respts. Decided Dec., 1883. When an attachment has been issued and Co., appt., v. Williamson et al., proceedings taken under it, and the summons is not served in any form until more than 30 days after the granting of the attachment, the defendant is entitled to have an order entered vacating the attachment, notwithstanding the fact that by reason of such failure to serve the summons it has become inoperative. Appeal from an order denying motion to vacate an attachment. An attachment was issued in this action, and was served upon tenants of defendant and upon a bank in which she was thought to have funds on deposit; but the summons was not served, in any form, until more than 30 days after the issuing of the attachment, and, for that reason, a motion was made to vacate it. The court denied the motion, apparently upon the ground that the attachment had become inoperative and could be of no possible injury to defendant. Kelly & MacRae, for applt. Held, Error; that proceedings had been taken under the attach ment, and, although it had become inoperative, defendant was still entitled to an order definitely declaring that to be the fact. 22 Hun, 472; 84 N. Y., 614. Order reversed, and order entered vacating attachment, Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. INJUNCTION. HIGHWAYS. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. The Prospect Park & C. I. RR. Vol. 18.-No. 11b. Highway commissioners sought to acquire lands for highway purposes acquired by railroad company for depot purposes by proceedings under Chap. 56, Laws of 1830. Held, That an injunction was proper remedy-the highway could not be opened through plaintiff's lands without its consent. Appeal from dismissal of complaint by Special Term upon new trial granted by Court of Appeals, and from order allowing supplemental answer. Morris & Pearsall, for applts. Held, That this was a proper case for injunction, and that after the railroad company had brought suit for the same against the commissioners, and then gave its consent to the building of the highway to the supervisors, subject to certain conditions and control of highway, the plaintiff should have had judgment; that no road could be opened through plaintiff's lands without its consent; that defendant's acts threatened serious injury to plaintiff, and it is no defense to say defendants have abandoned proceedings; that the right of plaintiff to seek the aid of the court to restrain defendant's acts must depend on what they were doing or threatening to do at the time of the commencement of the action; that consent given to the supervisors is not a defense; it is not a settlement of the suit, because it is not an agreement between the parties-it is an agreement that the public may use land Morris, Kellogg & Morris, for relator. 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 unnecessary, from our view of the case, to consider the appeal from the order allowing a supplemental answer. Defendants did not avail themselves of its provisions, but were allowed to prove what they wished to plead, and the testimony has been considered. Judgment reversed, with costs, order appealed from affirmed, with costs. C. A. Boynton, for referees. Held, That after deciding to reverse the order of the commissioner, it became the duty of the referees to lay out the highway in the same manner required of commissioners. 1 R. S., 519, $91; Laws of 1847, Ch. 455. Ch. 455. A notice of the time and * place of so doing must be given to the occupant of the land through Opinion by Brown, J.; Dyk- which the road is to pass after man, J., concurs. the determination that the road is necessary, and before it shall be laid out. 1 R. S., 414, § 62. * HIGHWAY. COSTS. PRAC- This requirement on the part of TICE. N. Y. SUPREME COURT. GENERAL the commissioner applies equally to referees. 54 N. Y., 52. 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 O. Sweet et al. Decided Nov., 1883. The requirements of 1 R. S., * 414, § 62, that to certiorari, brought to review the order of such referees, reversing order of commissioners of highways and laying out a highway, is properly heard at the General Term in the first instance. Certiorari to review the action of referees appointed by the county judge, whereby the decision of a lost their jurisdiction, and their order for that reason must be reversed. The hearing upon the return is properly heard at the General Term in the first instance. Code, 2138. Costs not exceeding $50 and disbursements may be allowed in the discretion of the court. Code, § 2143. As the defects for which the order is reversed are irregular rather than meritorious, no costs should be allowed to either party. Order reversed, without costs. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur. Appeal from order granting new trial after nonsuit. Action for negligence. The case was tried at Circuit before a jury, and at the close of plaintiff's evidence a motion to dismiss the complaint was granted. Subsequently, at the same term, plaintiff moved for a new trial on the minutes, and an order was made set ting aside the nonsuit and granting a new trial. Coudert Bros., for applt. C. J. Patterson, for respt. Held, Error. The trial judge can only entertain a motion on his minutes to set aside a verdict and grant a new trial. Code, $997. Then follows $1002, to say that "In a case not specified in the last three sections, a motion for a new trial must, in the first instance, be heard and decided at the Special Term." Neither of the three sections referred to embrace this It was not, therefore, within the discretion of the trial judge to grant a new trial in this case after dismissing plaintiff's complaint. Plaintiff was employed by one L., the owner or overseer of a floating elevator, and at the time of the injury was engaged in loading grain on one of defendant's vessels. The grain was loaded from the elevator, which lay alongside the ship, by means of a pipe extending down to the lowest deck of the ship. Plaintiff's master directed him to go to the lower deck and move the pipe to the hatchway forward from where he had worked the day before. He descended to the lower deck, walked forward and fell through an open hatchway and was injured. It did not appear that defendant employed the elevator, or had any interest in the grain, or that it was loaded for the company. The hatchways on the lower deck had been in use by plaintiff and the grain loaders the day before in running down grain, and they had exclusive charge of them, Held, That the complaint was properly dismissed. It may be conceded that plaintiff was lawfully on the ship, but as he was not in the employ of defendant the company owed him no duty. If the ship had been in such a state of decay as to be dangerous. to all persons who went on board of her lawfully, that might have constituted a nuisance and cast liability on the owners for injuries resulting therefrom. But there is 1 no such claim. There is no pretense of faulty construction or imperfect condition either in the ship or the hatchways. Instead of being usual or necessary for the company to cause guards to be placed around the hatches at such a time, it would have been quite unusual and extraordinary, especially as no active duty was due to the persons engaged in loading the grain. It is fairly to be inferred from the testimony that these hatchways were left open to receive the grain, and that as one was filled the pipe leading from the elevator was changed to another, and that all were left open for that purpose by plaintiff and others engaged in so loading the grain, and all were in charge of the loader. the referee's fees in the first instance, as incidental to the prosecution of his claim; and an order directing the receiver to pay such fees pending an appeal from the order confirming the report is improper. A referee is not obliged to deliver his report until his fees are paid, and, having deliv ered it, he takes the consequences of that act, and must seek payment from the party in whose favor the report was made if the order confirming his report is ultimately reversed on appeal. Appeal from an order authoriz. ing the receiver of defendant to pay John E. Develin, Esq., certain fees as referee. One D. was appointed referee in this action to hear and determine all contested claims against the defendant. During the pendency of the action D. died, and, subsequently, his administrator claimed from the receiver of the defendant a large amount as fees due D. as Swords v. Edgar, 59, N. Y., 28, referee. A dispute having arisen distinguished. TERM. FIRST DEPT. The Attorney-General v. The Continental Life Insurance Company. In re claim of John E Develin for fees as referee. Decided Dec. 21, 1883. When a person makes a claim against the te ceiver of an insolvent insurance company for payment out of the assets for services performed by him, and a reference is ordered to ascertain the amount due such claimant, if any, and the referee reports in favor of the payment of a certain sum to the claimant, it is the duty of the claimant to pay with regard to these fees, John E. Develin, Esq., was appointed referee to determine how much, if anything, was due for the services of D. Mr. Develin subsequently made his report, recommending an allowance of a certain sum to the admistrator of D., and delivered this report without the payment of his fees. This report was confirmed, and an appeal was taken to the General Term from the order confirming it, where it was reversed, and an appeal was then taken to the Court of Appeals. During the pendency of this latter appeal the receiver of the defendant made an application for leave to pay the fees of Mr. Develin, which was granted, and from the order granting it this appeal was taken. Raphael J. Moses, for applt. William C. Trull and E. H. Hobbs, for respt. Held, That the obligation to pay the referee's fees in the first instance rested upon the claimant as incidental to the prosecution of his claim, 27 Hun, 524, and, since the referee was under no obligation to deliver his report until his fees were paid, having done so, he took the consequences of that act, and must seek payment from the party in whose favor the report was made, and that the granting of the order appealed from was improper. Order reversed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. PARTITION. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Charlotte L. Scheu, applt., v. F. Lehning et al., respts. Decided Dec. 21, 1883. Under § 1533 of the Code of Civ. Pro., an action brought by a joint tenant, or a tenant in common of a vested remainder, to partition real estate, subject to the interest of the owner of the particular estate, can be maintained only when actual partition of the property is possible; and when it ap pears that such partition cannot be made, the court has no jurisdiction except to pronounce judgment dismissing the complaint; and the consent of the owner of the particular estate that the property be sold, and to receive a gross sum out of the proceeds of the sale of the property in lieu of such particular estate, does not enable the court to proceed and enter judgment of sale. The value of an estate given in a will to the widow of the testator for her life, provided she remained his widow, with remainder to his children in the event of her death or remarriage, but reserving to her her dower right in the latter event, cannot be computed by the annuity tables. Appeal from order of the Special Term denying motion to compel purchaser to take title on a sale under a judgment of partition and sale. Peter J. Lehning died in 1869, seized of the premises sought to be partitioned by this action, leaving him surviving his widow, three adult children, and one infant child. By his will he devised and bequeathed to his widow a life estate in the whole of his property provided she should remain his widow, with remainder to his children, share and share alike, on the death or remarriage of his widow, reserving, however, to his widow, in case of her remarriage, her dower in his estate. This action. was brought by one of the devisees in remainder for the purpose of having a partition of the testor's real estate, or a sale thereof and a division of the proceeds. All the defendants appeared, the infant by her guardian and the others by attorney. On a reference to ascertain whether actual partition could be made, the referee reported that the property was not capable of equal partition, and that the only mode of division was by a sale. The widow filed a consent that the property be sold, and an agreement to accept a sum of money out of the proceeds to be calculated according to the princilife annuapplicable to ples |