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Opinion by Earl, J. All con
the commissioner who took the cur.
testimony ceased to hold the office.
The Board, notwithstanding, POLICE.
proceeded to act upon the evidence N. Y. SUPREME COURT. GENERAL taken by the former commisTERM. FIRST DEPT.
sioner, and removed the rela
tors. The People ex rel. Lawrence
The court below reversed Tallon, respt., v. The Board of the action of the commissioners Police Commissioners.
upon the ground that the Board The People ex rel. Mohr V.
could not act upon the evidence The same.
taken before a former commis
sioner after his official relations Decided Dec. 21, 1883.
with the Board had terminated.
G. P. Andrews and S. G. MCAn investigation upon charges made against
a member of the police force was had, Nary, for applt. and the evidence taken under the rules D. A. Levien, for relators. of the Department before one commis- Held, That the Board of Police sioner, who before the final action of the Cominissioners is not ousted of Board on the evidence ceased to be a member of the Board. Held, That the jurisdiction, where testimony is Board was not ousted of jurisdiction by taken by one of their number for the termination of the office of the Com
the purpose of being laid before missioner who took the evidence ; that
the whole Board for its examina under their rules and the statute they could properly act upon such evidence taken tion and decision, by the accident before a former member of the Board, and of his death or the intermediate that their removal of the police officer determination of his office. thereon was proper.
That the Board could properly The question of the right of the accused to counsel in investigations upon charges
act upon the evidence taken before against the police force before the New the former commissioner after his York Board of Police Commissioners is official relations with the Board one addressed to the discretion of that
had ceased. body.
The Board of Commissioners Appeals from orders of Special does not constitute a court, and Term, reversing on certiorari the its proceedings should not be condecision of the Commissioners of trolled or decided by the same Police removing the relators. degree of formality that would be
Charges were made against the required upon a charge of a crimirelators before the Board of Police nal offence before ordinary tribu Commissioners, and the accused nals of justice. 17 W. Dig., 281. were notified and an investigation Mohr case, 27 Hun, 462, reversed, of the charges were had before one and Gilhooly case, 23 Hun, 353, of the Commissioners, who took followed. the evidence by question and an- It is within the discretion of ibe swer. Before final action by the Board to allow the accused counsel Board upon the evidence taken on the investigation.
during the existence of said patent Opinion by Davis, P. J.; for the sum of $10,250, payable as Brady and Daniels, JJ., concur follows: Five thousand dollars in result.
in cash on the delivery and exe
cution of proper and suitable conCONTRACT. CONDITION PRE- veyances, balance within one year CEDENT.
in cash, with interest at seven per
cent. N. Y. SUPREME COURT. GENERAL
“It is also agreed that Jacob TERM. FIRST DEPT.
Lorillard shall advance a sum not Napoleon C. Hubbell, applt.,
exceeding five thousand dollars v. Jacob Lorillard, respt.
for the usual necessary expenses
of taking out and introducing said Decided Dec. 21, 1883.
foreign patents. Where by the terms of a contract of sale de
JACOB LORILLARD. fendant agreed to pay plaintiff $5,000 of
* NAPOLEON C. HUBBELL. the purchase money on the execution and delivery of conveyances of plaintiff's half
• Wituess, interest in certain foreign patents, and the "JAMES B. PRATT." balance within one year, the inaking by defendant of the first payment without in.
Defendant made the first pay. sisting on the delivery of the conveyances ment of $5,000 without insisting does not preclude him from insisting on the
on the execution and delivery of provisions of the agreement giving bim one year from the execution and delivery
the conveyances provided for by of the conveyances before the maturity of the agreement. the first payment, and suit brought in less This action was brought for the than one year from the tender of the con
$5,250, and interest, the final pay. veyances for final payment is prematurely brought.
ment, defendant having com-
of Appeal from judgment recov- the last clause of the agreeered on trial at Circuit, dismissing ment, and was brought within less complaint.
than one year from the tender of Action for the recovery of the the conveyance referred to in the last payment mentioned in the
agreement. The complaint was following agreement:
dismissed on the ground that the New York, Dec. 13, 1876. action was prematurely brought. It is hereby this day agreed
N. B. Hoxie, for applt. by and between Jacob Lorillard, N. C. Hubbell, as follows: That
A. B. Gardner and R. L. Read, said Hubbell sells Jacob Lorillard for respt. one thousand shares of the stock Held, No error ; that by the of the Hubbell Screw Company, terms of the contract defendant together with his interests therein. had one year from the time the Also a one-half interest in any all first payment natured before foreign patents or privileges he the balance became due; that may have now, or at any time by omitting to insist upon the
delivery of the conveyance, before An application for a sale of the making the first payment defend real estate of J., deceased, was deant was not precluded from avail. nied by the surrogate on the ground ing himself of the provisions of that the claim on which the prothe contract which gave him a ceedings were instituted was barred year after the first payment ma- | by the statute of limitations. The tured to make the second pay. claim was due February 11, 1871. ment. 1 Seld., 247.
J. died March 19, 1871. Letters Defendant did nothing showing of administration were granted an intention to waive the perform April 14, 1871. The proceedings ance by plaintiff of the conditions in question were commenced Febprecedent to plaintiff's right to ruary 6, 1880. The administrators the final payment.
accounted October 17, 1877, and The suit having been brought the petitioner received $355 on acfor the final payment in less than count of his claim, his share of the a year from the time of the exe- personal estate. cution and delivery of the convey. M. L. Cobb, for applts. ances, was prematurely brought J. T. Marean, for respt. and the complaint, therefore, was Held, That the proceeding for properly dismissed.
the sale of the real estate could not Judgment afiii med.
be commenced until after the acOpinion by Daniels, J.; Davis, counting by the administrators; P. J., and Brady, J., concur.
that as the limitation within which an action could have been com
menced upon the plaintiff's claim LIMITATION. SALE OF DE- was six years, the statute bad not CEDENT'S REAL ESTATE. so l'un as to constitute a bar.
The term of eighteen months N. Y. COURT OF APPEALS. after the death of a testator or inMead, respt., v. Jenkins et al.,
testate is not a part of the time
limited for the commencement of applls.
an action against the executor or Decided Feb. 8, 1884.
The creditors could not have Creditors cannot compel an accounting by an compelled an accounting until
executor uniil cigliteen months after the granting of letters, and proceedings to sell eighteen months after the granting real estate to pay debts cannot be instituted of letters, and proceedings to sell until after such linie as may be actually real estate to pay debts could not consumed in compelling an accounting.
be instituted until after such time A claim was due in February, 1871; debtor died in March, 18il, and admin
as might be actually consumed in istrators were appointed in April, 1871, compelling an accounting. who accounted in October, 1877. The proceedings bere baving proceeding to sell the real estate to pay been stayed by statutory prohithe claim was begun in February, 1880. Held, That it was not barred by the
bition, the time of the continuance of the stay was not a part of the
time limited for the commencement Franklin Pierce, for applt. of the saine.
Code of Civil Proc., F. A. Lyman, for respts. $ 406.
Held, That the power to appoint Order of General Term, revers- such receiver existed, 4 Edw. Ch., ing decree of surrogate denying 412; Code of 1848, § 244 ; that this application, affirmed.
power was not abrogated by the Per curiam opinion. All con provisions of section 713 of the
Code of Civil Procedure; that the
language of said section is not proRECEIVERS. FORECLOSURE. hibitory or exclusive, but permis
sive and declaratory, and although N. Y. COURT OF APPEALS.
it does not, in terms, re-enact subd. Hollenbeck et al., respts., v.
5, of section 244 of the Code of Donell, applt.
Procedure, an analagous provis
ion is substantially included in Decided Jan. 15, 1884.
the general terms of section 4 of The power of the court to appoint a receiver
the Code of Civil Procedure, which of rents and profits in foreclosure cases was provides that each of the courts not abrogated by $ 713, Code Civ. Proc., therein mentioned, including the but still exists.
Supreme Court, "shall continue Where only a portion of the mortgage debt is due and premises consist of a farm divided
to exercise the jurisdiction and into equal parts which can be sold sep- powers now vested in it by law, arately, a receiver of the whole farm according to the course and pracshould not be appointed.
tice of the court, except as otherReversing S. C., 17 W. Dig., 10.
wise prescribed in this act.” The This action was brought for the power to appoint receivers in mortforeclosure of a mortgage which gage cases was inherent in the was given for the purchase price Court of Chancery before the Code of certain premises. No bond ac- of 1848. companied the mortgage, and the
When default has been made in rents and profits were not specifi. the condition of the mortgage the cally pledged. The action mortgagee at once becomes entitled commenced May 29, 1882, by ser- to a foreclosure of the mortgage vice of a summons, complaint, and a sale of the mortgaged prempetition, affidavits, order and ises, and on general principles of notice of a notion for the appoint. equity the court may make the ment of a receiver of the rents and decree, when obtained, relate back profits of the mortgaged premises. to the time of the commencement On June 3d, 1882, a receiver of the of the action, and where necessary premises was appointed. The for the security of the mortgage grounds upon which the appoint- debt may appoint a receiver of the ment was asked were that the rents and profits accruing in the premises were inadequate security meantime, thus anticipating the and that the mortgagor was not decree and sale. 5 Paige, 40 ; 3 liable for the deficiency.
Sandf. Ch., 69; 4 id., 405.
It appeared that when this action | this State, and was at the time of was brought only a portion of the his death possessed of personal mortgage was due; that the mort.
property within this State ; that gaged premises consisted of a farm | plaintiff is a legatee under the will divided about in the centre by a of D. ; that prior to his death, and public highway, and that either of
on or about January 28th, 1880, the parts could be sold separately. D., at the city of Cadiz, duly The receiver appointed was for the signed, published, declared and rents and profits of the whole executed before a notary, in the farm.
presence of and with three other Held, That the appointment of witnesses, his last will and te a receiver of the whole farm was ment, and that on May 1, 1881, beunwarranted.
fore the same notary and the same Order of General Term, affirm three witnesses, D. also signed, ing order appointing receiver, re- published, declared and executed versed.
a codicil thereto. A copy of the Opinion by Rapallo, J. All will and codicil were annexed to
and made a part of the complaint.
They were both written in Spanish WILLS.
and were duly executed according
to the laws of Spain, and are on N. Y. COURT OF APPEALS.
file among the archives of the noYounger, respt.,v. Duffie, impla, tary's office at Cadiz, and cannot, applt.
under the laws of Spain, be taken
for any purpose. The disposing Decided Jan. 29, 1884.
part of the will is divided into The will in question was executed and is on
seven paragraphs, and between the file in Cadiz, Spain, and cannot be taken end of the last one and the testatherefrom. The testimonium clause is tor's signature is a testimonium followed by the language of the notary as clause, and following this the lanto the mode of execution, at the end of which are the signatures of the testator,
guage of the notary reciting the witnesses and noiary. Wed, That Wis was
mode of execution, and the names a subscription at the end of the will and of the witnesses, and the fact that that this was a case within S 1861 of the
the will was read to all of them ; Code.
then follows the signatures of the Affirming S. C., 16 W. Dig., 53.
testator, the three subscribing witThis action was brought under nesses and the notary. section 1861 of the Code of Civil John N. Lewis, for applt. Procedure, to procure a judginent Emmet R. Olcott, for respt. establishing an instrument as the Held, That the subscription of last will and testament of one 1). the will by the testator was a subThe complaint alleged that D., scription at the end of the will, while temporarily residing in Ca- and the will was proveable in the diz, Spain, on November 8, 1880), Surrogate's Court of Richmond died ; that D. was domiciled in County but for the fact that it