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mouth or Northampton tables, and pronounce the judgment of in lieu of her life or

or other

other sale. interest in the premises. Upon That the value of the estate the coming in of the referee's given to the widow could not be report the infant defendant, by determined by the annuity tables. her guardian, filed exceptions to That the purchaser could not rethe report, substantially insisting ceive a title free from reasonable that, upon the facts, no sale of the question or doubt, and was not premises could lawfully be made. bound therefore to proceed and The court overruled the exception complete the purchase. 77 N. Y., and gave judgment directing a 518; 86 N. Y.,

, 580. sale and division of the proceeds. Order affirmed. The purchaser pon such sale re- Opinion by Davis, P. J.; Brady fused to complete his purchase and Daniels, JJ., concur. and take title, whereupon a mo. tion was made to compel him to This motion was denied

DIVORCE. ALIMONY. and the plaintiff and the widow N. Y. SUPREME Court. GENERAL appealed.

TERM. FIRST DEPT. Henry Kropf and G. H. Hoffman, for applts.

Ella L. Winton, respt., v. WalJ. Van Vechten Glcott, for Leh- ter W. Winton, applt. ning, applt.

. Wyatt & Trimble, for the pur.

Decided Dec. 21, 1883. chaser.

After the entry of final judgment in plaintiff's Held, That, under $ 1533 of the favor in an action for divorce brought by Code of Civ. Pro., providing for

the wife, the court has no power to grant a

counsel fee to plaintiff's attorney to recoman action for partition of real

pense him either for services performed property bought by a remainder

prior to the entry of such judgment or for man, when it appears in such an those performed by him in resisting an apaction that actual partition cannot peal by the defendant to the General Term be made without great prejudice to

and the Court of Appeals. the owners the court has no ju- Appeal from an order directing risdiction except to pronounce a the payment by defendant of $250 judgment dismissing the com- to plaintiff's counsel as a connsel plaint.

fee. That such an action can be This was an action for a limited maintained only where actual par- divorce. Final judgment tition of the property itself can entered in this action in plaintiff's properly be made.

favor, fixing her alimony, &c., on That the consent of the widow June 23, 1882. Defendant apthat the property be sold, and the pealed from this judgment to the value of her particular estate be General Term, which rendered a ascertained and paid to her, did decision on the 12th of January, not enable the court to proceed | 1883, reducing the amount of ali


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mony, and defendant subsequently entitled to demand. After that appealed from this judgment to the proceedings in the case are the Court of Appeals. During the regulated by other provisions of pendency of this latter appeal and the Code in no manner extending on the 19th of March, 1883, plain- the continuance of this authority. tiff moved for a further counsel They are confined to the right of fee in addition to those already either party to review the judggranted her, and an order was en- ment, and that right is absolutely tered thereupon granting a counsel given to either party on the perfee of $250 for the services of formance of certain prescribed laintiff's counsel since the 11th conditions, of which the payment of May, 1882. From this order of an allowance of this nature is defendant appealed.

not one. That if the authority to B. F. Sawyer, for applt.

direct allowances of this nature E. P. Wilder, for respt..

should be held to continue during Held, That as far as the order the pendency of an appeal from included services which had pre- the judgment, it might be exercised ceded the final judgment it was in such a manner as altogether to unauthorized, for, by the judg. defeat the right of appeal, and the ment, all the preceding rights and law has in no form committed its obligations of, the parties were exercise to the court. finally disposed of and the court Anonymous, 15 Abb., N. S., 307, determined the extent of the relief overruled. to which the plaintiff had become Order reversed and motion deentitled. 59 N. Y., 212.

nied. That the residue of the allowance Opinion by Daniels, J.; Davis, was also without authority, for P. J., and Brady, J., concur. the statute has confined the power of the court to allowances of this nature during the time of the pen

STATUTE OF FRAUDS. dency of the action. Code Civ.

N.Y. SUPERIOR COURT. GENERAL Pro., $ 1769. That the statute was

TERM. designed to oblige the husbaud in

Matthew White, appll., a proper case to provide for the support of his wife until that James Rintoul, respt. could be determined and finally Decided Dec. 17, 1883. adjusted by a judgment entered in the action. That after the en

Where one of two creditors of a certain firm,

holding the notes of said firm for its intry of judgment the exercise of

debtedness, at the request of the other this authority by the court be

creditor, and to enable the latter to collect comes unnecessary as well as inap- his claim against the firm, promises to delay propriate, for that must be in- proceedings for the collection of said notes tended to afford the plaintiff all

till a certain time after their maturity, in

consideration of which the other creditor the relief which, under the cir

agrees to pay the notes at such date, such cumstances, she can be deemed

agreement to pay said notes is an original


undertaking and is not within the Statute that neither of them has been paid, of Frauds, and is therefore enforceable

etc. though not in writing.

Robertsons, Harmon & Cuppia, Appeal from judgment in favor for applt. of defendant, entered upon dis- Davenport & Leeds, for respt. missal of plaintiff's complaint. Held, That the complaint was

The complaint was dismissed improperly dismissed, as it apupon the ground that plaintiff's peared that defendant's promise counsel, in opening the case, ad- was not made for the benefit of the mitted that the promise of defend- firm, nor in aid of their original ant alleged in the complaint was contract, but for defendant's own not in writing, the trial judge benefit as a creditor; that the sole holding that it came within the object of defendant in making the provisions of the Statute of Frauds promise was to promote and subas being a promise to answer for serve an interest of his own, and the debt of another. The material that the consideration, viz., plainfacts pleaded were as follows: tiff's forbearance, went directly to

That on or about August 16,1880, him, though the firm indirectly plaintiff held the promissory notes may also have had the benefit of of Wheatcroft & Rintoul, to his it. 8 Johns., 28 ; 21 N. Y., 412; order, of which the first þad about 71 N. Y., 91. The promise, though two, and the second about six in form a promise to pay the debt weeks, to run; and that at the of another, is to be treated as same time defendant was also a original and not collateral, and creditor of said firm.

for that reason the Statute of That at the request of defend- Frands does not apply. ant, and for the purpose of pre- Judgment reversed and new trial venting an injury to his interests ordered, costs to abide the event. as such creditor, looking to the Opinion by Freedman, J.; property of said Wheatcroft & Sedgwick, Ch. J., and O'Gorman, Rintoul to collect his claim, plain- J., concur. tiff, about August 16, 1880, agreed with defendant not to institute DIVORCE. ALIMONY. any legal proceedings for the col. lection of either of said notes be. N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT. fore July, 1881. That in consideration of such promise defendant Sarah A. Lloyd, respt., v. Wm. undertook and agreed with plain- T. Lloyd, applt. tiff that he would pay plaintiff the

Decided Dec. 21, 1883. amount of said two notes before said July, 1881. That plaintiff When, on an application for alimony and kept and observed his said agree

counsel fee in an action for divorce, the ment, and that defendant did not

plaintiff swears that she is informed and

believes that defendant has an annual inkeep and has not kept his said

come of $10,000, statements by the defendpromise to pay said notes; and

ant, in his opposing affidavits, to the effect

that he is embarrassed in business, and cerning the amount of defendant's largely indebted, and unable to pay ali- income as to warrant the conclumony, &c., will not warrant the denial of such application, or a reduction on appeal sion that it had been overstated. of an allowance of $150 per month and That if that were the fact the state$500 counsel fee.

ment should have been plainly deIf plaintiff's statement of the amount of denied by defendant and his brother. fendant's income was not correct defendant should have denied it directly.

That no case was made out for a

reduction in the sums directed to Appeal from order allowing be paid. 4 N. Y. Supreme Court plaintiff a counsel fee of $500 and Rep., 574. $150 per month as alimony pen- Order affirmed. dente lite.

Opinion by Daniels, J.; Davis, This was an action for divorce P. J., and Brady, J., concur. because of the alleged adultery of defendant, and in support of plaintiff's application for these allow

USURY. ances she showed by her affidavit N. Y. SUPREME COURT. GENERAL that she was destitute of means

TERM SECOND DEPT. and that she was informed and

George S. Allison, respt., v. believed that defendant had an

Rose Schmitz et al., applts. annual income of $10,000. Defendant opposed the application Decided Dec., 1883. by the affidavits of himself and

A usurious mortgage which includes the his brother, who was associated

amount of a prior valid mortgage which with him in business, which al- was assigned to the holder of the usurious leged that their business was not mortgage cannot be used as a defense to

an action upon such valid mortgage. in a prosperous condition and that, owing to plaintiff's habits of ex This is an appeal from a judgtravagance, defendant was largely ment of sale in foreclosure. in debt and was unable to pay Plaintiff agreed to loan to dealimony and counsel fee in this fendant Schmitz $3,000. The loan action, but neither the affidavit of was made to pay a mortgage exdefendant or of his brother di- isting upon the property of $2,500 rectly denied the statement of and the remainder in cash. The plaintiff that defendant had an agreement was usurious. Plainincome of $10,000, nor did they tiff paid the prior mortgage and state what the amount of his in. took an assignment of it to himself. come was.

He also took a mortgage for $3,000, Rufus F. Andrews and George which sum included the old mortH. Brewster, for applt.

gage and the cash advanced. The Tremain & Tyler, for respt. $3,000 mortgage was decided void

Held, That the statements of for usury. This action is brought defendant and his brother were to foreclose the $2,500 mortgage not so responsive or in contlict J. Brown, for respt. with that made by plaintiff con- H. D. Batchelder, for applts.

Vol. 18.–No. 12.

Held. That the mortgage in received by her in lieu and bar of her dower question was not paid by defend

and of all claims she may have upon or

against his estate as his widow, she takes ant. It was a valid claim against

no portion of a dower interest in that part her and plaintiff paid the amount of the estate undisposed of by reason of of the same to the holder and took legacies having lapsed or invalid disposian assignment. The amount was

tions in other ways. paid from the amount of the loan Appeal from that part of the agreed to be made by defendant. decree of the surrogate excluding The creditor was changed but the appellant from all dower interest debt remained. Defendant Rose in that portion of the estate undisSchmitz had paid nothing. If posed of by will of testator, her this payment had been included in husband. an usurious mortgage the debt Testator, by his will, devised paid could still bave been revived real estate to his wife and cash to and collected. 64 N. Y., 294. If a large amount and made her the plaintiff had himself owned the legatee of the life estate of onefirst mortgage and had taken the fourth of his residuary estate real $3,000 mortgage under similar cir- and personal. By the 24th clause cumstances he could have enforced of the will he provides that “It is the old mortgage which was free my will and I do hereby declare from sury.

56 N. Y., 214. The that the devises and bequests invalid mortgage cannot be used hereinbefore made to and for the as a defense to a valid claim. 39 benefit of my beloved wife, Jane N. Y., 325. Plaintiff acquired a E. Bullard, are made and shall be perfect title to the first mortgage accepted and received by her in by the assignment, although the lieu and bar of her dower and of $3,000 one

usurious and all claims she may have upon or although he had agreed to pay against my estate as my widow.” the first mortgage out of the second The will gave legacies to a brother loan.

and cousin who died before the Judgment affirmed.

testator and these legacies lapsed, Opinion by Barnard, P. J.; and the question presented is Pratt and Dykman, JJ., concur.

whether the widow takes the usual widow's portion of these legacies

as in cases of intestacy. DOWER. WILLS.

C. J. Lowrey, for applt. N. Y. SUPREME COURT. GENERAL P. H. Adee, for respts. TERM. SECOND DEPT.

Held, That the legacies, uuder

the case of Kerr v. Doughty, 79 Jane E. Bullard, applt., v. Arthur W. Benson et al., exrs.,

N. Y., 327, are undisposed of and

pass to the next of kin. The quesrespts.

tion as to whether the widow takes Decided Dec., 1883.

the usual widow's portion of such Where testator by his will gives to his wife a legacies as in cases of intestacy is

certain sum which is to be accepted and answered by the Court of Appeals

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