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Burr Maltice, for applt. S. A. Bowen, for respt. Held, Error. F., though not a party, was "interested in the event." The indemnity sought to be proved is against certain wrongful acts which F. committed. defendant is liable it is because the acts were wrongful; if wrongful F. is liable to plaintiff and is directly interested in having plaintiff recover against the indemnitor. Judgment reversed, new trial granted, reference discharged, costs to abide event. Opinion by Learned, P. J.; Boardman, J., concurs; Potter, J., dissents.

RESISTING OFFICER. N.Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

Ransom Hall, plff. in error, v. The People, defts. in error.

Decided Oct., 1883.

One may not resist an officer who levies upon his property under an execution upon a justice's judgment against a third party when the officer acts in good faith, believing the property to belong to the debtor.

Writ of error to Court of Sessions to review a judgment and conviction of plaintiff in error for resisting an officer in the execution of process.

An execution upon a justice's judgment against Charles Hall having been issued to a constable, the officer levied upon some beans in the barn of plaintiff in error, the father of Charles, which the constable had been informed and believed were the property of the

debtor, who lived with his father on the premises. As the constable was about to remove the beans from the barn, plaintiff in error told him the beans were his and did not belong to Charles, and he bade the constable not to levy on them or remove them. The constable said he would remove them, and attempted to do so, when plaintiff in error put his hands upon the officer and excluded him from the barn, using only so much force as was necessary to prevent the removal. The evidence would have justified the jury in finding the exclusive ownership and possession of the beans to be in the plaintiff in error.

The prisoner was convicted and sentenced to pay $25 fine, and to be imprisoned until paid, not exceeding 25 days.

S. E. Filkins, for pl'ff. in error. Isaac S. Signor, Dist. Atty. for defts. in error.

Held, No error. judication on the in this State.

We find no adprecise question The decisions in

other States are conflicting. 8 Pick., 133; 8 Vt., 424; 12 Id., 437; 13 Id., 416; 17 Id., 573; 18 N. H., 34; 38 Id., 208; 3 Ohio St., 159; 4 Clark, (Iowa,) 477; 12 Alabama, 840; 4 Scam., 550. We concur in the reasoning and conclusion of State v. Downer, 8 Vt., 424, and the other concurring cases above cited.

ed.

Conviction and judgment affirm

Opinion by Smith, P. J.; Barker, J., reads for affirmance; Hardin J., concurs in result.

ASSIGNMENT FOR CREDI

TORS.

ing to do with the finances of the firm; that he did not draw any checks or pay any bills or pur

N. Y. SUPREME COURT. GENERAL chase any goods. He also testified

TERM. FIRST DEPT. Ralph H. White et al., applts. v. John J. Fagan et al., respts.

Decided Jan. 25, 1884.

The debtor who makes a general assignment for the benefit of creditors must devote all his property to the payment of his debts, except such as is by law exempt from execution.

The withholding of any considerable sum of money at the time of making the assign ment from the assignee must in some form be explained, otherwise it is sufficient to establish a fraudulent intent.

Any device to cover up the property for the benefit of the assignor, or secure to him directly or indirectly any benefit, is fraudulent, and has always received the condemnation of the courts.

Appeal from judgment of Special Term dismissing complaint.

Action brought by the judgment creditors of John J. Fagan & Co., a firm composed of John J. Fagan & William Patchell, to set aside an assignment made by that firm, Oct. 29, 1879, to Daniel J. O'Con

nor.

The proof showed that the day before the assignment was made the firm drew out of the bank where it kept its accounts $573.12, and on the day of the assignment $125. The assignee testified that the schedules filed contained all the property that came to him; that there was no money transferred to him, not a dollar, and that he never saw the check book used by the firm at the time it failed. It was not delivered to him. Patchell testified that he had noth

that Fagan paid $200 on the day the assignment was drawn to Mr. Dunning as a fee for his services. It was paid before the assignment was made. John J. Fagan testified he did not recollect whether he drew any money out of the bank the day preceding the assignment; that if he drew any he did not remember what he did with it, and that the money paid to counsel he had in his possession in the store. No explanation is given by the witnesses of the disposition made of the moneys, amounting to nearly $700, drawn from the bank just prior to the assignment.

Exception was taken to the refusal of the court to find that the act of drawing from the firm's bank account, and keeping the money aforesaid, was a fraudulent one which avoided the assignment.

J. J. Adams, for applt.

B. F. Dunning and J. L. Devinney, for respts.

Held, That, upon the testimony as it appeared, the fair presumption would be that John J. Fagan reserved and kept the money drawn from the bank on the day preceding and the day of the failure for his own personal benefit.

It was the duty of the assignor to have shown the disposition of these moneys, and to have explained how it came that so large a sum (in a small business, such as this firm carried on) was drawn

out just on the eve of the assign- | void because it is a local act emment, and none of it paid to the bracing more than one subject not assignee, but the whole apparent- expressed in the title. Const., Art. ly kept by John J. Fagan. III., § 16. The statute of 1882 is entitled, "An Act to amend Ch. 385 of the Laws of 1862, entitled,

The debtor making a general as signment must devote all his property to the payment of his debts, except such as is by law exempt from execution. Any device to cover up the property for the benefit of the assignor, or to secure to him directly or indirectly any benefit, is fraudulent, and has always received the condemnation of the courts.

In the absence of all explanation, we think the withdrawal of the money, and keeping it by one of the assignors, just on the eve of the failure, was such a fraudulent act as avoided the assignment. Judgment reversed, new trial ordered, costs to abide event. Opinion by Davis, P. J.; Daniels and Brady, JJ., concur.

CONSTITUTIONAL LAW. MU-
NICIPAL CORPORATIONS.
N Y. SUPREME COURT. GENERAL
TERM. THIRD DEPT.
Barbara Van Vranken, applt.,
v. The City of Schenectady, respt.

Decided Jan., 1884.

Provisions in regard to the power and authority of a city over its streets, containing restrictions of its liability in case of accidents from the bad condition of said streets, may properly be included or inserted by amendment in its charter without any specification of that subject in the title of the act.

Appeal from judgment upon a non-suit. The principal question arose upon Ch. 294, Laws of 1882. Plaintiff claims that this act is

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An Act to amend and consolidate the several acts relative to the city of Schenectady." It provides that the city shall not be liable for damage because a street, &c., is out of repair or obstructed with ice unless actual notice of the defective condition shall be given to the authorities at least twentyfour hours previous to such injury, &c.; also, that all claims for damages shall be made within three months and all actions be brought within a year. This action was for an injury caused by plaintiff's falling on an icy sidewalk, and it was conceded that no actual notice of the defective condition of the sidewalk had been given.

Thomson & Van Voast, for

applt.

S. W. Jackson, for respt.

Held, That the statute of 1882 was valid. The act is undoubtedly in its provisions an amendment of the Law of 1862. Therefore the title literally expresses the subject. Probably, however, we should inquire whether the title of the act which is amended expresses the subject of this amendatory act. That presents the question whether such a restriction of liability as is contained in the act of 1882 may properly be embraced under an act entitled as that of 1862. We think it may be. The liability of a city to a person injured on its streets

because the latter are out of repair must arise from some statute which has imposed upon the city a duty to keep the streets in repair. 2 Dillon Mun. Corp., 538. We are not prepared to say that if the charter of a city were silent in this respect any duty would arise upon the part of such city in regard to its streets. It seems to us clear that provisions in regard to the power and authority of a city over its streets might be properly included in its charter without any specification of that subject in the title. 2 Abb. Dec., 268; 50 N. Y., 553; 92 N. Y., 191.

Judgment affirmed, with costs. Opinion by Learned, P. J.; Boardman and Potter, JJ., con

cur.

SURROGATES. LEGACY.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

In re petition of Mary I. Hoyt et al.

Decided Dec. 21, 1883.

The Surrogate has the power, the necessary facts being shown, to make the orders authorized by SS 2717, 2718 and 2719 of the Code of Civil Procedure, decreeing payment of a legacy, or a portion thereof, as well in a case where a petition has been filed for the revocation of the probate of a will and citations have been issued thereon as in a case where the probate is final, and he is not prohibited from so doing in the former case by the provisions of § 2650 of

the Code of Civil Procedure.

Appeal from decree of Surrogate denying the prayer of the petition.

The will of the late Jesse Hoyt was admitted to probate on the 29th of August, 1882, and letters

testamentary were issued to the persons named as executors therein, who duly qualified and entered upon the discharge of their duties.

On October 3, 1882, a petition was duly filed for the revocation of said probate, and citations were thereupon issued and served upon said executors.

Subsequently a petition was duly filed pursuant to section 2719 of the Code of Civ. Pro., for an order directing the said executors to advance to the petitioners a certain sum on account of the legacies bequeathed to them under the said will, on the ground that such advance was necessary for their maintenance. The surrogate denied this petition upon the ground of lack of power to grant it, deciding that he was prohibited from so doing by $2650 of the Code of Civil Procedure, as construed in the matter of MacGowan, 28 Hun, 246.

W. D. Shipman, for applts.
Elihu Root, for respt.

Held, That by § 2672 of the Code of Civ. Pro. the surrogate is authorized to direct the payment of a legacy or a portion thereof, according to §2719, by a temporary administrator appointed in a case where the granting of letters testamentary are delayed by a contest upon the application therefor, and whose powers are substantially the same as those of an executor under § 2650 of the Code after the filing of a petition to revoke the probate and the issuance of a citation thereon; and that to hold that the surrogate is prohibited by

Dept.

Decided Feb. 5, 1884.

$2650 of the Code from authoriz- | recr., v. McCall, Supt. of Ins. ing an executor whose powers have been suspended by said section to do the same act which he can authorize a temporary administrator, having the same powers. to do would be an incongruity which it cannot be supposed that the Legislature intended to create.

That the power conferred upon the surrogate by $$ 2717, 2718 and 2719 of the Code to make an order in a case specified in said sections, directing an executor to pay a legacy, or a portion thereof. still exists after a citation to contest the will has been issued and served, and thereafter the surrogate can, in his discretion, when a petitioner complies with the requirements of said sections, make such an order, and such power is not abrogated by 2650 of the Code of Civ. Pro.

That in the matter of MacGowan (supra), the requirements of $2719 were not complied with, and the only point decided in that case was that the surrogate could not. by force of the language of $2650, make an order for the payment over to a legatee of a portion of a legacy as a mere matter either of discretionary or arbitrary

power.

Order reversed and proceedings remanded to the Surrogate's Court. Opinion by Davis, P. J.; Brady and Daniels, JJ., concur.

RECEIVERS. COMPENSATION

N. Y. COURT OF APPEALS. The People ex rel. Newcomb,

Vol. 18-No. 15.

Chap. 378, Laws of 1883, so far as it fixes the compensation of receivers, is prospective and does not apply to receivers who were appointed and entered upon the discharge of their duties before its passage.

The relator was appointed receiver of the Atlantic Mut. Life Ins. Co. under Chapter 902 of the Laws of 1869, the 13th section of which provides that the compensation of the receiver "shall be fixed by the Superintendent of the Insurance Department, and shall not exceed five per cent. on the amount of the assets of such company as shall come into his possession. On April 11, 1883, the legislature passed an act entitled "An act in relation to receivers of corporations," which provides, § 2, that a receiver shall receive as compensation for his services as such five per cent. for the first $100,000 actually received and paid out and two and one-half per cent. on all sums received and paid out in excess of said $100,000. Leslie W. Russell, for applt. N. C. Moak, for respt.

Held, That the act of 1883, so far as it fixes the compensation of receivers, is prospective in its operation, and was not intended to apply to receivers who had been appointed and had entered upon the discharge of their duties before its passage.

Order of General Term, affirming order directing a peremptory mandamus to issue to the Superintendant of Insurance, affirmed.

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