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Digest.

of the parties to each other, it is entitled to protection as a privi

leged communication. (Ia.) 9. The rule of exclusion applies to

every attempt to give the communication in evidence without the assent of the person making it; and so, includes a case where the evidence is sought to be given without such consent against a

third person. (Id.) 10. It seems, that when such a com

munication is sought to be proved in an action, to which the person making it is not a party, an objection thereto, by the party against . whom it is offered, will lie, on the ground of public policy. (Id.)

ing an action brought by him upon a promissory note, Levi assigned his interest therein to the plaintiff's testator. The only consideration for the assignment, which was drawn by one of the defendants, was a pre-existing debt due from Levi to the assignee:

Held, that the defendants had a lien upon the proceeds of the judgment recovered in the action, not only for their services rendered therein, but also for their general account for professional services rendered to the assignor, and that the rights of the assignee were subject thereto. (Schwartz agt. Schwartz, 21 Hun, 33.)

BENEVOLENT SOCIETY.

ATTORNEY-GENERAL.

See PRACTICE.

The People agt. Bruff, ante, 1.

1. An association whose members

become entitled to privileges or rights of property therein, cannot exercise its power of expulsion without notice to

ATTORNEY'S LIEN.

1. The attorney has a lien upon the

papers in the suit, which cannot be divested without payment, but he has no lien upon the client, and cannot prevent him from employing another attorney to represent him. (Prentiss agt. Livingston et al., ante, 380.)

the person charged, or without giving him an opportunity of being heard. The service of notice, in the absence of any agreement to the contrary or any provision in the charter or by-laws controlling the same, must be made personally. (Wachtel agt. The Noah Widows and Orphans' Benevolent Society, ante, 424.)

2. Where motion was made by de.

fendants for substitution of a new BILL OF PARTICULARS. attorney:

Held, that the motion should be 1. In an action of slander the comgranted; but if the defendants plaint alleged that on or about desire the papers in the possession The 4th, 5th or 6th days of August, of their attorney they must first 1880, &c., the defendant, at the discharge his lien. If this relief town of Western and elsewhere, is not insisted upon the order for &c., and at divers and various substitution must provide that the other times and places, and in the taxable costs in the action to the presence and hearing of divers present time (if collected upon a good and worthy citizens, spoke favorable termination of the ac- of and concerning this plaintiff, tion) be paid to the present attor- &c. Upon application of the deney of the defendants, to whom fendant an order was made directthey equitably belong. (Id.) ing plaintiff to deliver to defend

ant a bill of particulars specifying 3. While the defendants were, as the times when and the places attorneys for one Levi, prosecut- where the slanderous words al.

VOL. LX 68

Digest.

leged were spoken. A bill was The complaint charged that the served, which, after specifying a defendant “did, sometime during few times and places, stated that the month of September, 1879, at said defendant “ did, as plaintiff the city of New York, falsely, is informed and believes, at other wrongfully and maliciously speak, places and dates and times, in the utter and publish the following town of Western, in said county false, defamatory and actionable of Oneida, during the month of words of and concerning the August, 1880, speak of and con- plaintiff, in the German language, cerning said plaintiff, the slander- in the presence and hearing of ous and defamatory words in the divers persons, all of whom un. complaint mentioned and set out, derstood the same;" it then set but at what particular place or forth the language in German and places or dates, said plaintiff is English, and alleged that by reanow absolutely unable to state or son of the speaking of such words set out more particularly and the plaintiff was greatly injured definitely." Upon application of 'in his fame, reputation and good defendant for a further bill, which name as a physician, and in his should comply literally with the earnings, profits and income as order of the court, and also give such," and that he had sustained the names of the persons in whose great damages. presence the words were spoken: Upon an application by the de

lleld, that the plaintiff should be fendant for a bill of particulars, compelled to strike out the above held, that the plaintiff should be clause or state the particular times required to furnish a bill of parand places, but was not compelled ticulars, specifying at what place to give the names of the persons or places, and in the presence of in whose presence the words were what person or persons, the words spoken. (Jones agt. Platt, ante, were claimed to have been spoken. 277.)

(Stiebeling agt. Lockhaus, 2i Hun,

457.) 2. The decision in Stiebling agt. Lock

haus (21 Hun, 457) not followed. 6. That as the allegations as to the (Id.)

injury to the earnings, profits and

income of the plaintiff as a physi3. A broker who is the agent of his cian were not sufficient to allow

client is, and ought to be, required him to prove special damages in to show fully and specifically each particular instances, upon the item of the account which he trial, it was unnecessary to order charges against his client. (Mil- a bill of particulars in those reler et al. agt. Kent, ante, . 88.) spects. (Id.)

4. Each of the parties to such an 7. In this action, brought by the

account is entitled to know and plaintiffs upon a policy of insurto bave presented to him, when a ance issued upon the life of their demand is made for a loss sup- testator, the defense was that cer. posed or real, the items which tain of the answers made by him make up such loss, and to be given to the questions contained in the an opportunity not only to inspect application upon which the policy and ascertain the correctness of was issued were false and untrue, the same, but to controvert such and that the policy was thereby items whenever it becomes neces- avoided. The answer alleged that sary. (Id.)

the testator had stated in his ap

plication that he had made no 6. This action was brought by the other application for insurance

plaintiff to recover the damages which had been refused, and occasioned by an alleged slander. alleged that this was false, and

Digest.

that he had made such application 1. In a suit by a vendor to recover to other companies unknown to goods from one claiming title unthe defendant. It also alleged der a fraudulent vendee, the burthat the testator had falsely an- den is upon the latter of showing swered that he had not had bron- that he is a purchaser in good chitis, or spitting of blood, while faith and for value. (Stevens agt. in fact he had had these diseases: Brennan, 79 N. Y., 254.)

Held, that the defendant was properly required to furnish to 2. Surrender by sheriff of property the plaintiffs a bill of particulars, attached without calling a shercontaining a statement of the com- iff's jury throws upon him burden panies which the defendant ex- of showing that property was not pected to prove had refused to subject to attachment. (See Muminsure the testator's life, together per agt. Rushmore, 79 N. Y., 19.) with the dates of such applications and refusals, and also a state- 3. When burden of proof is upon ment of the particular times and

party producing ballot-boxes and places at which it expected to

ballots in city of Brooklyn as eviprove that the testator had had

dence under the act chapter 575, spitting of blood, or bronchitis,

Laws of 1872, to show that the before the making of the applica- boxes have been kept undisturbed tion in question. (Dwight agt.

and inviolate. (See People ex rel. Germania Ins. Co., 22 Hun, 167.)

agt. Livingston, 79 N. Y., 279.) 8. The defendant alleged that the

evidence upon which it relied to 4. In an action in the nature of a establish the existence of these quo warranto, as between the reladiseases, consisted of oral and

tor and the defendant, the burden written statements of the testator,

is upon the former to make out a which statements did not specify

better title to the office than that the precise time and place at which

of the latter; while, as between he had had them:

the people and the defendant, tho Held, that the order should be

latter may be called upon to show so drawn as to provide that neither

that his possession of the office is the bill of particulars, nor any.

lawful. The production of a cer. thing in the order, should prevent

tificate of election from the proper the defendant from giving evi

officer is however sufficient. (Peodence of any declarations or state

ple ex rel. agt. Perley, 80 N. Y., ments, oral or written, made by

624.) the testator, as to his having had the said ailments, which declara- 5. In action on check against drawtions or statements were general

er, presumption in favor of its as to time and place. (Id.)

validity and burden is upon
defendant to show want of con-
sideration. (See Raubitschek agt.

Blank, 80 N. Y., 478.)
BROOKLYN.

See RAILROADS.

The People agt. Long Island Rail

road Company, ante, 395.

BURIAL.

BURDEN OF PROOF.

1. The question as to the right to

select the place of burial of deceased must be solved upon equitable grounds. While there is property in the burial lot, in the monuments, in the ornaments and decorations of the deceased or his

See ARREST.

Matter of Benson, ante, 314.

Digest.

cases

*

grave, there is none in the remains 2. A service, therefore, of a copy themselves. (Snyder agt. Snyder, of a referee's report, and notice ante, 368.)

of filing, did not operate to limit

the time to serve a case or excep2. Since the common law cannot tions. (Id.)

protect or bestow them as property or afford an adequate remedy in 3. Accordingly, held, that the rule

which sometimes occur, of the supreme court (rule 34 of equity will be invoked to grant 1858, rule 47 of 1871 and 1874, and such protection and give such rule 32 of 1877), requiring a case remedies as seem to be required to be served within ten days after by the circumstances, and are in written notice of the decision or consonance with the feelings of report, was in conflict with the mankind. (ld.)

Code, and consequently inopera

tive. (Id.) 3. The person having charge of the

remains hold them as a sacred trust 4. The practice, in this respect, was for the benefit of all who may,

not changed by the provision of from family ties or friendship,

the Code of Civil Procedure (sec. have an interest in them; in case

994), providing that exceptions, of a contention the court should

taken after trial, may be taken assume an equitable jurisdiction

"at any time before the expiraover the subject, somewhat in

tion of ten days after service analogy to the care and custody

of a copy of the decisof infants, and make such a dis

ion of the court, or report of the position as should seem to be best

referee, and a written notice of and right under all the circum

the entry of judgment thereupon.” stances. (Id.)

(Id.) 4. In a contention between the 5. While, under this provision, exwidow of the deceased (who was

ceptions may be taken at any time his second wife) and his only son

after trial, they are not required and heir (being the child of his first

to be taken until ten days after marriage), as to the disposition of

notice of judgment; and although his remains after taking into con

no provision is made as to time sideration all the circumstances:

for serving the case, as the case is Held, that the claim of the son

required to contain the exceptions was to be preferred. (Id.)

(Code, sec. 997), it need not and cannot be served until after the

exceptions are framed; and the CASE.

party cannot be put in default for

not serving a case containing them, 1. Under the provision of the Code before the expiration of the time

of Procedure, in reference to mak- allowed for framing them. (Id.) ing a case for the purposes of review, in an action tried by the 6. The exceptions referred to in said court or a referee (sec. 268), the provision are not simply those ten days allowed for that purpose taken on the trial. (Id.) did not begin to run until the entry of judgment, and notice 7. It seems, that where a report of thereof; the alternative stated a referee, and notice of filing therein, “or within such time as thereof, were served prior to the may be prescribed by the rules of going into effect of the Code of the court,

meant such further Civil Procedure (Sept. 1, 1877), but time as might be prescribed. no judgment had been entered, (French agt. Powers, 80 N. Y., that even if the practice had been 146.)

changed by the said Code, and

Digest.

the rule validated, the notice why he should not be attached for would not have become operative a criminal contempt, in forcibly to limit the time for making a case and willfully resisting the lawful to ten days after the Code went order and process of the court, into effect; as the notice when such proceedings were had that the served did not operate to limit the court adjudged him to have been time, the new provision could not guilty of the said contempt, and retroact to give it that effect, and ordered that he be imprisoned in a new notice should have been the county jail for thirty days and served. (Id.)

pay a fine of $250:

Held, that for the purpose of re

viewing these proceedings upon a CAUSE OF ACTION.

certiorari, they must be deemed

to have been terminated by the 1. Where goods are sold on different

entry of the final order convicting days, each sale constitutes a sepa

the relator of the contempt, and rate and distinct cause of action,

sentencing him to pay the fine and and the plaintiff may, at his elec

be imprisoned, and that it was tion, bring separate actions for error to quash the writ on the each, or for all of them together.

ground that the proceedings were (Zimmerman et al. agt. Erhard

not terminated, because no waret al., ante, 163.)

rant of commitment had yet been
issued. (People ex rel. Gilinore agt.

Donahue, 22 Hun, 470.)
CERTIORARI.

3. A decision overruling a demurrer 1. Prior to the adoption of sections

interposed to an indictment, and 2125 and 2126 of the Code of Civil directing that judgment be given Procedure, there was no statute

for the People, unless the accused nor rule of law prescribing any

plead over, cannot be reviewed fixed period within which a writ

upon a certiorari before a judgof certiorari must be applied for,

ment has been entered on the debut the decision of that question

cision. The court cannot review was left to the discretion of the

the decision before entry of judg. court to which the application

ment, even though the counsel for was made. On April 5, 1879, the

both of the parties agree that it defendant, the Mayor of New

may so review it. (People agt. BeYork, certified to the governor

man, 22 Hun, 283.) that he had removed the relator from his office of police commis. | 4. The supreme court may, upon sioner. From that time until Jan- application of the prosecution, isuary 27, 1880, when the case of sue a writ of certiorari to remove The People agt. Nichols was de- an indictment into that court cided by the court of appeals, the from the oyer and terminer. right of the relator to review such (Jones agt. People, 79 N. Y., 45.) removal by a writ of certiorari was in dispute. On Februrry 2, 5. As to whether a certiorari may 1880, the relator applied for and be brought for that purpose withobtained a writ of certiorari: out the consent and in spite of

Held, that the court below prop- the authority of the supreme erly held that he was guilty of no court, quære. (Id.) laches which would authorize a denial of the writ. (People ex rel. 6. It is not necessary to give notice

Smith agt. Cooper, 22 Hun, 515.) of application for the writ. (Id.) 2. Upon the return of an order re- | 7. It is discretionary with the su

quiring the relator to show cause preme court after having obtained

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