Digest. 8. Upon the appearance of a debtor before a judge, in pursuance of an order for his examination in proceedings supplementary to execution, he admitted that he had in his possession money and property sufficient to satisfy the judg ment, and requested a postponement to enable him to apply the same upon the judgment. The judge thereupon made an order reciting the facts, and granting him until a day named to pay the judgment with interest, and the costs, and providing in default thereof that he be adjudged guilty of a willful contempt; it further ordered and directed that in that case he pay to the sheriff a fine of $384, and be imprisoned until the payment thereof, and that a commitment issue to carry this judgment into effect: Held, that the defendant could only be convicted of contempt upon the return of an attachment or an order to show cause, and that the court could not thus summarily declare the consequences of a disobedience to its order. (Tinker agt. Crooks, 22 Hun, 579.) 9. To authorize the court to punish a party for contempt in proceedings supplementary to execution, in refusing to pay over money or property in pursuance of its order, it must appear that the specific property or sum of money was, at the time of the service of the order for his examination, in his possession or under his control. (Id.) 10. Before her dower has been assigned to her, a widow has no assignable estate or interest in the lands of her deceased husband, nor has she any estate or interest therein which will pass to a receiver (appointed in proceedings supplementary to an execution, issued upon a judgment recovered against her) by a conveyance made by her to him in pursuance of an order of the court by which the receiver was appointed. (Payne agt. Becker, 22 Hun, 28.) 11. A defendant who has appeared before a referee and been examined, in pursuance of an order made in proceedings supplementary to execution, is entitled to a written notice of an application for the appointment of a receiver; a verbal notice that such an application will be made, given at the close of the examination, is not sufficient. (Ashley agt. Turner, 22 Hun, 226.) 12. Under section 202 of the Code of Procedure, supplementary proceedings cannot be instituted where a transcript of a justice's judgment for less than twenty-five dollars, exclusive of costs, has been filed, and an execution issued thereon has been returned unsat isfied. (Wolf agt. Jordan, 22 Hun, 108.) SUPREME COURT. 1. The supreme court of this state has no jurisdiction to declare and adjudge the construction to be given to a will, duly admitted to probate in this state, which contains no trusts. (Wager agt. Wager, 21 Hun, 93.) 2. Where a contest has arisen as to the validity of a will, and an appeal has been taken from a decree of the surrogate, admitting the will to probate, but rejecting the codicils thereto, pending which the funds of the estate have, by the consent of the parties, been deposited with him, the supreme court has no power to make an order directing the surrogate to pay over to the executors or their counsel a specified sum of money, to be used and expended by them in the prosecution of the suits relating to the estate. (Swenarton and ano. agt. Hancock and ano., 22 Hun, 43.) SURETIES. Digest. 1. The plaintiff in an action, being a non-resident, was required by an order, made on the application of the defendant, to file a bond as security for the costs of the action, and pay ten dollars costs of the motion, within ten days. Within that time the plaintiff filed the bond, but neglected to pay the costs. Thereafter, on the defendant's application, the complaint was dismissed, and a judgment for the costs entered in his favor. In an action brought by him against the sureties to the said . bond, to recover the costs of the action, held, that by procuring a dismissal of the complaint, the defendant, in legal effect, refused to accept the bond, and that the same never went into effect or became operative. That the sureties were not liable thereon, and that the action could not be maintained. (Remington agt. Westermann, 21 Hun, 440.) 2. When an accounting by the guardian is not a prerequisite to an action against his sureties when no demand is necessary before bringing an action. (See Girvin agt. Hickman, 21 Hun, 316.) 3. On the hearing of an unsuccessful application to dissolve a temporary injunction granted in this action, the defendant's counsel confined his objections to alleged defects in the plaintiff's papers, and did not use affidavits relating to the merits of the action, which he had previously prepared. Upon the trial of the action the complaint was dismissed. Upon a reference ordered to ascertain the damages sustained by reason of the injunction: Held, that the sureties to the undertaking were not liable for the costs and expenses of the unsuccessful application to dissolve the injunction. (Langdon agt. Gray, 22 Hun, 511.) 4. Where, upon an appeal to the general term, the appellant, in order to stay proceedings during the pendency thereof, gave a joint undertaking with two sureties, one of whom thereafter became insolvent and died: 5. Held, that upon the affirmance of the judgment appealed from, the surviving surety was liable to the plaintiff for the amount secured by the undertaking. (Comins agt. Pottle, 22 Hun, 287.) Where, upon an appeal to the court of appeals from an order granting a new trial, the court affirms the order, and renders a judgment absolute in favor of the respondents, in pursuance of section 194 of the Code of Civil Procedure, the sureties upon the undertaking, given by the appellants, are liable for all the costs in the action, and not simply for those incurred by the appeal to the court of appeals. (Burdett agt. Lowe, 22 Hun, 588.) 6. The insolvency of one of the sureties to an undertaking given by the plaintiff, upon procuring an injunction, furnishes no ground for the granting of an order staying generally all proceedings on the part of the plaintiff in the -action; the order should direct that the injunction be dissolved, unless the plaintiff file a new undertaking, within a specified period. (Randall agt. Carpenter, 22 Hun, 571.) SURPRISE. 1. A motion for a new trial on the ground of surprise cannot be made upon the minutes of the justice before whom the action was tried. (Argall agt. Jacobs, 21 Hun, 114.) TRADES UNION. 1. The orderly and peaceable assembling or co-operation of persons Digest. employed in any profession, trade or handicraft for the purpose of securing an advance in the rate of wages or compensation, or for the maintenance of such right, is now permitted by statute (Chapter 19, Laws of 1870). (Johnston Harvester Company agt. Meinhardt, ante, 168.) 2. This statute does not, however, permit an association or trades union, so-called, or any body of men in the aggregate, to do any 6. act which each one of such persons in his individual capacity and acting independently had not a right to do before the act was passed. (Id.) 3. This act does not shield a person from liability for his action in intimidating or coercing a fellow.laborer so that he shall leave his employer's service. Such conduct is, in its nature, a trespass upon the rights of business of the employer. (Id) 4. If he compels by assault or violence, by threats, by acts of coercion, a fellow-craftsman to leave the employ of another, he commits an offense against the rights of such person which is hardly distinguishable from an act which should itself injure or destroy the product of that man's labor. It is a direct injury to property rights and may be regarded as the sole proximate cause of such injury, for the laborer in such cases has not freedom of action and cannot himself be deemed to take any part in the transaction. (Id.) 5. On a motion in behalf of plaintiff for an injunction against the defendants, who are members of a trades union known as the "Iron Moulders' Union," to restrain them from interfering with the business of the plaintiff, or intermeddling with any person in the employ, or anyone with whom the plaintiff is negotiating to enter into such employment, the facts showed a 7. combination of the defendants and an enticement by them of laborers from the plaintiff's shops, and others who were about to enter the employ of the plaintiff, by means of arguments, persuasion and personal appeals, accompanied by payment of traveling expenses to other localities: Held, that the laws of this state do not permit an injunction to be granted for such a cause. (Id.) There being no sufficient evidence of violence, force or intimidation or coercion on the part of the defendants against the plaintiff's laborers, the position that a confederation of persons to entice away workmen or servants from the plaintiff's employ is an unlawful act, and may be restrained by injunction is untenable. (Id.) Although it is the duty of courts and of peace officers to see to it that such controversy shall not result in breaches of the peace, or in such acts as may tend to breaches of the peace, and to hold alike the employer and the employed to the payment of damages for any violation of contract, and to responsibility for any acts which immediately and in a legal sense affect the rights of either, yet the court cannot go beyond preventing breaches of the peace. (Id.) TRIAL. 1. In the absence of any motion or act, on the part of a defendant, upon the trial of an action from which an assent to a decision of the case by the court, and a waiver of the right to go to the jury may be implied, an exception to a direction of a verdict for plaintiff is sufficient to present the point on appeal, that there were questions of fact for the jury; it is not necessary to request the submission of any such fact. (First Nat. Bank of Springfield agt. Dana, 79 N. Y., 108.) Digest. cured by the undertaking. (Comins agt. Pottle, 22 Hun, 287.) VENUE. 1. Where the place of trial of an ac- Held, that the action, on application of defendant, should be retransferred to Rockland county, as well for the public interests as for the private interests of the parties. (Abrahams agt. Bensen, ante, 208.) WILL. 1. Though where a trust estate created by will provides for accumulations for the benefit of adults as well as minors, it is void under the provisions of the Revised Statutes yet, where an annuity to the widow, provided for under this trust estate is also charged upon the real estate, that survives the failure of the trust. (McCormack agt. McCormack, ante, 196.) 2. Such annuity, however, is subject to a proportional deduction in favor of an after-born child, who takes as if the father died intestate. (Id.) 8. Where the testator devised real estate to his wife for life, and directed that upon her death it should be sold and the proceeds distributed among his three child ren or their legal representatives, the interest vested in each of them as personal estate, and the share of a daughter who died before and that of a son who died after the widow, passed to their next of kin, so that, although it is plain the testator had no intention the children of the half blood should receive any portion of his estate, they must be included in the distribution. (Freeman agt. Smith et al., ante, 311.) The testatrix devised two lots and a gore "on the southerly side of Forty-ninth street, near Eighth avenue." Extrinsic evidence upon the trial of the action for construction of the will showed that testatrix owned no property on Fortyninth street, but did own property on One Hundred and Forty-ninth street answering fully, in other respects, the terms of the devise. Extrinsic proof showed further that persons living above One Hundredth street drop the One Hundred and designate the lot by the remaining figures: Held, that the devisee under the will takes the two lots in question. (Peters agt. Porter et al., ante, 422.) 5. It is entirely proper to resort to extrinsic proof to explain a latent ambiguity of this nature as to the subject of the devise, and to make clear the intention of the testatrix. (Id.) WITNESS. 1. Quare. Whether, if it be shown that an incompetent witness was sworn and gave testimony before the grand jury, the law does not presume that testimony to defendant's injury was given by such witness and cast the onus of showing the contrary upon the public prosecutor? (The People agt. Briggs, ante, 17.) 2. Under section 2 of chapter 782 of the Laws of 1876 a wife is not a |