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1. Knowledge upon the part of an hostler of

the viciousness of a mule is not notice thereof to the master, especially where it appeared that the hostler's only duty was to care for and feed such animals of the master as came to the stable, and that their number was between three and four hundred. Accordingly, Held, That the master was not liable for an injury done by a vicious mule where the only notice of viciousness to be imputed to the master was such knowledge upon the part of its hostler. -Shaver v. The N. Y. & Lake Champlain Transp. Co., 94.


1. An order overruling objections filed against

the petition of an imprisoned debtor for his discharge, made pending such proceedings, is not appealable.-In re petition of McAr

dle, 31. 2. An action by one B., a stockholder, against

plaintiff and defendants as its officers, charging the latter with fraud, &c., was discontinued because irregularly brought. This action was then brought, but B. was not made a party, and his request to be allowed to prosecute it was refused. A motion by B. to be allowed to intervene was granted. Held, That the order granting the application was discretionary and not appealable.-- The Ithaca Gaslight Co. v. Tre

man et al., 70. 3 It does not follow that B., although al

lowed to intervene, can take substantial control of the prosecution of the action.

Id. 4. A stipulation barıing the right of appeal

given by law should be very clear and should leave no doubt of the intention of the party to cut himself off from the right of appeal before it should be so construed.

- Stedeker v. Bernard, 100. 5. A clause in an undertaking on appeal from

an order vacating an order opening a default, to the effect that appellant will, if the order is affirmed or appeal dismissed, pay any judgment that may be entered pursuant to the order for judgment relates to the final judgment and will not bar an appeal from the judgment when entered after

affirmance of such order.-Id. 6. An appeal from a judgment does not bring

up an order allowing an amendment of the answer upon terms; or if it can come up in that manner, the order should be specified in the notice of appeal. Ferguson v.

McDonough, 128. 7. An action to vacate an assessment for

$218.70 as a cloud on title and restrain its collection does not affect the title to real property or an interest therein, and is not

appealable to the Court of Appeals.-Rogers

v. The Village of Sandy Hill, 153. 8. There being a question whether two suits

were brought on one cause of action, and the judge below having given credence to declarations of plaintiff's attorney as represented in the moving affidavits rather than to the averments in the opposing affidavits, the court sees no reason to disturb his conclusions; and objections to the nature of evidence cannot be raised, for the first time, on appeal. - Doyle v. The Recorder

Printing Co., 157. 9. Where the written evidence presents a

case of plain contradiction of two living witnesses and no conclusive fact and none from which any legal presumption would follow has been proved, the Court of Appeals will not interfere with the decision of the trial court, but is concluded by the af. firmance at General Term.- Colleran et al.

v. Kennedy et al., 175. 10. An order of General Term denying mo

tion to dismiss appcal will not be reviewed in Court of ppeals where the appeal papers

do not show that such order was not one within the discretion of the court.

McKenna v. Bolger, 199. 11. A judge of the Supreme Court has no

jurisdiction to extend the time to file the return on appeal to the Court of Appeals.

Meud v. Smith, 221. 12. Where the case contains no recital as to

what the motion for a new trial at General Term was based upon, or whether it was mad

upon exceptions, the Court of Appcals has no jurisdiction.- Victory v. Blood,

245. 13. Where, after the entry of an injunction

order pendente lite, and before the hearing of the appeal therefrom, the action is tried on the merits and a perpetual injunction is decreed covering the same ground as the injunction order, such order will be deemed merged in the judgment and no appeal from it will be entertained. - The Health

Dept. of N. Y. v. O'Reilly, 255. 14. A judgment appointing a referee to take

account of rents and profits, admeasure dower and report the evidence and findings. reserving all other questions until the final hearing, is interlocutory and not final, and no appeal lies therefrom to the Court of

Appeals.-Raynor v. Raynor et al., 279. 15. A party aggrieved by an interlocutory

judgment may move at General Term for a new trial, and if the motion is granted or denied may appeal to the Court of Appeals. If no appeal is taken from an order granting or denying a new trial the practice

must conform to 8S 1336 and 1350. Id. 16. Such motion for a new trial must be based

on one or more exceptions.-Id.

17. The trial court, on settlement of the case,

refused to direct certain exhibits to be
printed entire, but required appellant to
paste them in the appeal book if copies were
furnished or in lieu thereof directed that
either party might refer to the original ex-
hibits on the argument. Held, That the
order holds good until the final determina-
tion of the case, and that appellant should
not be compelled to print such exhibits as
part of the return to the Court of Appeals.

- Kilmer v. The N. Y. C. & H.R. RR. Co., 285.
18. An objection that a claim set up in the

answer was not the proper subject of a
counterclaim cannot be raised for the first
time on appeal. --- Vann et al. v. Rouse et al.,

19. A re-argument of an appeal from an

interlocutory judgment determining the
rights, etc., of the parties in a partition
suit will not be ordered for the reason that
at the time the appeal was taken the final
judgment of contirmation had been entered
in the action, when that fact is tirst brought
to the attention of the court upon the mo-
tion for a re-argument. --Simonson v. Wood et

al., 383.
20. If such an appeal is irregular, the irreg-

ularity is not a jurisdictional one affecting
the power of the Court to proceed and hear
the appeal, and the General Term has power
to allow the papers to be amended by in-
cluding both judgments in the notice of
appeal and by adding to them a copy of

the final judgment.-Id.
21. Where the findings of fact are supported

by the evidence and no question of law has
been improperly decided an affirmance of
the judgment by the General Term cannot
be interfered with by the Court of Appeals.
Whitaker v. The Imperial Skirt Mfg Co., 392.

dorsed with thic name of an attorney, was

good.Horr v. Seaton, 510.
26. The County Court has power to allow an

amendment of a notice of appeal.-Id.
27. An appeal will not lie from an order of

General Term granting a new trial in a case
tried by a jury where controverlable and
material questions of fact are involved. -

Bronk v. The N. Y. & N. II. RR. CO., 566.
28. The report of a referee appointed to as-

certain the values of policies of an insolvent
insurance company did not state the prin.
ciple adopted in computing such values,
and there was no finding by him as to the
principle to be adopted. Held, That an
appeal from the order of confirmation did
not present the question whether in using
the tables prepared by the department it
was necessary io add the value of an annu-
ity equal to the difference between the net
premium assumed by the department and
the net premium actually embraced in the
premiums called for by the policy.- Reese

V. Smyth et al., 575.
29. A paper not referred to in the judgment

at Special Term, not in the judgment roll
and which does not appear to have been
before the General Term has no proper
place in the case on appeal to the Court of

Appeals. —Id.

DOMAIN, 3-5, 10 ; PRACTICE. 22 ; REFER-


22. No appeal can be taken by the People

from an order in a criminal case setting
aside and discharging the grand jury as to
a defendant and as to him quashing an in-

dictment. The People v. Dempsey et al., 438.
23. Section 707, Penal Code, providing that a

sentence of imprisonment to a State Prison
for any term less than for life suspends all
the civil rights of a party sentenced dur-
ing such term, does not apply to a peniten-
tiary which is a county institution. Boucles

v, Habermann, 480.
24. After appeal by defendant plaintiff was

convicted of a felony and sentenced for ten
years imprisonment in the Kings County
Penitentiary. Ileld, That plaintiff's righis
were not suspended thereby so as prevent
his defending the appeal if defendant pro-

ceeds therewith.-Id.
25. Under the law as it stood in March, 1880,

a notice of appeal to the County Court from
a justice's judgment not subscribed, but en-

1. When a policy of insurance contains a con-

dition that in case of disagreement each
party shall select an arbitrator and the two
shall establish the loss, and in case they fail
to agree they shall appoint a third, and that
two out of the three shall settle the amount,
an appointment by one party of an arbitra-
tor, not in good faith but with a design to
accomplish an ulterior purpose, relieves the
other party from such condition.Uhrig v.

The Williamsburgh City Fire Ins. Co., 407.
2. The mere submission to arbitration of the

subject matter of a pending action is a dis-
continuance of the action, even though the
arbitrators have not consented to act. - Mc-

Nully v. Solly, 448.
3. A court of equity will not interfere to re-

strain the action of arbitrators duly appoint-
ed and adjudicate upon the questions sub-
mitted to them. It is not the province of a
court of equity to direct arbitrators how
they shall consider a case pending before
them. - Livingston et al. v. Sage et al., 562.

1. Snbd. 3 of $ 459 of the Code of Civ. Pro.

does not apply to an action brought for the
double purpose of declaring property in the
lawful possession of defendant to be for-
feited to the State and directing it to be
transferred to the possession of the State
by virtue of such forfeiture.— The People v.

Phillips et al., 109.
2. When a deposit is made in lieu of an un-

dertaking on an order of arrest, and the
order of arrest is finally vacated, the bal-
ance of such deposit, after the payment of
defendant's costs of procuring such vaca-
tion, will be ordered to be paid over to
plaintiff, on his motion for that purpose, if
the defendant, in opposition to such motion,
does not claim that, in addition to his costs,
he has sutfered other damages by reason of
the order of arrest. - Tunstull v. Winton,

See Costs, 7, 10 ; FRAUD, 6.

1. To constitute the crime of assault and

battery the assault must have been made
with a criminal or vicious intent. The

People v. Hale, 213.
2. A verdict that the prisoner was guilty of

an assault, but not guilty of a criminal as-
sault or intent to injure, is practically a ver-
dict of acquittal, and it is error for the court

to refuse to entertain it.-Id.
3. Defendant struck the complaining witness

on the head with a pistol, inflicting a wound
an inch and a half in length. Wed, That
a pistol when so used would be likely to
produce grievous bodily harm, and so far
as the nature of the instrument is concerned
came within the provision of the penal
code defining assault in the second degree,
and at least required the case upon that
point to be submitted to the jury.-The

People v. Ircing, 335.

ANT, 4.


1. A voluntary payment of a portion of an

assessment will deprive the party so paying
of the right to complain, except to ide ex-
tent of the remaining lien of the assessment.
-In re petition of Hughes, 2.

See APPEAL, 7.


1. For a wilful refusal or neglect, not cor-

rupt, by an assessor to perform his duties as
such, he is only liable to a penalty of $50.

?he People v. Campbell et al., 156.
2. If liable for corruption in office, under 2

R. S., m. p. 696, $ 38, he must be allowed
to show on the trial that he acted in good
faitli, e. 9., that he first consulted a lawyer
7. The debtor who makes a general assign-

as to his right to do the act complained of.

- 1d.



PARTNERSHIP, 5; Wills, 16.


1. The legislature of any state has the power

to make laws regulating the effect of a for-
cign assignment for the benefit of creditors
as far as such assignment includes tangible
personal property situated in that state,
and citizens of the state in which the as-
signment was executed have the right to
take advantage of such laws ; and, conse-
quently, a creditor who is a citizen of New
York las the right to commence an action
in the courts of Pennsylvania and attach
personal property situated within that stale
belonging to his debtor, who is also a citi-
zen of New York, after the execution and
delivery by the latter of a general assign-
ment of which the creditor has no notice
and before the recording of such assign-
ment in the proper county of Pennsylvania
as required by the laws of that state to give
it effect therein, and thus acquire a lien
prior to that of the assignee.- Warner v.
Jaffray et al., 47.

2. B. & H., who were partners, made a gen.

eral assignment to C. L. & W. had been
employed by them under an agreement that
they were to receive a portion of the profits
in licu of salary. In an action by the re-
ceiver of B. & H. to set aside the assign-
ment because L. & W. did not join therem,
L. &. W. disclaimed any interest in the
partnership property, and it appeared that
W. had overdrawn his portion of the pro-
fits. lleld, That the assignment was good
to pass all the interest of B. & H.- Adce v.
Cornell et al., 83.

3. The intentional inclusion of a fictitious

debt by a general assignor for the benefit of
creditors in his schedule of debts, tiled in
pursuance of the acı regulating general as-
signments, vitiates the assignment.— Talcott
V. Hess, 312.

4. The schedules when filed may be consider-

ed a portion of the assignment for the pur-
pose of ascertaining whether or not a fraud.
ulent intent existed.-Id,

5. No fraudulent intent on the part of the

general assignee is necessary to make out a

case of fraudulent assignment.--Id.
6. It is improper to ask a witness his opinion

as to whether a general assignment made
by another person was made in good faith.

ment for the benefit of creditors must de-
vote all his property to the payment of his
debts, except such as is by law exempt from

execution. — White et al. v. Fagan et al., 359.
8. The withholding of any considerable sum

of money at the time of making the as-
signment from the assignee must in some
form be explained, otherwise it is sufficient

to establish a fraudulent intent.--Id.
9. Any device to cover up the property for

the benefit of the assignor, or secure to him
directly or indirectly any benefit, is fraud.
ulent, and has always received the condem-
nation of the courts.-Id.

2. It seems, That if an attaching creditor should

unjustly neglect to proceed with her suit,
under such circumstances, plaintiff might
possibly have relief upon the ground that
the process of the court was being

3. When an attachment has been issued and

proceedings taken under it, and the sum-
mons is not served in any form until more
than 30 days after the granting of the at-
tachment, the defendant is entitled to have
an order entered vacating the attachment,
notwithstanding the fact that by reason of
such failure to serve the summons it has
become inoperative.- Betjemann v. Brooks,

4. It is indispensible that the papers upon

which an attachment is obtained should
show a cause of action existing in favor of
the party procuring it.Reilly v. Sisson, 382.

10. Where debts of the assignor are eviden-

ced by his notes a statement in the inven-
tory of such notes by date, amount, name
of payee, &c., is sufficient. It is not neces-
sary to state what they were given for.–

Pratt et al. v. Stevens et al., 395.
11. The statute merely requires such an affi-

davit as would usually be made by persons
who had general knowledge of the transac-
action sworn to and not an absolute and
unqualified assertion of positive knowledge.

- Id.
12. A delivery made, duriug the absence of

the County Judge, to his clerk is a construc-

tive delivery to the judge.-Id.
13. The certificate of acknowledgement to an

assignment 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.-Smith v. Boyd et al., 461.

5. The affidavit upon which the attachment

was obtained alleged in substance that
plaintiff had loaned defendant at sundry
times since April 1st, 1883, and up to and
including this date (the date of making the
affidavit and procuring attachment) various
sums of money, amounting in all to $6,000 ;
that defendant was truly indebted to plain-
tiff in that sum over and above all counter-
claims, for which action has been this day
brought, and that defendant was a non-
resident. Nothing was shown as to when
the loans or any of them were to be repaid.
Held, That no breach of contract is shown
and that the attachment was properly va-

6. Upon conflicting affidavits for and against

a motion to vacate an attachment, based on
defendant's being a non-resident, it appear-
ed beyond a reasonable doubt that defen-
dant was a non-resident. Held, That the
court was bound to maintain the attach-
ment, the only point raised being as to
residency of defendant. Brewster et al. v.

Terry, 391.
7. The moving papers upon which an attach-

ment was issued showed that the claim sued
for was for the value of professional ser-
vices rendered by plaintiff at defendants'
request, for which defendants had agreed
to pay their reasonable value, which value
was stated, and that such services were
performed between September 1st, 1882,
down to the commencement of this action.
No demand upon defendant or notice of
completion of services was alleged. Held,
That no breach of contract or cause of
action when suit was brought was shown,
and the attachment was properly vacated. -
Smadbeck v. Sisson et al., 407.


See SERVICE, 3, 4.


1. An attachment is a lien only upon the in-

terest which the debtor had in the premises
when levy was made. Hence, where plain-
tiff was in possession under a paper title
given before but recorded after an attach-
ment levied on the premises against her
grantor, Held, That an action by her to set
aside said attachment as a cloud upon her
title could not be sustained, especially
where the attachment action had not pro.
ceeded to judgment. — Wilson v. Kelly, 118.

8. An affidavit for an attachment in a jus-

tice's court, wherein it is positively sworn
that the defendant was about to leave the
county of his residence with intent to de-
fraud his creditors, and in proof of which

the affiant states he heard the defendant ment and continue the case for the purpose
say to one Irving that he intended “during of collecting his costs, unless the case is
the night getting away out of the county within $ 66 of the Code.Pierson v. Sufford
with his horses and “ all his hops,” is suffi- et al., 106.
cient to give jurisdiction, without the
creditor's stating that there was no other

4. In ejectment, a claim in defendant's answer
property of the debtor.— Davis v. Fleming,

for taxes paid and improvements to be set

off against plaintiff's claim for damages is

not a counter-claim within 866 to which
9. Section 683, Code Civ. Proc., does not re- the attorney's lien can attach.-Id.

late to the power of amendment, but to the
practice on motion to vacate an attach- 5. Where plaintiff before verdict, report, de-
ment.- Kibbe v. Wetmore, 475.

cision or judgment, settles the action with-

out the intervention of his attorney and
10. An objection to the reading of aslidavits without paying his fees, said attorney can-

on motion cannot be made for the first time not maintain an action against the parties
on appeal.-ld.

to the original action on the ground that by

the settlement they have destroyed his lien;
11. A fresh attachment may be granted on

his remedy is by continuance of the original
affidavits ex parte.-Id.

action, as before the passage of $ 66, Code
12. It is immaterial that the fraudulent dis-

Civ. Pro., except that by such section he

need not show fraud to obtain leave to pro.
position of property took place outside of

secute.-Tullis v. Bushnell et al., 121.
this state, so long as our courts have juris-
diction of the action and the parties.-


6. Counsel representing intervening policy:

holders in an action for the distribution of

the funds of an insolvent insurance com-
pany are not entitled to compensation for

their services out of the fund.-In re The

Security Life Ins. Co., 154.
1. Plaintiff was employed by defendant to op-

7. A party is bound by the acts of bis attorney
pose probate of a will, for which he was to

and responsible for his methods in the en-
receive what she should choose to pay. He forcement of the judgment.-Guilleaume v.
filed objections, which were afterwards Rowe et al., 196.
withdrawn with her consent and a decree

Thereafter he was employed to 8. Plaintiffs were retained under special con-
procure a revocation of the probate, but tract as attorneys to conduct certain cases
withdrew because a person objectionable for defendant. The full retainer not baving
to him had been introduced as counsel into been paid after repeated demands they
the case by defendant without his knowl- refused to be bound by the agreement and
edge or consent. In an action for his withdrew; but thereafter, as attorneys of
services, Held. That the latter proceeding record in one of the actions in which a
was technically a different proceeding from judgment against defendant had been va-
the first, and that defendant by the em- cated, they stipulated in writing that the
ployment of new counsel without plain- order of vacation should be set aside, and
tiff's knowledge or consent furnished rea- allowed an order for an extra allowance
sonable cause for his withdrawal from the to be entered against defendant. Held,
case. Tenney v. Bergen, 30.

That plaintiffs were bound to serve until

the close of the litigation unless sooner
2. Plaintiff herein, an attorney, was author-

legally discharged; that the fact that they
ized by his client to discontinue without remained attorneys of record and their
costs a certain action commenced by him, subsequent acts as such amounted to a
and thereafter made an agreement with de- waiver of their client's default in payment,
fendant herein, who was one of the sureties and that such acts being adverse to their
of defendant in the first action on arrest, client they could not recover for services
that said action should be discontinued, and in that suit. -- Andrews et al. v. Tyng,
that defendant herein should pay him 223.
$1,000 on account of his costs, and said ac-
lion was forth with discontinued. lleld, In an 9. An attorney who represents certain policy
action to recover said $1,000, that the agree- holders of an insolvent insurance company,
ment was valid, and that it was an original and who renders services by resisting claims
undertaking and not within the Statute of made by the receiver of such company
Frauds, and that it was not void as against against the assets on his accounting, must
public policy.- Morgan v. Woodruf', 59. look for his compensation to the policy

holders whom he represents, and is not en:
3. Where a defendant settles a case before titled to be paid for such services out of
judgment without collusion and without

the assets of the company.— The Atty. Gen.
intent to defraud his attorney, and defend- v. The Continental Life Ins. Co., 493.
ant is solvent and able to pay his attorney,
the latter has no right to set aside the settle- 10. Where an attorney agreed to perform all

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