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thereupon attack his character, but no cvi.
dence of good character is given on his
part, on a motion for a new trial, under
$ 465 of the Code of Criminal Procedure,
on affidavits showing the defendant's good
character, such evidence is not cumulative
and a new trial may be ordered, notwith-
standing the fact that defendant had wit-
nesses on that point in court, at his trial,
who were not called by his counsel, when
it appears that if such evidence had been
given upon the trial, it would probably
have changed the verdict. — The People v.

Lane, 23.
2. Such applications will not ordinarily be re-

a justice's judgment against a third party
when the oflicer acts in good faith, believ-
ing the property to belong to the debtor. -

Hall v. The People, 357.
8. A motion in arrest of judgment must be

ceived with favor, and each case must de-
pend upon its own peculiar circumstances. —

made for some defect which appears on the
face of the record and cannot be based on a
mere affidavit showing the existence of
facts outside of the record and which do
not constitute a part thereof.The People
v. Kelly, 483.

9. After the jury retired a written communi-

cation was sent from their room to the court
who answered it in writing. Its nature
was not disclosed. Held, That the presump
tion is that there was no violation of duty
by the Court; that an affidavit of this fact
could not be made the basis of a motion in
arrest, but the proper practice would be to
make a statement of the fact as a part of
the case and exceptions, and thus enable
the Court to make an explanation as to the
character of the communication.-Id..

10. Evidence to show the character of de-

fendant to have been violent at other times
from that on which the offence in question
was charged to have been committed is im-

3. On the trial of an indictment for a feloni.

ous assault upon one M. the prosecution
was allowed to prove that shortly after said
assault and in the absence of M. the prison-
er had an altercation respecting him with
one J., and that he then drew a pistol and
attempted to fire it, when he was overcome
and arrested. Held, That the evidence was
inadmissible, as it had no relation to the

case on trial. — The People v. Gibbs, 66.
4. After defendant's conviction of a felonious

assault a motion was made in arrest of judg-
ment, upon the ground, appearing by atti-
davit, that during the prisoner's absence,
and while the jury was deliberating, a
written communication wils sent by one of
the jurors to the justice who had presided
at the trial, and a written communication
sent back by the justice to the jury. The
motion was denied. What the communi-
cation was did not appear, whether or not
it related to the case, and nothing appeared
with respect to it in the case as settled.
sleld, That, in the absence of any proof or
circumstance showing otherwise, this Court
will not presume that the communication
related to the case, the motion having been
denied, or was improper or prejudicial to
the prisoner. Error will not be presumed,
but must be shown. The facts disclosed do
not warrant a reversal of the judgment. -

The People v. Kelly, 234.
5. The defendant in an indictment may be

cross-examined as to other acts of miscon-
duct, not involved in the issue to be tried,
which may affect his credit as a witness in
the case, but the inquiry should be limited
to acts reasonably attended with that result,
and such cross-examination should be re-
stricted to such acts as bear directly upon
the present character and moral principles
of the witness. The People v. Irving, 335.

11. The time counsel are to occupy in pre-

senting a case to the jury rests to a great
extent in the discretion of the Court. Where
the time has been limited by the Court, the
counsel for one party has a right to stop
the opposite counsel when his time is up,
and if he fails to do so cannot complain
that the other counsel exceeded his time. -

12. A commitment to the House of Refuge

for the Reformation of Juvenile Delinquents
which commits to that institution “Nicho-
las Roach, aged fourteen years,"contains
a sufficient statement of the age of the per-
son so committed and shows sufficiently
that he is under the age of sixteen years as
required by statute.-In re petition of Roach,

13. Section 688 of the Penal Code, prescrib.

ing an increased penalty for a second
offence, does not require that the subsc-
quent crime should be similar in degree to
the first offence; and, under that section, a
person who has been convicted of a felony
within this state must be sentenced to im-
prisonment for life on conviction of a
second offence of such a character that,
upon a first conviction of it, he might be
punished, in the discretion of the Court, by
imprisonment for life; and, if the subse-
quent crime is such that, upon a first con-
viction, the offender would be punished by
imprisonment for any term less than his
natural life, then such person must be sen-
tenced to imprisonment for a term not less
than the longest term, nor more than twice

6. The defendant on appeal can get no bene-

fit from the admission of improper evidence

by which he was not prejudiced. --Id.
7. One may not resist an officer who levies

upon his property under an execution upon

the longest term prescribed upon a first con- mortgage. Held, That the grantees, upon
viction.— The People v. Raymond, 537.

acceptance, became bound as covenantors
14. Said section of the Code is applicable to a

to pay the mortgage. - Bowen v. Beck, 55.
case where the first offence was committed 3. An indenture is a deed inter partes or a
and punished before the enactment of the mutual deed.-Id.
Code, and is not an ex post facto law when
applied to such a case; neither does it vio- 4. Where a church society accept a deed of a
late constitutional provisions by inflicting lot, with the provision therein that the
two punishments for the same offence. - grantees should keep erected on the lot a

church building to be used as specified, and

with the condition that if at any time said
See APPEAL, 22-24; ASSAULT; DISORDERLY lot should be left vacant for two years the

PERSONS; Excise; False PRETENCES; title should revert to the grantor, Held,
FISHERY, 2; FORGHRY; INDICTMENT; LAR- That the grantor, a pew-holder. cannot by

injunction, restrain the society from selling

the church building; his remedy is re-entry

or ejectment; and the grantees are under

no covenant to keep the building erected
See INFANTS, 3, 4.

on the lot conveyed. Erroin v. Hurd et al.,


5. Where, in the description in a deed, the
1. In an action for false representations, in

place of beginning of the premises con-
stating that certain land was clear of incum-

veyed was stated to be at a point on the
brances when in fact a judgment was a

westerly side of an avenue, a certain dis-
lien upon it, it appeared that plaintiff still

tance from the southeasterly corner" of the
owed defendant upon the purchase far more

avenue and a street, and the description con-
than the amount of the judgment in ques.

tained evidence that the word the draughts-

man intended to use was southwester-
tion. Held, That plaintiff was entitled to
recover only nominal damages, as he had

ly corner," the court should, in the inter-
as yet suffered no damages and was besides

pretation of this description, read it so as to
in a position, if compelled to pay thic judg.

iransform the word “southeasterly" into
ment, to keep back the amount from the

“southwesterly," and defendant should be
money still due defendant. - Post v. Lyke,

compelled to fulfill his contract to purchase

the premises described in said contract in

accordance with the corrected description.
See CONTRACT, 12, 18; CorpoRATIONS, 2;

- Bookman et al v. Kurzman, 201.
Costs, 13; EMINENT DOMAIN, 7; LEASE, 6;

6. To authorize a
LIBEL, 1, 2; NEGLIGENCE, 12, 14, 22;

construction that the

grantor of premises intended to retain title
to the highway the language of the grant

must exhibit such intention. Where a de

scription begins at the corner of two streets

and not at the intersection of their exterior
1. The City of New York, in 1810, granted to lines and the courses run along said streets
A., who was the owner of the lands above

and not along their sides, the grant carries
high water mark, certain water lots adjoin- the title to the centre of said streets. --Huss-
ing. 150 feet wide, extending to the west- ner v. The Brooklyn City RR. Co., 217.
erly line of West street (which had been by
law declared to be the exterior line of the 7. It is not necessary that the premises con-
city), with the right to fill up the land under

veyed by a deed should be described there.
water, and for a stipulated rental the right in by boundaries, courses, or distances, or
of wharfage “by or from the wharf or by reference to monuments; words of gen-
wharves to be erected on the west side of

eral description are sufficient. - Coleman v.
the premises."

In an action for damages The Manhattan Beach Imp. Co, et al., 241.
for interference with plaintiff's wharf and
wharfage rights, Held, That by its grant 8. When words of general description are
defendant conveyed to A. the land and the used oral evidence is admissible to ascertain
right of wharfage, and that there also the particular subject matter to which they
passed by necessary implication an ease. apply.-Id.
ment giving A. and his grantees a perpetual
right of free access to the wharf erected

9. Plaintiff purchased the premises in ques-
by him, and such easement could not be

tion and paid therefor, but by mistake
destroyed or impaired without compensa-

they were omitted from the deed. There-
tion. - Langdon v. The Mayor, &c. of N. Y., after the assignee in bankruptcy of the

the grantor, under order of the bankrupt

court, executed a deed of the premises to
2. A mortgagor conveyed a portion of the correct such mistake. At that time de-

premises by warranty deed by which the fendants were in possession under a deed
grantees assumed and agreed to pay the from the original grantors executed subse-

quent to plaintiff's purchase. IIeld, That
the assignee's deed was not in contraven-

tion of 1 R. S., 739, S 147. —Id.
10. One who owns real property apparently

incumbered by invalid mortgages mav con-
vey it in such manner as to enable his
grantee to avail himself of such defenses to
the enforcement of the mortgages as exist.
ed in his own favor.-Bennett v. Bates et al.,

11. A clause in a conveyance making it sub-

ject to a specified mortgage "if there shall
be found anything owing and unpaid upon
the same is sufficient to show an intention
to convey the grantor's entire interest in the
land and to subject it only to the payment
of the sum actually owing on the mortgage.
Such a conveyance enables the grantee to
dispute the validity of any claim against
the land which was open to the grantor to

12. The owner of mills on a non-navigable

stream sold a portion of its land and one of
the mills by deed which reserved “the
right at all times to use so much of the
water in the river and dam which now is or
may hereafter be therein, or in any dam
erected hereafter, as shall be necessary to
operate the present or any additional ma-
chinery which may be hereafter put in the
building now used by them, or in any build-
ing to be erected on the site thereof, of the
like or less dimensions." A statute of the
State authorized a dam of only eight feet.
lleld, That this reference to the machinery
was simply to measure and limit the quan-
tity of water to be used ; that quantity
could be used for any purpose and any.
where, and the grantor had the right to store
it until he could take it and produce the
power to which he was entitled ; that there
being no limitation in the deed as to the
height of the dam, the water could be taken
from the one then existing, or from any
thereafter erected, without regard to the
statutory limitation.-Groat et al. v. Moak,

13. One C., who held a paper title to certain

premises, executed a deed thereof to one
T., whose wife at the time held the title to
the premises under a former deed to T.
Heu, That the deed from C. was not cham-
pertous ; that it was possible that T. was in
possession and that he took the deed with
the knowledge and consent of his wife.-

Whiting v. Edmunds et al., 417.
See Creditor's Bill, 1, 5 ; EXECUTORS, &c.,

under-valuation and in violation of the rev-
enue laws. No such defense was interposed
by the original defendants. The receiver's
petition to be made a party alleged collusion
between plaintiffs and one or more of the
defendants, on information and belief, but
did not give the source of information nor
name any of the defendants. Held, That
this statement was insufficient to support
the order and the defense interposed could
be of no avail ; that the original defendants
not having pleaded such defense were not
in a position to insist that the goods were
shipped to them in violation of law and
hence that they could not be sued therefor.

llonegger et al. v. Wettstein et al., 397.
2. Foreigners are not presumed to be ac-

quainted with our revenue laws, and every
intendment is to be made in their favor.


3. One of the firm testified in support of the

defense interposed by the receiver. Held,
That he was an interested party and that
the question of his credibility should have
been submitted to the jury.-Id.



8; MORTGAGE, 11.

1. An order for the examination of a party

before trial should not be granted, and if
granted should be vacated, where the mov-
ing papers show that the testimony which
is sought relates exclusively to frauds with
respect to which the party sought to be ex-
amined is privileged from testifying.--An-

dreis v. Prince, 237.
2. A party who resides in the State capnot bc

required to attend for examination before
trial in any county other than that in which
he resides or where he has an office for the
regular transaction of business in person,
and there is no exception in favor of coun-
ties in which the place of trial is laid.--

Gustaf v. The American SS. Co., 297.
3. Upon an application under $ 870, etc., of

the Code of Civ. Proc, for the examination
of a person before trial, whether a party to
the action or not, the applicant must state,
by atlidavit, facts and circumstances show-
ing that the testimony sought is material
and necessary to his case. --The Wayne Co.

Sargs. Bk, v. Brackett et al., 530.
4. Proceedings supplementary to execution

are special proceedings within the intent of
$ 82.5, Code Civ. Pro., and the depositions
of witnesses taken thereon must be filed
with the County Clerk, though they were
not used upon the application for a receiv.
er, and though the testimony was taken
down and written out by a stenographer
paid by plaintiff's attorney.--Foster v.

Twigg, 563.
Sce EVIDENCE, 13, 22 ; Wills, 19.


1. In an action to recover for goods sold to a

firm the receiver appointed in an action to
dissolve the partnership was made a party
by order of the court and interposed a de-
fense that the goods were imported at an

ful demands of their fathers, mothers, &c.,
to the House of Refuge in the City of New
York, is not inconsistent with any of the
provisions of the Code of Criminal Proced.
ure or of the Penal Code, and consequently
is not repealed thereby.-In re petition of
Riley, 515.

1. Where piaintiff in an action for divorce,

relying on defendant's promise that he
would pay her from time to time a fair
amount, etc., in lieu of alimony, refrains
from making provision therefor in the de.
cree, though the same was demanded in the
complaint, she cannot thereafter have the
decree amended in that regard.Johnson v.

Johnson, 27.
2. The rule of evidence in an action for di.

vorce a vinculo is the same as in other civil
actions. A mere preponderance of evidence
is sufficient. The rule requiring proof be.
yond a reasonable doubt, as in criminal

cases, does not apply.-Allen v. Allen, 184.
3. The referee's report in an action for divorce

a vinculo must be confirmed or judgment de
nied. The case cannot be opened for fur-
ther testimony; court has power only to
direct a new trial. It is error to set aside
all proceedings and send case to Circuit
after a report that is free from fraud, collu-
sion or irregularity has been made.-Ross v.

Ross, 208.
4. After the entry of final judgment in plain-

1. Permission to discontinue an action which

has been settled by the parties after issue
joined without the intervention of their
attorneys will not be refused merely be-
cause their attorneys raise objections to such
settlement, and especially where no fraud
or collusion is shown. – Roberts V. Doty,



1. Upon a motion under the Code for discov.

ery and inspection of writings, the chan.
cery rule as to a bill of discovery still ob.
tains, viz., that the applicant may have a
discovery of matters necessary to maintain
his own title, but not of matters going only
to the title of his adversary, and it is only
where he is entitled to a discovery of deeds,
etc., for the purpose of establishing his own
case that his right is not affected by the
circumstance that the same deeds are also
evidence of his adversary's title.— The Shoe

& Leather Reporter Assn. v. Bailey, 296.
2. Where the action is brought to recover the

amount of a balance of moneys alleged to
have been received by defendant as plain-
tiff's agent, and the complaint is drawn up-
on the face of certain accounts rendered by
defendant as such agent, he is entitled to an
inspection thereof, though the complaint
after setting forth a demand of such bal-
ance from defendant and his refusal to pay
alleges that he has converted the same to
his own use. The Inyo Consolidated Mining

Co. v. Pheby, 354.
3. The General Term having reversed an or-

der denying an inspection order, the Special
Term, io enable plaintiff to apply for a lim-
itation of the General Term order, granted
a stay unless defendant would stipulate to
take an inspection under supervision of a
referee. This defendant refused to do and
appealed. Held, That defendant having
refused to accept the terms lawfully im-
posed, the General Term had a right in its
discretion to renew such terms or to refuse
to do so and make the refusal effectual by
denying an inspection entirely, and its order
thereon is not reviewable. -Clyde et al. v.
Rogers, 482.

tiff's favor in an action for divorce brought
by the wife, the court bas no power to grant
a counsel fee to plaintiff's attorney to rec-
ompense him either for services performed
prior to the entry of such judgment or for
those performed by him in resisting an ap-
peal by the defendant to the General Terin
and the Court of Appeals.- Winton v. Win.
ton, 262.

5. When, on an application for alimony and

counsel fee in an action for divorce, the
plaintiff swears that she is informed and
believes that the defendant has an annual
income of $10,000, statements by the de-
fendant, in his opposing affidavits, to the
effect that he is embarrassed in business,
and largely indebted, and unable to pay
alimony, &c., will not warrant the denial
of such application, or a reduction on ap-
peal of an allowance of $150 per month
and $500 counsel fee.-Lloyd v. Lloyd,

6. If plaintiff's statement of the amount of

defendant's income was not correct de.
fendant should have denied it directly.-

7. The Code of Civil Procedure bas not taken

away the power of this court to make an
order for counsel fee and alimony pendente
lile in an action for divorce on the ground


1. Section 5, Chap. 172, Laws of 1865, giving

authority to a magistrate to commit any
children under the age of sixteen years de-
serting their liomes without good and suf-
ficient cause, or keeping company with dis-
solute cr vicious persons, against the law-

condition that she should keep the property
insured, pay all taxes and assessments and
keep the property in good repair, and on
her death gave said property to bis chil-
dren. Held, That the provision made for
the widow was so repugnant to a claim for
dower that they could not stand together
and that the widow having entered and pos-
sessed under the devise for more than one
year was not entitled to dower.-In re es-

tate of Zahrt, 479.
6. Except in the case of dower under sub. 3,

8 2793 of the Code, a widow is not absolutely
entitled under Rule 71 to a gross sum in
lieu of her annuity, but the granting there-
of rests in the discretion of the court.-Id.


of pullity of the marriage.O'Dea v. O'Dea,

8. The provisions of 2 R. S., 148, § 59, con-

ferring upon this court jurisdiction to make
such order as between the parties to a
divorce suit, even after judgment, for the
custody, care and education of the children
of the marriage as the occasion may require,
are not repealed by Chap. 245, Laws of 1880,
as to actions of divorce theretofore deter.
mined, as appears by sub. 2 of 8 3 of the
Act of 1880, although otherwise repealed.

-Catlin v. Catlin, 442. ,
9. This court has jurisdiction, therefore, after

a decree of divorce, made in June, 1874,
and prior to said Act of 1880, making no
provision for the education of the child of
the marriage, to direct that defendant, the
father, make suitable pecuniary provision
for the education of the child of the mar-
riage, although the court by the final
decree has lost jurisdiction to modify the
decree of divorce for the wife's benefit.-




10. An order directing the payment of ali-

mony by the husband to the wife cannot
be made after the entry of a decree of
separation making no provision therefor ;
but provision for the support of children
may be made.-Erkenbach v. Erkenbach,


1. Where testator by his will gives to his wife

a certain sum which is to be accepted and
received by her in lieu and bar of her dower
and of all claims she may have upon or
against his estate as his widow, she takes
no portion of a dower interest in that part
of the estate undisposed of by reason of
legacies having lapsed or invalid disposi-
tions in other ways.Bullard v. Benson

et al., 266.
2. On the death of a man intestate and leav.

ing him surviving a mother, a sister and a
widow, the mother takes a life estate in all
his lands with remainder to the sister, and
an unassigned right of dower which the
mother pieviously had in such land be-
comes merged in said life estate. — Aikman

v. Harsell et al., 389.
3. In such a case the maxim dos de dote peti

non debet does not apply, and the widow is,
therefore, entitled to dower in the whole
estate, and not in two-thirds of it only.-

1. Plaintiff sold certain land to defendant J.,

under an agreement that the use of light
from all openings on one side should be re-
served for the use of plaintiff. Defendant
J. conveyed the land ihrough a third party
to defendant R., his wife, whereupon the
latter procured a mortgage previously ex-
isting upon the property, which had been
assumed by defendant J., to be foreclosed,
and upon the sale made under the judg.
ment she became the purchaser and took
the deed. Held, That this vested in her the
entire interest and estate of the mortgagor
and mortgagee as it existed at the date of
the mortgage unaffected by subsequent in-
cumbrances and relieved the land from the
easement reserved in the deed to her hus-
band.The Rector, &c., of Christ Church v.

Mack et al., 3.
2. To establish a right by adverse possession

under a parol agreement to take water from
the spring of another by means of pipes
laid through his lands, the proof must be
entirely clear as to the nature and specific
character of the agreement. — Cronkhite v.

Cronkhite, 399.
3. H. C. & J.C. entered into a parol agreement

by which they were to lay pipes on the
lands of J. C. to carry water from a spring
to the houses of J. C. and H. C. Each was
to pay half the expense and do half the
work, and H. C. was to have the right to
take water from the spring through pipes
in perpetuity. No agreement was made as
to the size of pipes, their depth below the
surface, amount of water to be carried
therein or to be used by either party, nor
how long the pipes were to be continued.
Held, That the agreement had reference
only to the surplus water belonging to J.
C., and that in case of a deficiency or an in.
crease in the use by J. C. the agreement
might be ended; that a valid agreement in

4. There are no statutory provisions regula-

ting costs in an action for the admeasure-
ment of dower under $ 1596, et seq. of the
Code of Civ. Pro. and, consequently, costs
in such an action are in the discretion of

the Court.-ld.
5. Testator by his will gave to his wife the

use of all his property during her lile on

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