DIVORCE. PROVISION FOR CHILDREN. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. For several years defendant's mother furnished plaintiff an income for her support, and after that declined to pay anything further. In an action brought by Marian G. Catlin, applt., v. Wil- the child of the marriage for a liam H. Catlin, respt. Decided Jan. 25, 1884. The provisions of 2 R. S., 148, § 59, conferring upon this court jurisdiction to make such order as between the parties to a divorce suit, even after judgment, for the custody, care and education of the children of the marriage as the occasion may require, are not repealed by Chap. 245, Laws of 1880, as to actions of divorce theretofore deter mined, as appears by sub. 2 of $3 of the Act of 1880, although otherwise repealed. This court has jurisdiction, therefore, after a decree of divorce, made in June, 1874, and prior to said Act of 1880, making no provision for the education of the child of the marriage, to direct that defendant, the father, make suitable pecuniary provision for the education of the child of the marriage, although the court by the final decree has lost jurisdiction to modify the decree of divorce for the wife's benefit. Appeal from order of Special Term, denying plaintiff's application for a provision for the maintenance and education of Mary B. Catlin, an infant. The parties to the suit were divorced by a decree of this court in 1874. By reason of the agreement of defendant's mother to deed certain lands to trustees, the income from which should be appropriated to plaintiff's and her daughter's support equally, no provision for plaintiff's alimony in the decree of divorce was made, and plaintiff consented that defen dant might be absolved from the payment of alimony by the decree, on the faith of the agreement of defendant's mother. specific performance of the agreement of the mother to convey to trustees certain property, &c., such agreement was held to be nudum pactum for want of privity and consideration and the relief sought was denied. Plaintiff has since married, and upon allegations showing an ur gent necessity therefor, petitioned this court on behalf of her child for an order that defendant pay to the petitioner a sum sufficient for the maintenance and education of the daughter of the marriage. This application was denied. D. R. Jacques, for applt. Thomas M. North, for respt. Held, Error; that by the provisions of 2 R. S., 148, § 59, this court has jurisdiction to grant the application, although after the final decree of divorce; that said § 59 was not repealed by Chap. 245, Laws of 1880, as to actions of divorce theretofore determined, although otherwise repealed, sub. 29, 3, of the Act of 1880, supra: that so far as this action is concerned said § 59 is in force. This is not an application by the wife, after decree of divorce, asking a modification thereof for her own benefit, and hence the cases cited in 59 N. Y., 212; 28 Hun, 200; 18 W. Dig., 27, holding the court has lost jurisdiction for such purpose, are not in point. The application is a meritorious | duly authenticated. Such certifi one. Order reversed and reference ordered to determine a suitable amount which defendant should be required to pay, and whether, and if so how, its payment should be secured, with $10 costs and disbursements to plaintiff. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. NOTARY PUBLIC. PROTEST. William T. Kellum, applt., v. Decided Jan., 1884. A Notary Public may issue several certificates of protest, each of which shall be an original and competent as evidence. Section 923 of Code Civ. Pro. does not forbid such construction. Appeal from judgment of County Court, dismissing plaintiff's complaint with costs. The action was brought to recover from defendant as endorser the amount of a lost promissory note. cate is offered in evidence against defendant and endorser, who objects to it (1st), because it is not the certificate made by the Notary at the time of the protest, and (2d), because it does not appear that the Notary is dead or absent from the State so that his attendance cannot be procured. The objections were sustained and plaintiff excepted. Plaintiff could not establish the liability of defendant by reason of the exclusion of such evidence and the complaint was dismissed with costs. John F. Anderson, for applt. Lewis E. Carr, for respt. Held, Error. No reason can be assigned why a Notary may not issue several certificates of protest, each of which shall be an original and competent as evidence. The language of the Code, § 923, does not forbid such construction. The reason of the law is sustained by such construction. Numerous illustrations might be given when official power is not exhausted when an act is once done. Certificates of Sheriffs, To make proof of the pre- County Clerks, Judges, &c., are sentment of the note in question made evidence. But the loss of for payment, of protest for non- one certificate does not bar the payment and of service of notice officer giving a second, and the thereof on the defendant, the plain- second is of equal force with the tiff offered in evidence a certificate former. There is no limit in this of protest given by M., a Notary State when such certificate may be Public of this State, for purposes made. Cowen, J., says in Cayuga of evidence under § 923 of Code Co. Bk. v. Hunt, 2 Hill, 638, Civ. Pro. The first certificate of It is no objection that the cerprotest was attached to and lost tificate was drawn up by the Nowith the note sued upon. A sec- tary two years, or any other length ond certificate of protest was pro- of time after notice was given. The cured from the Notary Public and statute gives it as a substitute for An order directing the payment of alimony by the husband to the wife cannot be made after the entry of a decree of separation making no provision therefor; but provision for the support of children may be made. Appeal from order denying plaintiff's motion for decree on report of referee allowing her a gross sum of $1,200 per year from her husband for the support of herself and her three minor children, the care and custody of whom were awarded to her by a was made in 1879, and a reference to take proof was thereupon ordered. Upon the return of the referee's report, there being no separate findings as to the amount which should be allowed to the wife and to the children, the defendant's objections to the jurisdiction of the Court were sus tained. J. A. Welsh, for applt. Held, That the Court had jurisdiction of the motion, so far as the allowance for the support of the children is involved. 2 R. S, 148, § 59. Further held, That the reasoning of the Court of Appeals in Kamp v. Kamp, 59 N. Y., 212, denying the jurisdiction of the Court to order alimony after the entry of a decree of divorce making no provision therefor, applies equally to an action for separation. Order modified by denying motion to confirm report as to allowance of alimony to plaintiff, and referring petition to ascertain and report suitable allowance to plaintiff for care, etc., of children. No costs. Opinion by J. F. Daly, J.; Van Brunt, J., concurs; Daly, Ch. J., dissents, following the reasoning of Grover, J., in dissenting opinion Kamp v. Kamp. FRAUD. decree of separation between her N. Y. SUPREME COURT. GENERAL and her husband entered in 1869. No provision for alimony or for the support of the children was made in the decree. This motion TERM. FIRST DEPT. Martha W. Leach, applt., v. James A. Flack et al., respts. Decided Jan. 25, 1884. The title of a purchaser of personal property for a valuable consideration cannot be defeated by the circumstance that the property purchased was allowed to remain in the possession of the vendor, even though it was the intention of the vendor in mak ing the sale to hinder, delay and defraud his creditors, unless such purchaser had previous notice of the fraudulent intent of his grantor. Appeal from judgment dismissing complaint, recovered on the report of a referee. Edward Van Ness, for applt. Vanderpoel, Green & Cumming, for respts. Held, That the learned referee misapprehended the effect of the statute, for it was further provided in the general provisions of that statute that the chapter containing the section referred to should not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, such as plaintiff's was, 81 N. Y., 218, 223-6, unless it should appear that such purchaser had previous notice of the fraudulent intent of his grantor, 3 R. S., 6th ed., 146, § 5, and under the force and effect of this section plaintiff's title to the property could not be defeated by the mere circumstance that the person from whom she acquired it intended to hinder, delay or defraud his creditors. 61 N. Y., 626. Judgment reversed and new trial Henry A. Leach, being indebted to plaintiff for money loaned and for which she held his promissory note, made a bill of sale of certain personal property to her, which she accepted as a satisfaction of the debt, and surrendered the note to him. She, thereupon, leased the property to him. Subsequently this property was seized under an attachment issued in an action against Henry A. Leach, and afterwards sold under an execution issued upon the judgment recovered in the action. This action was brought against the sheriff to recover the value of the property so sold. The action was tried before ACCOUNTING. a referee, who held that the sale from Henry A. Leach to plaintiff was fraudulent and void as against his creditors under the statute, 3 R. S., 6th ed., 143, § 5, on account of his continued possession, and he dismissed the complaint for that reason, although he found that plaintiff was no party to the fraud and received the bill of sale without notice of Leach's embarrassment in business and without any intention to hinder, delay or defraud the creditors of her vendor. EXECUTORS. N. Y. COURT OF APPEALS. In re application for final accounting of Macaulay, exr. Decided Feb. 5, 1884. A verification to a petition which states that petitioner knows the contents thereof and that the same are true is sufficient. A citation was issued returnable in less than six weeks. The order for service provided for service on non-residents either personally without the state or by publication. Held, That a personal service without the state thirty days before the return day was sufficient. Where, upon an application by a legatee for a final accounting, the answer of the executor does not deny the material allegations of the petition or deny the petitioner's rights or set up facts rendering them doubtful, the case is not within subd. 1, § 2718 of the Code. An objection to such an application on the ground that it is not shown that there is money or other property applicable to the payment of the legacy is premature. Affirming S. C., 15 W. Dig., 519. The petition for the executor to account showed that more than one year had elapsed since letters testamentary were issued; that the executor as such had received property of the testator and that the petitioner was interested in the estate. The petitioner in her verification to the petition declares that she knows the contents" of the petition, "and that the same are true." Charles M. Hall, for applt. Held, That the verification was sufficient; that the language used was equivalent to saying that the contents of the petition are true to her (the petitioner's) knowledge. The order for service of the citation directed that it should be served upon non-residents either personally without the state or by publication. The service was made personally in New Jersey thirty days before the return day. It appeared that less than six weeks could intervene between the day of issue and the day named for the return of the citation. Held, That service of the citation was sufficient, personal service having been resorted to. The executor's answer did not deny the allegations of the peti tioner that his testator's will gave a legacy to her intestate, that assets had come into his hands as executor and that the legacy was not paid, nor did it state any facts that made it doubtful whether the petitioner's claim was valid or legal. It set out the death of the legatee and averred that the legacy belongs to and is payable to the administratrix. Held, That the case was not within subdivision 1 of § 2718 of the Code of Civil Procedure and should not have been dismissed. It was claimed that the petition should have been dismissed be cause it was not shown that there was money or other personal property applicable to the payment of the legacy. Held, That this objection is premature; that although the surrogate entertained the petition he was only bound "to make such a decree in the premises as justice requires," and if he finds there are not in the executor's hands assets applicable to the payment or satisfaction of the petitioner's claim, under the conditions of § 2718 it may be his duty to dismiss the petition. Order of General Term, affirming order of surrogate, affirmed. Opinion by Danforth, J. All concur. MARINE INSURANCE. N. Y. COURT OF APPEALS. Snyder et al.. exrs., respts., v. The Atlantic Mutual Ins. Co., applt. Decided Feb. 26, 1884. |