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 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,
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.
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.
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.
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.
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.
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
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
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.
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
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