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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
- Kilmer v. The N. Y. C. & H.R. RR. Co., 285.
answer was not the proper subject of a
interlocutory judgment determining the
ularity is not a jurisdictional one affecting
the final judgment.-Id.
by the evidence and no question of law has
dorsed with thic name of an attorney, was
good.—Horr v. Seaton, 510.
amendment of a notice of appeal.-Id.
General Term granting a new trial in a case
Bronk v. The N. Y. & N. II. RR. CO., 566.
certain the values of policies of an insolvent
V. Smyth et al., 575.
at Special Term, not in the judgment roll
DOMAIN, 3-5, 10 ; PRACTICE. 22 ; REFER-
22. No appeal can be taken by the People
from an order in a criminal case setting
dictment. — The People v. Dempsey et al., 438.
sentence of imprisonment to a State Prison
v, Habermann, 480.
convicted of a felony and sentenced for ten
a notice of appeal to the County Court from
1. When a policy of insurance contains a con-
dition that in case of disagreement each
The Williamsburgh City Fire Ins. Co., 407.
subject matter of a pending action is a dis-
Nully v. Solly, 448.
strain the action of arbitrators duly appoint-
does not apply to an action brought for the
Phillips et al., 109.
dertaking on an order of arrest, and the
See Costs, 7, 10 ; FRAUD, 6.
battery the assault must have been made
People v. Hale, 213.
an assault, but not guilty of a criminal as-
to refuse to entertain it.-Id.
on the head with a pistol, inflicting a wound
People v. Ircing, 335.
1. A voluntary payment of a portion of an
assessment will deprive the party so paying
See APPEAL, 7.
1. For a wilful refusal or neglect, not cor-
rupt, by an assessor to perform his duties as
?he People v. Campbell et al., 156.
R. S., m. p. 696, $ 38, he must be allowed
as to his right to do the act complained of.
See GUARANTY, 2; MECHANICS' LIENS, î ;
PARTNERSHIP, 5; Wills, 16.
ASSIGNMENT FOR CREDITORS.
1. The legislature of any state has the power
to make laws regulating the effect of a for-
2. B. & H., who were partners, made a gen.
eral assignment to C. L. & W. had been
3. The intentional inclusion of a fictitious
debt by a general assignor for the benefit of
4. The schedules when filed may be consider-
ed a portion of the assignment for the pur-
5. No fraudulent intent on the part of the
general assignee is necessary to make out a
case of fraudulent assignment.--Id.
as to whether a general assignment made
ment for the benefit of creditors must de-
execution. — White et al. v. Fagan et al., 359.
of money at the time of making the as-
to establish a fraudulent intent.--Id.
the benefit of the assignor, or secure to him
2. It seems, That if an attaching creditor should
unjustly neglect to proceed with her suit,
proceedings taken under it, and the sum-
4. It is indispensible that the papers upon
which an attachment is obtained should
10. Where debts of the assignor are eviden-
ced by his notes a statement in the inven-
Pratt et al. v. Stevens et al., 395.
davit as would usually be made by persons
the County Judge, to his clerk is a construc-
tive delivery to the judge.-Id.
assignment for the benefit of creditors was
* before me per-
the assignee.-Smith v. Boyd et al., 461.
5. The affidavit upon which the attachment
was obtained alleged in substance that
a motion to vacate an attachment, based on
ment was issued showed that the claim sued
See SERVICE, 3, 4.
1. An attachment is a lien only upon the in-
terest which the debtor had in the premises
8. An affidavit for an attachment in a jus-
tice's court, wherein it is positively sworn
the affiant states he heard the defendant ment and continue the case for the purpose
4. In ejectment, a claim in defendant's answer
for taxes paid and improvements to be set
off against plaintiff's claim for damages is
not a counter-claim within 866 to which
late to the power of amendment, but to the
cision or judgment, settles the action with-
out the intervention of his attorney and
on motion cannot be made for the first time not maintain an action against the parties
to the original action on the ground that by
the settlement they have destroyed his lien;
his remedy is by continuance of the original
action, as before the passage of $ 66, Code
Civ. Pro., except that by such section he
need not show fraud to obtain leave to pro.
secute.-Tullis v. Bushnell et al., 121.
6. Counsel representing intervening policy:
holders in an action for the distribution of
the funds of an insolvent insurance com-
their services out of the fund.-In re The
Security Life Ins. Co., 154.
7. A party is bound by the acts of bis attorney
and responsible for his methods in the en-
Thereafter he was employed to 8. Plaintiffs were retained under special con-
That plaintiffs were bound to serve until
the close of the litigation unless sooner
legally discharged; that the fact that they
holders whom he represents, and is not en:
the assets of the company.— The Atty. Gen.