Page images
PDF
EPUB

ANIMALS.

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.

APPEAL.

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 McÅrdle, 34.

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. Treman et al., 70.

3 It does not follow that B., although allowed to intervene, can take substantial control of the prosecution of the action.— Id.

4. A stipulation barring 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 affirmance at General Term.-Colleran et al. v. Kennedy et al., 175.

10. An order of General Term denying motion to dismiss appeal will not be reviewed in Court of Appeals 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.Mead 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 made upon exceptions, the Court of Appeals 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 §§ 1336 and 1350.-ld.

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.,
318.

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 confirmation had been entered
in the action, when that fact is first 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 canuot
be interfered with by the Court of Appeals.
Whitaker v. The Imperial Skirt Mfg Co., 392.

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.-Bowles
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. Held, That plaintiff's rights
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-

dorsed with the 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 controvertable and
material questions of fact are involved.-
Bronk v. The N. Y. & N. H. 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 to 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.

SEE COSTS, 8, 11; COUNTY COURT; EMINENT
DOMAIN, 3-5, 10; PRACTICE. 22; REFER-
ENCE, 5; SURETYSHIP, 7; Surrogate, 1,
6; UNDERTAKING; VENUE, 2; WILLS, 9.

ARBITRATION.

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.

[blocks in formation]

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 suffered other damages by reason of
the order of arrest.-Tunstall v. Winton,
512.

See COSTS, 7, 10; FRAUD, 6.

ASSAULT.

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. Held, 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. Irving, 335.

See CRIMINAL LAW, 3; MASTER AND SERV-
ANT, 4.

ASSESSMENTS.

1. A voluntary payment of a portion of an
assessment will deprive the party so paying
of the right to complain, except to the ex-
tent of the remaining lien of the assessment.
-In re petition of Hughes, 2.

See APPEAL, 7.

ASSESSORS.

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.
The 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
faith, e. g., that he first consulted a lawyer

[blocks in formation]

1. The legislature of any state has the power
to make laws regulating the effect of a for-
eign 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 has the right to commence an action
in the courts of Pennsylvania and attach
personal property situated within that state
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 lieu 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. Held, That the assignment was good
to pass all the interest of B. & H.—Adee 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, filed in
pursuance of the act 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.
-Id.

7. The debtor who makes a general assign-
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., 358.

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.

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, during 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.
See CONTRACT, 13; CREDITORS BILL, 2, 6.

ASSOCIATIONS.

See SERVICE, 3, 4.
ATTACHMENT.

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.

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
abused.-Id.

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,
256.

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.
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-
cated.-Id.

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.

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

596

[ocr errors]

the affiant states he heard the defendant
during
say to one Irving that he intended "
the night getting away out of the county
with his horses and all his hops," is suffi-
cient to give jurisdiction, without the
creditor's stating that there was no other
property of the debtor.-Davis v. Fleming,
460.

9. Section 683, Code Civ. Proc., does not re-
late to the power of amendment, but to the
practice on motion to vacate an attach-
ment.-Kibbe v. Wetmore, 475.

10. An objection to the reading of affidavits
on motion cannot be made for the first time
on appeal.-Id.

11. A fresh attachment may be granted on
affidavits ex parte.-Id.

12. It is immaterial that the fraudulent dis-
position of property took place outside of
this State, so long as our courts have juris-
diction of the action and the parties.-Id.

See ASSIGNMENT FOR CREDITORS, 1; COR-
PORATIONS, 6, 7; SHERIFFS, 7-9.

ATTORNEYS.

1. Plaintiff was employed by defendant to op-
pose probate of a will, for which he was to
receive what she should choose to pay. He
filed objections, which were afterwards
withdrawn with her consent and a decree
entered. Thereafter he was employed to
procure a revocation of the probate, but
withdrew because a person objectionable
to him had been introduced as counsel into
the case by defendant without his knowl-
edge or consent. In an action for his
services, Held, That the latter proceeding
was technically a different proceeding from
the first, and that defendant by the em-
ployment of new counsel without plain-
tiff's knowledge or consent furnished rea-
sonable cause for his withdrawal from the
case.-Tenney v. Bergen, 30.

2. Plaintiff herein, an attorney, was author-
ized by his client to discontinue without
costs a certain action commenced by him,
and thereafter made an agreement with de-
fendant herein, who was one of the sureties
of defendant in the first action on arrest,
that said action should be discontinued, and
that defendant herein should pay him
$1,000 on account of his costs, and said ac-
tion was forthwith discontinued. Held, In an
action to recover said $1,000, that the agree-
ment was valid, and that it was an original
undertaking and not within the Statute of
Frauds, and that it was not void as against
public policy.-Morgan v. Woodruff, 59.

3. Where a defendant settles a case before
judgment without collusion and without
intent to defraud his attorney, and defend-
ant is solvent and able to pay his attorney,
the latter has no right to set aside the settle-

ment and continue the case for the purpose
of collecting his costs, unless the case is
within 66 of the Code.-Pierson v. Safford
et al., 106.

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 § 66 to which
the attorney's lien can attach.-Id.

5. Where plaintiff before verdict, report, de-
cision or judgment, settles the action with-
out the intervention of his attorney and
without paying his fees, said attorney can-
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-
pany are not entitled to compensation for
their services out of the fund.-In re The
Security Life Ins. Co., 154.

7. A party is bound by the acts of his attorney
and responsible for his methods in the en-
forcement of the judgment.-Guilleaume v.
Rowe et al., 196.

8. Plaintiffs were retained under special con-
tract as attorneys to conduct certain cases
for defendant. The full retainer not having
been paid after repeated demands they
refused to be bound by the agreement and
withdrew; but thereafter, as attorneys of
record in one of the actions in which a
judgment against defendant had been va-
cated, they stipulated in writing that the
order of vacation should be set aside, and
allowed an order for an extra allowance
to be entered against defendant. Held,
That plaintiffs were bound to serve until
the close of the litigation unless sooner
legally discharged; that the fact that they
remained attorneys of record and their
subsequent acts as such amounted to a
waiver of their client's default in payment,
and that such acts being adverse to their
client they could not recover for services
in that suit.-Andrews et al. v. Tyng,
223.

9. An attorney who represents certain policy
holders of an insolvent insurance company,
and who renders services by resisting claims
made by the receiver of such company
against the assets on his accounting, must
look for his compensation to the policy
holders whom he represents, and is not en-
titled to be paid for such services out of
the assets of the company.-The Atty. Gen.
v. The Continental Life Ins. Co., 493.
10. Where an attorney agreed to perform all

« PreviousContinue »