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Burr Maltice, for applt.
debtor, who lived with his father S. A. Bowen, for respt.
on the premises. As the constable Held, Error. F., though not a was about to remove the beans party, was “interested in the from the barn, plaintiff in error event.” The indemnity sought to told him the beans were his and be proved is against certain wrong. did not belong to Charles, and he ful acts which F. committed. If bade the constable not to levy on defendant is liable it is because them or remove them. The conthe acts were wrongful ; if wrong- stable said he would remove them, ful F. is liable to plaintiff and is and attempted to do so, when directly interested in having plain- plaintiff in error put his hands tiff recover against the indemnitor. upon the officer and excluded him
Judgment reversed, new trial from the barn, using only so much granted, reference
discharged, force as was necessary to prevent costs to abide event.
the removal. The evidence would Opinion by Learned, P. J.; have justified the jury in finding Boardman, J., concurs ; Potter, the exclusive ownership and posJ., dissents.
session of the beans to be in the
plaintiff in error. RESISTING OFFICER.
The prisoner was convicted and
sentenced to pay $25 fine, and to N.Y. SUPREME COURT. GENERAL be imprisoned until paid, not exTERM. FOURTH DEPT. ceeding 25 days.
S. E. Filkins, for pl’ff. in error. Ransom Hall, plff. in error, v.
Isaac S. Signor, Dist. Atty. for The People, defts. in error.
defts. in error. Decided Oct., 1883.
Held, No error. We find no ad
judication on the precise question One may not resist an officer who levies upon
The decisions in his property under an execution upon a jus in this State. tice's judgment against a third party when other States are conflicting. 8 the officer acts in good faith, believing the Pick., 133; 8 Vt., 424 ; 12 Id., property to belong to the debtor.
437; 13 Id., 416; 17 Id., 573; 18 Writ of error to Court of Ses- N. H., 34; 38 Id., 208 ; 3 Ohio sions to review a judgment and St., 159; 4 Clark, (Iowa,) 477 ; 12 conviction of plaintiff in error for Alabama, 840 ; 4 Scam., 550. We resisting an officer in the execution concur in the reasoning and conof process.
clusion of State v. Downer, 8 Vt., An execution npon a justice's 424, and the other concurring cases judgment against Charles Hall above cited. having been issued to a constable, Conviction and judgment affirmthe officer levied upon some beans ed. in the barn of plaintiff in error, Opinion by Smith, P. J.; Barthe father of Charles, which the ker, J., reads for affirmance; Harconstable had been informed and din J., concurs in result. believed were the property of the
ASSIGNMENT FOR CREDI. ing to do with the finances of the TORS.
firm; that he did not draw any
checks or pay any bills or purN. Y. SUPREME COURT. GENERAL
chase any goods. He also testified TERM. FIRST DEPT.
that Fagan paid $200 on the day Ralph H. White et al., applts. the assignment was drawn to Mr. V. John J. Fagan et al., respts.
Dunning as a fee for his services.
It was paid before the assignment Decided Jan. 25, 1884.
was made. John J. Fagan testiThe debtor who makes a general assignment
fied he did not recollect whether for the benefit of creditors must devote all he drew any money out of the his property to the payment of his debts, bank the day preceding the asexcept such as is by law exempt from exe
signment; that if he drew any cution. The withholding of any considerable sum of he did not remember what he did
money at the time of making the assign with it, and that the money paid ment from the assignee must in some form to counsel he had in his possesbe explained, otherwise it is sufficient to
sion in the store. No explanation establish a fraudulent intent. Any device to cover up the property for the
is given by the witnesses of the benefit of the assignor, or secure to him di disposition made of the moneys, rectly or indirectly any benefit, is fraudu- amounting to nearly $700, drawn lent, and has always received the condemn
from the bank just prior to the asation of the courts.
signment. Appeal from judgment of Special Exception was taken to the reTerm dismissing complaint.
fusal of the court to find that the Action brought by the judgment act of drawing from the firm's creditors of John J. Fagan & Co., bank account, and keeping the a firm composed of John J. Fagan money aforesaid, was a fraudulent & William Patchell, to set aside an one which avoided the assignassignment made by that firm, ment. Oct. 29, 1879, to Daniel J. O'Con- J. J. Adams, for applt. nor.
B. F. Dunning and J. L. DeThe proof showed that the day vinney, for respts. before the assignment was made Held, That, upon the testimony the firm drew out of the bank as it appeared, the fair presumpwhere it kept its accounts $573.12, tion wonld be that John J. Fagan and on the day of the assignment reserved and kept the money $125. The assignee testified that drawn from the bank on the day the schedules filed contained all preceding and the day of the failthe property that came to him ; ure for his own personal benefit. that there was no money transfer- It was the duty of the assignor red to him, not a dollar, and that to have shown the disposition of he never saw the check book used these moneys, and to have exby the firm at the time it failed. plained how it came that so large It was
not delivered him. a sum (in a small business, such Patchell testified that he had noth-I 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 The debtor making a general as- entitled, “An Act to amend Ch. signment must devote all his prop. 385 of the Laws of 1862, entitled, erty to the payment of his debts, 'An Act to amend and consolidate except such as is by law exempt the several acts relative to the city from execution. Any device to of Schenectady.'' It provides cover up the property for the bene- that the city shall not be liable for fit of the assignor, or to secure to damage because a street, &c., is him directly or indirectly any out of repair or obstructed with benefit, is fraudulent, and has al. ice unless actual notice of the deways received the condemnation of fective condition shall be given to the courts.
the authorities at least twentyIn the absence of all explana- four hours previous to such intion, we think the withdrawal of jury, &c.; also, that all claims for the money, and keeping it by one damages shall be made within of the assignors, just on the eve of three months and all actions be the failure, was such a fraudulent brought within a year. This acact as avoided the assignment.
tion was for an injury caused by Judgment reversed, new trial plaintiff's falling on an icy sideordered, costs to abide event. walk, and it was conceded that no
Opinion by Davis, P. J.; Dan- actual notice of the defective coniels and Brady, JJ., concur.
dition of the sidewalk had been
given. CONSTITUTIONAL LAW. MU.
Thomson & Van Voast, for NICIPAL CORPORATIONS.
S. W. Jackson, for respt. N Y SUPREME COURT. GENERAL
Held, That the statute of 1882 TERM. THIRD DEPT.
was valid. The act is undoubtBarbara Van Vranken, applt., edly in its provisions an amend- . v. The City of Schenectady, respt. ment of the Law of 1862. Therefore Decided Jan., 1884.
the title literally expresses the
subject. Probably, however, we Provisions in regard to the power and author
should inquire whether the title of ity of a city over its streets, containing restrictions of its liability in case of accidents
the act which is amended expresses from the bad condition of said streets, may the subject of this amendatory act. properly be included or inserted by amend. That presents the question whether ment in its charter without any specification such a restriction of liability as is of that subject in the title of the act.
contained in the act of 1882 may Appeal from judgment upon a properly be embraced under an act non-suit. The principal question entitled as that of 1862. We think arose upon Ch. 294, Laws of 1882. it may be. The liability of a city Plaintiff claims that this act is to a person injured on its streets
because the latter are out of re- | testamentary were issued to the pair must arise from some statute persons named as executors therewhich has imposed upon the city in, who duly qualified and entered a duty to keep the streets in re- upon the discharge of their duties. pair. 2 Dillon Mun. Corp., 538. On October 3, 1882, a petition We are not prepared to say that if was duly filed for the revocation the charter of a city were silent in of said probate, and citations were this respect any duty would arise thereupon issued and served upon upon the part of such city in re- said executors. gard to its streets. It seems to us Subsequently a petition was clear that provisions in regard to duly filed pursuant to section 2719 the power and authority of a city of the Code of Civ. Pro., for an over its streets might be properly order directing the said executors included in its charter without to advance to the petitioners a any specification of that subject in certain sum
certain sum on account of the the title. 2 Abb. Dec., 268; 50 legacies bequeathed to them under N. Y., 553 ; 92 N. Y., 191.
the said will, on the ground that Judgment affirmed, with costs. such advance was necessary for
Opinion by Learned, P. J.; their maintenance. The surrogate Boardman and Potter, JJ., con denied this petition
ground of lack of power to grant
it, deciding that he was prohibited SURROGATES. LEGACY. from so doing by $ 2650 of the
Code of Civil Procedure, as conN. Y. SUPREME COURT. GENERAL strued in the matter of MacGowan, TERM. FIRST DEPT.
28 Hun, 246. In re petition of Mary I. Hoyt
W. D. Shipman, for applts. et al.
Elihu Root, for respt. Decided Dec. 21, 1883.
Held, That by $ 2672 of the Code The Surrogate has the power, the necessary of Civ. Pro. the surrogate is au
facts being shown, to make the orders authorized by ss 2717, 2718 and 2719 of the thorized to direct the payment of Code of Civil Procedure, decreeing pay.
a legacy or a portion thereof, acment of a legacy, or a portion thereof, as cording to $2719, by a temporary well in a case where a petition has been administrator appointed in a case filed for the revocation of the probate of a
where the granting of letters tes. will and citations have been issued thereon as in a case where the probate is final, and tamentary are delayed by a contest he is not prohibited from so doing in the upon the application therefor, and former case by the provisions of g 2650 of whose powers are substantially the Code of Civil Procedure.
the same as those of an executor Appeal from decree of Surrogate under $ 2650 of the Code after the denying the prayer of the petition. filing of a petition to revoke the
The will of the late Jesse Hoyt probate and the issuance of a citawas admitted to probate on the tion thereon; and that to hold 29th of August, 1882, and letters that the surrogate is prohibited by
$2650 of the Code from authoriz- recr., v. McCall, Supt. of Ins. ing an executor whose powers have Dept. been suspended by said section to
Decided Feb. 5, 1884. do the same act which he can all
Chap. 378, Laws of 1883, so far as it fixes thorize a temporary administrator,
the compensation of receivers, is prospective having the same powers, to do and does not apply to receivers who were would be an incongruity which it appointed and entered upon the discharge
of their duties before its passage. cannot be supposed that the Leg. islature intended to create.
The relator was appointed reThat the power conferred upon ceiver of the Atlantic Mut. Life the surrogate by SS 2717, 2718 and Ins. Co. under Chapter 902 of the 2719 of the Code to make Jaws of 1869, the 13th section of order in a case specified in said which provides that the compensections, directing an executor to sation of the receiver “shall be pay a legacy, or a portion thereof. fixed by the Superintendent of the still exists after a citation to con- | Insurance Department, and shall test the will has been issued and not exceed five per cent. on the served, and thereafter the surro) - amount of the assets of such comgate can, in his discretion, when a pany as shall come into his pospetitioner complies with the re- session. On April 11, 1883, the quirements of said sections, make legislature passed an act entitled such an order, and such power is "An act in relation to receivers of not abrogated by $ 2650 of the corporations,” which provides, $ 2, Code of Civ. Pro.
that a receiver shall receive as That in the matter of MacGowan compensation for his services as (supra), the requirements of such five per cent. for the first
not complied with, $100,000 actually received and and the only point decided in that paid out and two and one-half por case was that the surrogate could cent. on all sums received and nor, by force of the language of paid out in excess of said $100,000. $ 2650, make an order for the pay
Leslie W. Russell, for applt. ment over to a legatee of a portion
N. C. Moak, for respt. of a legacy as a mere matter either of discretionary or arbitrary
Held, That the act of 1883, so power.
far as it fixes the compensation of Order reversed and proceedings receivers, is prospective in its operemanded to the Surrogate's Court. ration, and was not intended to
Opinion by Davis, P.J.; Brady apply to receivers who had been and Daniels, JJ., concur.
appointed and had entered upon the discharge of their duties be.
fore its passage. RECEIVERS. COMPENSATION Order of General Term, affirm
ing order directing a peremptory N. Y. COURT OF APPEALS.
mandamus to issue to the SuperThe People ex rel. Newcomb, intendant of Insurance, affirmed.
Vol. 18-No. 16.