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in Chamberlain v. Chamberlain,

43 N. Y., 424. In that case there

PUBLICATION.

were bequests to the widow in lieu N. Y. SUPREME COURT. GENERAL

TERM. SECOND DEPT.

William H. Argall, plff., v. Joseph Bachrach, deft.

Decided Dec., 1883.

When a party who has an apparent lien upon premises being foreclosed is served by publication of the summons upon an affidavit simply stating that such party is a resident of the State of Connecticut, the court acquires no jurisdiction over such party, and proof given in the case that such lien was paid will not bind such party and the court will not compel the purchaser to take title therein.

Submission of controversy without action.

of dower and any other share and interest in the estate. Some of the legacies were void, and it was held that the widow must be excluded from receiving any part thereof. There is no difference between a lapse and an invalid disposition in other ways, as by an illegal bequest. The legacies in each case fail and the property is undisposed of. The words in the present will in reference to the widow's exclusion from the estate are fully as comprehensive as in Chamberlain v. Chamberlain. The court say: "The words employed are sufficient to exclude the widow's claim to receive any part of the estate not specifically given to her by the will. The testator in substance declares that is widow shall, if she takes under the will, receive so much and no more, and that the same shall be in satisfaction of every other claim and demand upon the estate and every part of it." The condition was imposed, not for the benefit of other legatees, but as a limitation of the claims of the widow upon the estate. These words would be sufficient to exclude the wife, if she accepted, from all participation in the estate if the remainder was wholly undisposed of by the will, and as to these legacies that is the position in which the appellant stands. Parts of decree appealed from the sale and refuses to take title affirmed.

Opinion by Barnard, P. J.; Dykman and Pratt, JJ., concur.

The title is derived through a foreclosure of a second mortgage. The first mortgage was held by one Almira D. Kirby. She had borrowed $400 upon it and it was held by the Stonington Savings Bank as collateral to the loan. The mortgage was for $1,750. Upon the foreclosure of the second mortgage Mrs. Kirby and the Stonington Savings Bank were made parties, and the complaint averred that the $1,700 mortgage was paid. Mrs. Kirby lived in Connecticut, and the summons was served upon her by publication. The affidavit upon which the order of publication was made. was based simply upon the statement that Mrs. Kirby was a resident of the State of Connecticut. Defendant was the purchaser at

and the question as to validity of such title is presented by submitted case.

G. H. Brewster, for plff.

A. C. Hockemeyer, for deft.

Held, That the title is not good. That such statement has been held by the Court of Appeals an insufficient statement to justify an order of publication. That such an allegation did not establish that due diligence had been exercised to serve the summons personally in this State. It was proper to make Mrs. Kirby a party and have her apparent lien destroyed by judicial decree. 58 N. Y., 168; 75 id., 127. There is no reason to doubt the payment of the mortgage. It is proven in the case, but in the absence of Mrs. Kirby. The court by the affidavit acquired no jurisdiction over her and could not bind her. She had an apparent interest notwithstanding the assignment collateral to the loan. She owned the reversion, the right to all the proceeds beyond the loan and the right of redemption from the loan by its payment.

One who merely owns a water-course, the right to the flow of water, cannot maintain trespass for fishing in it.

Appeal from judgment of county court, reversing judgment of a justice's court in favor of defendant in an action for trespass. A. H. Farrer, for applt. W. H. Silvernail, for respt.

Held, No reason is given by the county court why the judgment in favor of defendant in the jus tice's court was reversed. We must decide, then, from the whole case, whether the justice's judg ment can legally be sustained. Every presumption must be indulged in its favor; error must be made to appear affirmatively or by necessary inference. 45 Barb., 258.

Defendant contends there is no evidence of ownership by plaintiff of the soil under and adjoining the stream. We think that is true. The mere ownership of the water-course, the right to the flow Judgment on submitted case for of water, would not give plaintiff defendant.

Opinion by Barnard, P. J.; Pratt, J., concurs; Dykman, J., dissents.

TRESPASS. JUDGMENT.

N. Y. SUPREME COURT. GENERAL
TERM. THIRD DEPT.
Oliver J. Peck, respt., v. Brad-
ley Nichols, applt.

Decided Nov., 1883.

Every presumption must be indulged in favor of a judgment. Error must be made to appear affirmatively or by necessary inference.

this right of action for trespass in fishing in it. Laws of 1879, Ch. 534, §§ 16, 17; 60 N. Y., 56. Very possibly he may have been such owner, but the fact does not appear, and the absence of such fact would justify a verdict for defend

ant.

Judgment of county court reversed and that of justice's court affirmed, with costs.

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

concur.

BANKRUPTCY.

opposed paying the mortgage out of the assets. Thereupon the

N. Y. SUPREME COURT. GENERAL agreement in question was made
TERM. FOURTH DEPT.
William E. Story, respt., v. The
Cuba State Bank, applt.

Decided Oct., 1883.

An agreement tending to avert investigation into the validity of a chattel mortgage, which, if valid, creates a preference of creditors of a bankrupt, is void as being

against the policy of the bankrupt act.

by those three parties. The agreement purports to be a compromise and adjustment of the several matters in dispute between the parties, but the only controversies mentioned as existing were those relating to the validity of the chattel mortgage and the rights of the several parties by virtue of the same. The agreement expressly

Appeal from judgment on ref- provides that it is in no way to eree's report.

Action to recover $800, alleged to be due to plaintiff from defendant by the terms of a special agreement. Story & Son had been adjudged bankrupts. Among their creditors were the parties herein. Defendant's claim was a note for $2,000, made by the bankrupts, and indorsed by N. for their accommodation. N. held a mortN. held a mortgage on Story & Son's personal assets to secure his indorsement. Plaintiff proposed to contest the validity of the mortgage. N. owed the bankrupts $482, which he re fused to pay unless the assignee, who had taken possession of the mortgaged property, would pay the balance of said note out of the proceeds of said property. Upon the assignee's petition the bankrupt court ordered a reference to a register to hear and take proof concerning the claims of N. due the estate, and concerning said chattel mortgage, and whether the assignee should pay it. The register began the hearing; N. and the bank appeared before him; plaintiff also appeared and

66

affect the rights of either of the parties in case the bankrupt court should adjudge the mortgage invalid. There was no consideration for the promise on which plaintiff sues stated in the agreement or to be gathered from its provisions, other than the withdrawal of plaintiff's opposition to the mortgage. Subsequently to said agreement the register reported to the court in favor of granting the assignee's prayer, and thereupon an order was made, reciting the fact of the reading and filing of the stipulation of the parties in the matter of said application and all parties interested therein," and directing that the report be confirmed and that the assignee pay to the holders of the note and mortgage the sum of $2,000, and interest, less the sum stated in the report as owing to the estate by N., and at the same time take from said holders and N. full satisfaction of said note and mortgage and all claims arising thereon. The money was paid by the assignee to the bank, and the bank gave its receipt and a

release so drawn as not to affect the bank's claim against N.

The only controversy between any of the parties was as to the validity of the mortgage. The referee found that the agreement was executed and delivered for a sufficient and lawful consideration, and that it was not agreed on plaintiff's part, in consideration of the execution and delivery of the agreement, that he would withdraw his opposition to the validity of the mortgage.

Angel & Armstrong, for applt. Loveridge & Swift, for respt. Held, That the referee's findings cannot be maintained. Whether

mortgage was being investigated was not instituted or controlled by either of the parties to the agreement; that the assignee, by whom it was instituted, was not a party to the agreement; and that he and the other creditors were at liberty to oppose the mortgage to the fullest extent. 3 Seld., 176, and cases cited.

Judgment reversed and new trial ordered before another referee, costs to abide event.

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

FIXTURES.

the agreement be looked at alone, N. Y. SUPREME COURT. GENERAL

or in connection with the attendant circumstances and the subsequent conduct of the contracting parties, the conclusion cannot be resisted that the intent of the agreement to pay plaintiff the sum stipulated was to induce him to withdraw his opposition to the mortgage. Obviously that was its effect, and the parties must be presumed to have intended the immediate consequences of their

acts.

The agreement is against the policy of the bankrupt act. As the mortgage, if valid, created a preference, it was important to the other creditors that its validity should be inquired into, and any arrangement tending to smother or avert investigation was an attempt to defeat the object of the act, and should be declared void for that reason. 3 Seld., 176. It is no answer that the proceed. ing in which the validity of the

TERM. THIRD DEPT. Horten Cottrell, applt., v. Ellwood Griffin et al., respts.

Decided Nov., 1883.

Slate mantels hung upon hooks in false chimneys are personal property and not fixtures.

Appeal from judgment in favor of defendants, entered on report of referee.

Defendants are husband and wife, and gave plaintiff a mortgage upon the real estate of defendant Ellwood. Afterwards the defendant Mary bought with her own money two slate mantels and had them hung upon hooks in the breasts of two false chimneys. They were put up as her property in a manner to enable her to remove them if she desired. They could easily be removed without injury to the chimney breasts. The mortgage was foreclosed and plaintiff bought in the real estate.

Afterwards defendants removed the mantels. This action was brought for their possession. James White, for applt. A. D. Wait, for respts.

Held, That the mantels were no part of the realty. The case of gas fixtures is much in point. With much more propriety might they be held to be part of the realty. But they are not. So of pier and mantel mirrors built to order for a house and attached as were these mantels to the walls. The case of McKeage v. Hanover Ins. Co., 16 Hun., 239; affd., 81 N. Y., 38, seems to us directly in point and conclusive in favor of defendants in this action. The case of Ward v. Kilpatrick, 85 N. Y., 413, does not conflict with it. The facts were different and the work was protected by a mechanics' lien law.

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

concur.

NEGLIGENCE. UNLIGHTED

STAIRWAY.

plained of was the failure of defendant to keep said stairway lighted. Held, That it was a question for the jury whether or not plaintiff used ordinary prudence in believ ing, when she fell, that she was about to step from the last step, and that a verdict for plaintiff should be sustained.

Appeal by defendant from judg ment for plaintiff entered on verdict and from order denying motion for new trial upon the judge's minutes.

Action for damages to plaintiff from the alleged negligence of defendants. A motion was made to dismiss the complaint upon the ground that plaintiff had not shown herself to be free from negligence.

Plaintiff's injury was a consequence of falling to the ground as she was descending a flight of steps. leading from defendant's elevated railroad. That part of the steps from which she fell was not light. ed by defendant. There had been a light, but it was not burning at the time of the accident. It was claimed that plaintiff knew, long before she fell, that the descent was very dark; that she felt ahead very carefully with her foot for every step; that thinking she was

N. Y. SUPERIOR COURT. GENERAL at the bottom, when in reality she

TERM.

Henrietta F. Flagg, respt., v. The Manhattan R. Co., applt.

In an action to recover damages for injuries caused by defendant's negligence, it appeared that plaintiff, while descending a fiight of steps leading from a station of defend ant's elevated railroad, which at the time was very dark, felt carefully with her foot for every step, until within a few steps of the ground, when, thinking she was at the bottom, she stepped out and was precipita ted with great force. The negligence com

was three or four steps up, she stepped out, as though the bottom had been reached, and was precipitated with great force; that if she had continued to feel ahead with either foot she would have been safe; that the accident arose from her not feeling for the step; that the fact was, that thinking she was at the bottom, she took a longer reach with her foot than she would have done if she intended to place

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