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to compel the defendant to appear 4. Where, therefore, it is alleged
and be examined before the trial, that a verdict is perverse, exces-
the existence of a cause of action sive in amount, and contrary to
is not established by allegations the law and the evidence, the
in the affidavit, stating simply judgment entered thereon cannot
that the “action is brought to be reviewed here without an ex-
recover damages for certain ception. (Id.)
breaches, on the part of defend-
ant, of a contract in writing.” 5. This rule has not been changed
(Hale agt. Rogers, 22 Hun, 19.) by the provision of the Code of

Civil Procedure (sec. 999), in refer13. Although the affidavit may be ence to the granting of a new trial

made by the attorney, the mate- by the judge presiding at the trial.
riality of the testimony of the (id.)
witness must be alleged, upon his
own knowledge; or, if it be made 6. For such errors, it seems, the gen-
upon information, the

eral term has power to grant a thereof must be given. (Id.) new trial in its discretion,although

no exceptious were taken on the

trial. (Id. EXCEPTIONS.

7. A writ of error in a criminal case 1. In the absence of any motion or

brings up for review only quesact on the part of a defendant,

tions of law raised by exceptions upon the trial of an action from properly taken upon trial. (Eighwhich an assent to a decision of

my agt. People, 79 N. Y., 546.) the case by the court, and a waiver of the right to go to the jury 8. No exception lies to a refusal to may be implied, an exception to a

postpone a criminal trial by reason direction of a verdict for plaintiff

of the absence of witnesses. (Id.) is sufficient to present the point on appeal that there were questions 9. Under the provision of the Code of fact for the jury; it is not of Procedure, in reference to maknecessary to request the subinis- ing a case for the purposes of resion of any such fact. (First Nat. view, in an action tried by the Bank of Springfield agt. Dana, 79 court or a referee (sec. 268), the ten N. Y., 108.)

days allowed for that purpose did

not begin to run until the entry of 2. It is not essential, in an exception judgment, and notice thereof; the

to a portion of a charge, to repeat alternative stated therein,
the language excepted to, although within such time as may be pre-
this is strictly the more accurate scribed by the rules of the court,"
practice; it is sufficient if the por- meant such further time as might
tion objected to is pointed out be prescribed. (French agt. Poro-
with such accuracy that there can ers, 80 N. Y., 146.)
be no misapprehension as to the
application of the exception. (Peo- 10. A service, therefore, of a copy of
ple ex rel. Dailey agt. Livingston, 79 a referee's report, and notice of
N. Y., 280.)

filing, did not operate to limit the

time to serve a case or exceptions. 3. This court can only review judg- (Id.)

ments and grant new trials for errors of law; and such errors 11. The practice, in this respect, must be pointed out by excep- was not changed by the provision tions taken at a proper time. of the Code of Civil Procedure (Stundard Oil Co. agt. Amazon Ins. (sec. 994), providing that excepCo., 79 N. Y., 506.)

tions, taken after trial, may be

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taken “at any time before the inserted should be granted as a expiration of ten days after ser- matter of course - a return made

* of a copy of the by a sheriff in pursuance of an decision of the court, or report of order, from which an appeal has the referee, and a written notice of been taken, should be canceled if the entry of judgment thereupon.' the order be reversed on the (Id.)

appeal. (Benedict Manufacturing

co. agt. Thayer, 21 Aun, 614.) 12. While, under this provision, ex

ceptions may be taken at any time 3. After certain property of one after trial they are not required to Paine had been levied upon under be taken until ten days after notice

an execution, issued upon a judgof judgment; and although no pro

ment_recovered against him by vision is made as to time for serv

one Bagley, and advertised for ing the case, as the case is required

sale, a question arose to contain the exceptions (Code of

whether an engine, boiler, and Ciril Procedure, sec. 997), it need

certain machinery so levied upon, not, and cannot be served until

were real or personal property after the exceptions are framed;

Thereupon it was agreed by and and the party cannot be put in de

between Bagley, Paine and the fault for not serving a case con

sheriff, that the same should be, taining them, before the expira

and the same were treated and tion of the time allowed

sold as personal property; the framing them. (Id.)

judgment creditor buying the

same, and also the real estate, re13. The exceptions referred to in said

lying upon the said agreement. provision are not simply those Thereafter, and before the expirataken on the trlal. (Id.)

tion of the time to redeem the

real estate so sold, the plaintiff, 14. The attention of the court must who had recovered a judgment be called to the precise point in

against Paine after the said sale, tended by an exception, otherwise

redeemed the said real estate from it will not avail. (Schile agt. the same, and took a deed thereof Brokhahus, 80 N. Y., 615.)

from the sheriff. The said boiler and machinery were conveyed to

the defendant by a purchaser from EXECUTION.

Bagley, to whom the same bad

been voluntarily surrendered by 1. In an action to recover damages Paine before the recovery of the

for a conversion of personal prop- second judgment. In an action erty, the costs exceeded the ver by the plaintiff to recover the said dict recovered by the plaintiff, and articles, on the ground that they a judgment for such excess was formed part of the realty, held, entered in favor of the defend- that Bagley having purchased the ant:

same in reliance upon the said Held, that as the judgment was agreement, Paine was estopped, recovered in an action for a tort, as against him, from claiming the plaintiff could be imprisoned that they were part of the realty. under an execution against his (Benneti agt. Bagley, 22 Hun, 408.) person, issued thereon. (Phil brook agt. Kellogg, 21 Hun, 238.) 4. That the plaintiff, by redeeming

under his subsequently recovered 2. Against the person not ren- judgment, acquired no greater

dered void by the omission of a rights than his debtor had. (Id.) clause requiring the sheriff to return it within sixty days - an 5. The plaintiff claimed that the order allowing such a clause to be sale of the personal property was

Digest.

void, because it had been sold in malt when directed by S. & G., bulk, instead of in parcels:

who were to have the increase. Held, that he could not in this $. & G. agreed to accept plaintiffs’ action question the regularity of drafts in payment for the purthe sale on that ground. (Id.) chase of the barley," or to furnish

satisfactory notes. At the close of 6. The plaintiff, having been ar

each month plaintiffs were to furrested by virtue of an execution

nish a statement of the amount against his person, issued upon a

malted, and on presentation S. & judgment for costs recovered by G. agreed to pay the price for the defendant herein, moved for

malting. S. & G. also agreed to and obtained, at special term, an

pay interest, exchange and insurorder setting the execution aside

ance on the barley and malt from unconditionally, which order was,

the time the barley was paid for upon appeal, reversed by the gen

by plaintiffs until the malt was deeral term, but affirmed by the

livered. Plaintiffs were authorcourt of appeals. After the grant

ized to retain and hold as security, ing of the order by the special

after June first, a sufficient amount term, the plaintiff commenced,

of the malt to pay any notes or and is still prosecuting, an action

drafts then unpaid. In an action against the defendant for false im

for malt manufactured under the prisonment. After the affirmance contract, but not delivered or paid of the order of the special term

for, which had been levied upon by the court of appeals, the de

by defendant, as sheriff, under and fendant moved to have it so modi.

by virtue of an execution against fied as to make the relief thereby

S. & G.: granted conditional upon the

Held, that the legal title in the plaintiff stipulating not to bring

malt was in the plaintiffs until an action for false imprisonment,

paid for, and that S. & G. had no or to continue the action already

leviable interest therein. (Tuthill brought therefor:

agt. Bogart, 79 N. Y., 215.) Held, that the motion was properly denied. (Catlin agt. Adirondack Co., 22 Hun, 493.)

EXECUTOR AND ADMINIS

TRATOR 7. Notwithstanding a levy under an

execution upon his personal prop. 1. An action can be maintained by erty, the judgment debtor remains a creditor against an administraowner; and can convey title, sub- tor to recover the amount of ject to the lien created by the exe- bonds of the intestate, the pay. cution. (Mumpher agt. Rushmore, ment of which are secured by 79 N. Y., 19.)

mortgages executed by him upon

real estate, and the fact that the 8. An assignee for the benefit of creditor is the owner and holder

creditors, of the debtor, acquires of mortgages upon lands situated a title subject to such lien, good in the state of New Jersey, given against all persons until the as- as collateral security to the bonds, signment is impeached for fraud. is no defense to the suit. The pro(Id.)

visions of 1 Revised Statutes, 749,

section 4, is no bar to such action. 9. Plaintiffs entered into a contract (Thompson agt. Sullivan, ante, 71.)

with $. & G., by which the former agreed to malt for the latter 25,000 2. An executor must exercise due bushels of barley from October 1, diligence in the making of loans 1875, to June 1, 1876, at a price to protect himself from personal specified. Plaintiffs were to pur- liability for losses. (Savage agt. chase the barley and ship the Gould et al., ante, 2:7.)

Digest.

8. The taking second mortgages and sole acting executor of his father

reliance upon the judgment of (who with plaintiff was co-execuothers not such diligence. (ld.) tor of said Price), for an account

ing and damages and other relief, 4. When mortgages so improperly alleging that defendant's testator,

taken are foreclosed and bought in who, as such co-executor, took the by him for the estate, executor is exclusive control and management liable for costs, taxes, &c. (Id.) of Price's estate, committed vari.

ous wrongful acts, set forth, in 5. Commissions allowed to a trustee relation theretu, imperiling it;

out of trust funds by mortgagees, charging misconduct in relation to or to his attorney, when the trus- said estate on the part of defendtee is to share therein, remain the ant since the death of his father, funds of the estate and are to be the books and vouchers in relation accounted for as such. (Id.) to said estate having then come

into his possession; and setting up 6. That some service was rendered that the widow and children of by the attorney will not alter this

plaintiff's testator, to whom said rule when the amount is mani.

testator devised the income of his festly excessive, as compensation

estate during his children's miand the burden is upon the execu

nority, the principal to be then tor to establish such value. (Id.)

paid to them, are still living and

of full age: 7. Delegation to others the exercise

Held, overruling demurrer to

the complaint, that an executor due from a trustee of his judg. ment is evidence of incompetency.

not only has the right to call his

co-executor to account in a suit in (Savage agt. Gould et al., ante, 238.)

equity, but a foreign executor may

be held amenable to like authority 8. So is the investing of trust funds

to prevent either a complete or on second mortgages and conver

partial failure of justice, and to sion of good securities for rein

maintain and enforce a trust; devestment. (Id.)

fendant being accountable for his

testator's misconduct to the extent 9. Surrogates finding that the taking

of the latter's assets in his hands. of commissions on loans made by

(Price agt. Brown, ante, 511.) a trustee or by his partner for him, is evidence of dishonesty warranting a removal, approved. 14. The complaint states a sufficient (Id.)

cause of action under section 484

of the Code. (Id.) 10. Emerson agt. Bowers (4 N. Y., 449) distinguished. (ld.)

15. The case not being one for a final

accounting, the widow and devi11. Surrogate may remove testa- sees of Price are not necessary

mentary trustees (Contra : Blake parties, and if necessary they may

agt. Sands, 3 Redf., 168). (Id.) be brought in. (Id.) 12. Chapter 79, Laws 1873, giving 16. As the causes of action stated in

surrogates power to remove ex- the complaint all arise out of one ecutors for dishonesty construed, transaction - the alleged breach with chapter 482 of 1871, as giv- of trust of defendant's testator ing similar jurisdiction over testa- they have not been improperly mentary trustees. (Id.)

united. (Id.) 13. The plaintiff of surviving ex. See STREET OPENINGS.

ecutor of George J. Price, sues Matter of Opening Sixty-seventh defendant individually, and as Street, ante, 264.

Digest.

See Costs.

Murphy agt. Travers, ante, 301.

neous (Collender agt. Phelan, 79 N. Y., 366.)

17. An administrator may avail him- | 3. To sustain an exception to the re

self of the defense of the statute fusal of a referee to find facts as of limitations upon the hearing of requested, it is incumbent upon a disputed claim before a referee, the party to show that the matewithout having pleaded it. (Con- rial facts so requested to be found verse agt. Miner, 21 Hun, 367.) were established by uncontrovert

ed evidence, and that if found 18. The rendering of an account to a they would have affected the re

surrogate by an executor or ad- sult. (Stewart agt. Morss, 79 N. Y., ministrator, and the settlement of 629.) the account after it has been rendered, are separate and distinct 4. No question can be raised in this proceedings. (Remington agt. court upon a matter of fact, in a Walker, 21 Hun, 322.)

case tried by a referee, as to which no facts were found by the referee,

or requested to be found. (Id.) FEES.

See SHERIFF.

FORCIBLE ENTRY AND Little et al. agt. Coyle et al., ante,

DETAINER. 76.

1. In proceedings for forcible entry 1. Under section 96 of chapter 335 and detainer under title 2 of chap

of 1873 - providing that no officer ter 17 of the Code of Civil Proof the city of New York should cedure, the main question for dehave or receive to his own use termination is whether the party any fees, perquisites or commis- charged entered by force upon sions, or any percentages, but that one, having previously a peaceaevery such officer should be paid ble possession, under claim of a fixed salary, and that all the right, and whether the person fees, percentages and commissions whose possession was invaded has received by him should be the been held out by force. (Kelly property of the city — it is no de- agt. Sheehy et al., ante, 439.) fense to an action brought to compel one of the city officers to 2. These provisions do not cast upon account for the fees received by the magistrate the burden of exhim, that no salary has ever been amining and determining conflictfixed or attached to his office. ing titles to real estate. (Id.) (Mayor, &c., agt. Kent, 21 Hun, 483.)

FOREIGN CORPORATION.

FINDINGS OF LAW AND FACT. 1. Where plaintiffs, residents of this

state, have a cause of action 1. In a case tried by the court, a against defendants, a foreign cor.

finding of fact, without evidence poration, arising upon the sale and to support it, if excepted to, pre- delivery of personal property sents a question of law subject to made by their brokers, à service review in this court. (Sickles agt. upon the president of such cor. Flanagan, 79 N. Y., 224.)

poration while passing through

this state was sufficient to com2. To reverse the conclusions of law mence a suit, although his pres

of a referee, it must appear from ence here had no relation whatever the facts found that they are erro- to the corporation or to bis official

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