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and award pecuniary damages at the suit of a party injured and in an action by the People.

they have taken that course and in good faith have adopted the valuation complained of, as long In an action to compel the removal of an un

as no legal principle was violated in doing so, this court should not interfere for the reversal of their proceedings.

That the case, as it was presented to the commissioners and also as it appeared before the Special Term, was simply as to the effect which should be given to the evidence that was produced. No legal error intervened in prescribing the valuations that were made, but they were graduated by what seemed to be the fair and reasonable effect of all the evidence upon which the action of the Commissioners was authorized to be taken; and, when that appears to be the case, and the only ground of complaint is that the force and effect of the evidence has not been accurately measured, an appellate court should be exceedingly reluctant to interfere, and, in that manner, to derange and disturb the system adopted and pursued in the assessments. 48 N. Y., 390.

Order affirmed.

lawful obstruction in a public street, which consisted of defendant's erecting telegraph poles of larger size and higher than the statute permitted, and to recover damages for such obstruction, the jury found a verdict for nominal damages. Held, That in the absence of any special findings the court could not award judgment directing the removal of the poles, or any judgment other than for damages found by the jury and costs.

A complaint at the suit of the people which alleges facts showing that certain telegraph poles erected by defendant had been improperly erected in the street in the city of New York and incommoded and interfered with its use as a public highway states a cause of action for damages and also for the abatement and removal of the poles constituting such obstruction.

Such a cause of action is properly triable at circuit, it being in the nature of one to abate a nuisance, which has been held to be triable at circuit. But defendant having removed the cause to circuit by his own motion will not on appeal be heard to complain.

Appeal from a judgment recov ered on a verdict of a jury at circuit.

In this action to recover judgment for damages by reason of de

Opinion by Daniels, J.; Brady, fendant's erecting larger and J., concurs.

NUISANCE.

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

The People, respts., v. The Me. tropolitan Telephone & Telegraph Co., applt.

Decided Jan. 25, 1884.

A court of equity has jurisdiction to remove an unlawful obstruction in a public street Vol. 18.-No. 20.

higher posts than by law it was allowed and thereby obstructing Twenty-first street, New York City, between Fifth and Sixth avenues, and also to recover judgment restraining defendants from stringing wires on such poles and for the removal of the poles as a nuisance and unlawful obstruction to the street, a verdict for nominal damages was rendered on the trial at circuit, to which the cause was sent for trial on defend

ant's motion, having in the first place been placed on the Special Term calendar, and upon such verdict judgment was rendered and entered for six cents damages and costs and also judgment adjudging the poles referred to to be a nuisance and directing their re moval within a brief period specified. There were no special findings by the jury, and the only question submitted to the jury was as to whether plaintiff had suffered any damage by reason of defendant's having erected larger and higher poles than were necessary and authorized by the statute conferring upon it authority to erect poles necessary for its uses in the street where the erections were complained of.

Burton L. Harrison, for applt. L. E. Chittenden, for respts. Held, That upon the verdict as found the court cannot say that either or all the poles in the street were an unlawful obstruction. The company had authority by statute to erect poles necessary for its uses, and this case was submitted to the jury upon conflicting testimony as to whether the poles were not

ceeded the necessary bounds prescribed by the statute. The ver dict cannot be construed to mean that the erection of telegraph poles in the street was unlawful, for the statute authorized it, and by the verdict there is nothing sufficient to support any other judgment except for the nominal damages awarded and costs. A Court of Equity will not interfere to remedy a mere theoretical or technical injury to land. There must be substantial injury to require relief from a Court of Equity. It only intervenes to prevent irreparable injuries or to avoid multiplicity of suits. Hilliard on Injunctions, 270; 19 Eng. Law & Eq., 639; 3 Wait's Actions and Defenses, 379.

Judgment affirmed in so far as it awards nominal damages and costs, and so far as it extends beyond awarding nominal damages and costs reversed, without costs to either party.

Opinion by Daniels, J.; Davis, P. J., and Daniels, J., concur.

TAXES. MINISTERS.

EXEMPTION.

TERM. FOURTH DEPT.

The People on petition of Alex. M. Mann, respts., v. The Assessors of the Town of Covert, applts.

larger and higher than necessary, N. Y. SUPREME COURT. GENERAL as was proper, for insomuch as they were higher and larger than necessary for the defendant's uses they constituted an unlawful obstruction, and the jury found nominal damages. But to authorize the court to award judgment removing the poles as an obstruction, as was done in this case, there should have been a special finding or findings showing which of the poles and to what extent they ex

Decided Jan., 1884.

A minister who is disqualified for active duty by age and infirmity is nevertheless entitled to his exemption from assessment. So long as assessors try diligently to discharge

their duties they should not be visited with costs for mere error of judgment.

Appeal from Special Term order | disqualified for active duty by age made on return of a certiorari to and infirmity. review an assessment made by appellants against petitioner.

It is not necessary for the petitioner to show that he occupied his real estate. The case is governed by 1 R. S., 388, § 5.

Under section 6 of the Act under which this proceeding was had public officers acting within their jurisdiction ought not to be charged with costs unless their dereliction is clear.

People ex rel. Raplee v. Reddy, 43 Barb., 539, and People ex rel. Thurman v. Ryan, SS N. Y., 142, considered.

That part of the order which charges appellants with costs reversed, and the rest of the order affirmed, without costs of appeal to either party.

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

The assessors refused petitioner's claim of the statutory exemption of $1,500 given to a minister of the Gospel. So petitioner sued out a writ of certiorari under chapter 269, laws of 1880, and on its return the Special Term ordered a reference, and the referee reported the testimony taken by him with his opinion that petitioner was a minister of the gospel at the time of the assessment, and was entitled to the exemption claimed, and that appellants in refusing the same acted in good faith and not with gross negli gence or malice. The Special Term ordered the assessment reduced by $1,500, and that petitioner recover from defendants costs of the proceeding. From that order defendants appeal. The evidence shows, without dispute, that petioner was a minister in good standing in his N. Y. SUPREME COURT. GENERAL denomination at the time of the assessment, and had been such since 1830. By reason of old age and its infirmities, he had for fifteen years ceased active professional duties, but had all that time occasionally performed them. He had no secular occupation. The real estate, for which alone petitioner is assessed, is worth $4,800. F. L. Manning, for applts. W. V. Bruyn, for respts. Held, That petitioner being a minister, and engaged in no other calling, he was entitled to the exemption notwithstanding he was

MARRIED WOMEN. PARTY.
FORECLOSURE. .

TERM. SECOND DEPT.

The Trustees of Jones Fund v. Philip Roth.

Decided Dec., 1883.

It is not necessary to make the husband a party to a foreclosure of a mortgage executed by the husband and wife upon property the title to which was in the wife at the time of executing such mortgage, to make a valid title.

This action was brought to foreclose a mortgage executed by the husband and wife upon property belonging to the wife. Subsequent to the execution of the mortgage the wife conveyed the property to

a third party, and before the foreclosure action the same was reconveyed to her. The husband was not made a party to the foreclosure action, and the principal question presented is whether a good title can be given and whether the purchaser is bound to take title.

Held, That a married woman who owns lands in her own right may convey the same without joining her husband with her in the deed, and that by such deed any prospective tenancy by the curtesy is cut off. The wife also has power to mortgage her real and personal estate with like effect as if she was a single woman. By the mortgage in this case given by the wife and her husband the title was encumbered because of the wife's signature to it and was not

quent conveyance by the wife and the reconveyance to her does not affect the question. The wife put a deed upon record and the grantee refused to take it. This refusal was evidenced by a deed of release reciting the refusal to accept This deed was acknowledged before a notary public in fact. The certificate of the clerk is defective so that the notary's certificate is not sufficient to record the deed. The title is not affected by this omission. The fact of the genuineness of the deed is admitted.

Judgment for plaintiff upon submitted case.

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

ATTACHMENT.

affected by the act of the husband N. Y. SUPREME COURT. GENERAL

joining therein. His prospective rights would be cut off by the foreclosure equally whether he signed it or not. It did neither good nor harm that he joined with his wife in the mortgage. No notice to him as mortgagor was required by was required by Chap. 346, Laws of 1844. The mortgagor who is entitled to be notified by that act is the owner of the fee who executed the mortgage and not a merely nominal mortgagor. If there were a vested remainder in fee in the husband which could not be cut off without notice the case presented would be a different one. The mortgage given by the wife, who had absolute power to convey without her husband, with the foreclosure

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TERM. SECOND DEPT.

David Davis, respt., v. Thomas M. Fleming, applt.

Decided Dec., 1883.

An affidavit for an attachment in a justice's

court, wherein it is positively sworn that the defendant was about to leave the county of his residence with intent to defraud his creditors, and in proof of which the affiant states he heard the defendant say to one Irving that he intended "during the night getting away out of the county with his horses and all his hops," is sufficient to give jurisdiction, without the creditor's stating that there was no other property of the debtor.

Appeal from a judgment in favor of plaintiff.

The facts sufficiently appear in the opinion.

W. J. Gaynor, for respt.
J. Troy, for applt.

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ORS. ACKNOWLEDGMENT.

N. Y. COMMON PLEAS. GENERAL

TERM.

John G. Smith, applt., v. Thomas Boyd et al., respts.

Decided Jan. 21, 1884.

*

*

The certificate of acknowledgment to an as-
signment for the benefit of creditors was as
follows: "On this
before me per-
sonally appeared A. and B., to me person-
ally known to be the individuals described
in and who executed the same, and who ac-
knowledged to me that they executed the
same for the purposes therein mentioned."
The assignment was filed in the County
Clerk's office. Held, That the assignment
was not duly acknowledged and the record
was therefore of no avail; and that by rea-
son thereof it vested no property or title in
the assignee.

Held, That under the rigid rule | ASSIGNMENT FOR CREDITestablished in reference to attachments by justices of the peace in the Revised Statutes, when the action was commenced by the attachment, the affidavit in this case is sufficient to warrant its issue. It is positively sworn that the defendant was about to leave the county of his residence with intent to defraud his creditors. The affidavit in proof of this allegation stated that the affiant heard the defendant say to one Irving that he intended during the night getting away out of the county with his horses and all his hops." This can mean but one thing. It established a design upon defendant's part to secretly leave the county of his residence himself, and to take his property with him. It was not necessary for the creditor to go further and state that there was no other property. An intent to remove the attached property with intent to escape from liability for the payment of his debts by means of a levy upon it was sufficient to obtain the attachment. It was not necessary to show any other debts existing, or any request to pay this debt. After the attachment was once properly issued the affidavit ceased to be of any relevancy in the case. Whether the Code, which does not now make an attachment the means of obtaining jurisdiction, has changed the old rule, is not material to decide. The affidavit is sufficient in any event.

Judgment affirmed.

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

Appeal by plaintiff from judg ment dismissing complaint for failure of plaintiff to show a valid general assignment for the benefit of creditors from one Smith to himself, by which he claimed the property described in the complaint. The defect in the assignment was an irregular certificate of acknowledgement in these words: "On this 21st day of February, 1882, before me personally appeared Clinton H. Smith and John G. Smith, to me personally known to be the individuals described and who executed the same, and who acknowledged to me that they executed the same for the purposes therein mentioned."

On the trial before the referee plaintiff offered the instrument, dated Feb. 20, 1882, and filed in the office of the County Clerk the

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