., the owner

sels. The grain was loaded from of a floating elevator, was engaged in

the elevator, which lay alongside loading grain in one of defendant's vessels, and was injured by falling down a hatch the ship, by means of a pipe exway in the lower deck, which was in the tending down to the lowest deck exclusive charge af L's employees, and of the ship. Plaintiff's master which had been left open for the reception

directed him to go to the lower of the grain. It did not appear that defendant employed the elevator, or that the deck and move the pipe to the grain was loaded for it. Held, That de hatch way forward from where he fendant owed plaintiff no duty and was had worked the day before. He not liable.

descended to the lower deck, walkAppeal from order granting new ed forward and fell through an trial after nonsuit.

open hatchway and was injured. Action for negligence. The case It did not appear that defendant was tried at Circuit before a jury, employed the elevator, or had any and at the close of plaintiff's evi- | interest in the grain, or that it was dence a motion to dismiss the com

loaded for the company. The plaint was granted. Subsequent hatchways on the lower deck had ly, at the same term, plaintiff been in use by plaintiff and the moved for a new trial on the min. grain loaders the day before in utes, and an order was made set. running down grain, and they had ting aside the nonsuit and grant- exclusive charge of them, ing a new trial.

Held, That the complaint was Coudert Bros., for applt.

properly dismissed.

It may be C. J. Patterson, for respt.

conceded that plaintiff was lawHeld, Error. The trial judge fully on the ship, but as he was can only entertain a motion on his not in the employ of defendant minutes to set aside a verdict and the company owed him no duty. grant a new trial. Code, $997. If the ship had been in such a Then follows $ 1002, to say that state of decay as to be dangerous “In a case not specified in the last to all persons who went on board three sections, a motion for a new of her lawfully, that might have trial must, in the first instance, be constituted a nuisance and cast heard and decided at the Spe- liability on the owners for injuries cial Term.” Neither of the three resulting therefrom. But there is no such claim. There is no pre- the referee's fees in the first instance, as intense of faulty construction or im.

cidental to the prosecution of his claim;

and an order directing the receiver to pay perfect condition either in the ship

such fees pending an appeal from the order or the hatchways.

confirming the report is improper. Instead of being usual or neces- A referee is not obliged to deliver his report sary for the company to cause

until his fees are paid, and, having deliv.

cred it, be takes the consequences of that guards to be placed around the

act, and must seek payment from the party hatches at such a time, it would

in whose favor the report was made if the have been quite unusual and ex- order confirming vis report is ultimately traordinary, especially as no active

reversed on appeal. duty was due to the persons en- Appeal from an order authorizgaged in loading the grain.

ing the receiver of defendant to It is fairly to be inferred from pay John E. Develin, Esq., certain the testimony that these hatch- fees as referee. ways were left open to receive the One D. was appointed referee in grain, and that as one was filled this action to hear and determine the pipe leading from the elevator all contested claims against the was changed to another, and that defendant. During the pendency all were left open for that purpose of the action D. died, and, subseby plaintiff and others engaged in quently, his administrator claimed so loading the grain, and all were from the receiver of the defendant in charge of the loader.

a large amount as fees due D. as Swords v. Edgar, 59, N. Y., 28, referee. A dispute having arisen distinguished.

| with regard to these fees, John E. Order reversed, with costs. Develin, Esq., was appointed

Opinion by Dykman, J.; Bar. referee to determine how much, if nard, P. J., concurs.

anything, was due for the services of D. Mr. Develin subsequently

made his report, recommending REFEREE'S FEES.

an allowance of a certain sum to N.Y. SUPREME COURT. GENERAL, the admistrator of D., and delivTERM. FIRST DEPT.

ered this report without the pay.

ment of his fees. This report was The Attorney General v. The confirmed, and an appeal was Continental Life Insurance Com

taken to the General Term from pany. In re claim of John E

the order confirming it, where it Develin for fees as referee.

was reversed, and an appeal was Decided Dec. 21, 1883.

then taken to the Court of Ap

peals. During the pendency of When a person makes a claim against the ie ceiver of an insolvent insurance company

this latter appeal the receiver of for payment out of the assets for services

the defendant made an application performed by him, and a reference is ordered for leave to pay the fees of Mr. to ascertain the amount due such claimant, Develin, which was granted, and if any, and the referee reports in favor of

from the order granting it this the payment of a certain sum to the claimant, it is the duty of the claimant to pay appeal was taken.

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Raphael J. Moses, for applt.

she remained his widow, with remainder

to his children in the event of her death or William C. Trull and E. H.

remarriage, but reserving to her her dower Hobbs, for respt.

right in the latter event, cannot be comHeld, That the obligation to puted by the annuity tables. pay the referee's fees in the first instance rested upon the claimant Appeal from order of the Special as incidental to the prosecution of Term denying motion to compel his claim, 27 Hun, 524, and, since purchaser to take title on a sale the referee was under no obligation under a judgment of partition and to deliver his report until his fees sale. were paid, having done so, he took Peter J. Lehning died in 1869, the consequences of that act, and seized of the premises sought to must seek payment from the party be partitioned by this action, leavin whose favor the report was ing him surviving his widow, three made, and that the granting of adult children, and one infant the order appealed from was im- child. By his will he devised and proper.

bequeathed to his widow a life esOrder reversed.

tate in the whole of his property Opinion by Brady, J.; Davis, provided she should remain his P.J., and Daniels, J., concur.

widow, with remainder to his chil. dren, share and share alike, on the

death or remarriage of his widow, PARTITION.

reserving, however, to his widow, N. Y. SUPREME COURT. GENERAL dower in his estate.

in case of her remarriage, her

This action TERM. FIRST DEPT.

was brought by one of the deviCharlotte L. Scheu, applt., v.

sees in remainder for the purpose F. Lehning et al., respts.

of having a partition of the tes

tor's real estate, or a sale thereof Decided Dec. 21, 1883.

and a division of the proceeds. All

the defendants appeared,' the inUnder $ 1533 of the Code of Civ. Pro., an action brought by a joint tenant, or a tenant

fant by her guardian and the othin common of a vested remainder, to par. ers by attorney. On a reference tition real estate, subject to the interest of to ascertain whether actual partithe owner of the particular estate, can be tion could be made, the referee maintained only when actual partition of the property is possible ; and when it ap.

reported that the property was not pears that such partition cannot be made, capable of equal partition, and that the court has no jurisdiction except to pro- the only mode of division was by nounce judgment dismissing the complaint;

a sale. The widow filed a consent and the consent of the owner of the particular estate that the property be sold, and

that the property be sold, and an to receive a gross sum out of the proceeds agreement to accept a sum of of the sale of the property in lieu of such

money out of the proceeds to be particular estate, does not enable the court

calculated according to the princito proceed and enter judgment of sale.

annuThe value of an estate given in a will to the ples applicable to life

widow of the testator for her life, provided ities, pursuant to the Ports

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