text:
    Abram T. Kerr et al., Resp’ts, v. Anna Dildine, Adm’rx, etc., Impl’d, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Demurer—When in default—Right to appeal.
    Defendant duly served and argued his demurrer, which was overruled and interlocutory judgment entered with leave to answer within twenty days. Defendant did not appeal from the interlocutory judgment nor answer. Plaintiffs moved at special term for a settlement of the final judgment, which motion was opposed by defendant. Pinal judgment was entered by plaintiffs, and defendant appealed. Held, that the defendant had not been in default at any stage of the action; the appeal was well taken, and brings up for review both the final and interlocutory judgments.
    Appeal by the defendant from a final judgment entered in accordance with the direction of an interlocutory judgment overruling the defendant’s demurrer to the plaintiff’s complaint; by which appeal, as indicated by her notice, the defendant intended to bring up for review the interlocutory judgment also.

      DeM. Page, for app’lt; W. F. Mackey, for resp’ts.
   Dwight, P. J.

The action was brought by the plaintiffs, as judgment creditors of Edward P. Kerr, against him and Zachariah Dildine, to set aside a chattel mortgage executed by Kerr to Dildine, as fraudulent and void as against the plaintiffs’ judgment and the execution thereon issued, and in aid of such execution. The defendant Kerr made no defense or appearance in the action. The defendant, Zachariah Dildine demurred to the complaint on the ground, among others, that it did not state facts sufficient to constitute a cause of action. The issue of law thus joined was tried at special term and an order was made overruling the demurrer and directing judgment thereon in favor of the plaintiffs, but with leave to the defendant Zachariah Dildine to withdraw his demurrer and answer over in twenty days on payment of costs; and an interlocutory judgment was entered accordingly which directed that the final judgment, to be entered in case the defendant did not answer, should be settled by the court

The defendant, Zachariah Dildine, did not appeal from the interlocutory judgment, nor pay the costs, nor serve an answer to the complaint, but, before the entry of final judgment, he died, and the defendant, Anna Dildine, as administratrix of his estate, was substituted for him as defendant in the- action.

Subsequently, the plaintiffs moved at a special term, held by the same judge who granted the interlocutory judgment, for a settlement of the final judgment to be entered in the action, which motion, as the judgment recites, was opposed by counsel for the defendant, and the final judgment as thereupon settled by the court, was entered by the plaintiffs. From that judgment this appeal was taken.

The objection that the appeal will not lie because the judgment was taken by default, is not at all tenable. The defendant has not been in default at any stage of the action. He duly served and argued his demurrer and appeared to oppose the entry of final judgment His defense has always been on the law, and he served no answer, because he had no answer to make to the facts as alleged in the complaint. Those facts were all admitted by his demurrer, and they remain admitted for all the purposes of the action. His sole pleading was his demurrer, and upon that he insists. He was not required to appeal from the interlocutory judgment; he. had a right to reserve his appeal until the final judgment was entered, Code of Civ. Pro., § 1316, and there were manifest advantages in doing so. The final judgment was not taken by default; on the contrary, the defendant appeared and opposed the application therefor. In the cases principally relied upon by the respondent, there was not only failure to answer but failure to oppose the application for judgment, so that in those cases judgment was in fact taken by default Flake v. Van Wagenen, 54 N. Y., 25; Innes v. Purcell, 58 id., 388; Greenleaf v. Brooklyn, etc., R.. R Co., 37 Hun, 436.

But the practice adopted by the defendant is sustained by affirmative authority. De Silver v. Holden, 6 Civ. Pro. Rep., 121 ; Dick v. Livingston, 41 Hun, 455 ; 4 N.Y. State Rep., 202 ; Sheridan v. Sheridan El. L. Co., 38 Hun, 396 ; Patterson v. McCunn, id., 531; Smith v. Rathbun, 88 N. Y., 660; Raynor v. Raynor, 94 id., 248. There can be no question but that the appeal was well taken in this case, nor that it brings up for review the interlocutory judgment which overruled the defendant’s demurrer, and held the facts stated in the complaint sufficient to establish a cause of action in favor of the plaintiffs against the defendant, Zachariah Dildine.

That question we regard as already decided in this court adversly to the plaintiff’s contention, by the decision rendered in the same action, on an appeal by the defendant from an order denying his motion to vacate a preliminary injunction granted therein. The decision is reported in 6 N. Y. State Rep., at page 163. In that case the opinion of the court by Bradley, J., considers the question in two aspects: (1) whether the allegations of the complaint show the chattel mortgage in question to have been void as to creditors from its inception, and, therefore, the legal title to the property, as to creditors, remained in the judgment debtor; and (2) whether they show an interest in the property remaining^ in the mortgagor which could be reached by his creditors in equity.

Both of these questions were answered by the court in the negative. In respect to the first question it was held that, _so fiar as appeared by the complaint, “ the mortgage was valid in its inception as against creditors,” and could not be set aside as fraudulent It was also held with equal distinctness that a cause of action was not made out in the other aspect of the case for the want of an allegation that an execution had been returned unsatisfied. The language of the opinion, on-that subject, is as follows; “The facts as alleged by the plaintiffs seem to go in support of an equitable remedy and relief. But to support an action to reach equitable interests or assets, which are not the subject of levy and sale by execution, the remedy at law by its ordinary process must be first exhausted. This can be evidenced only by the return of execution unsatified, which for the purpose of such equitable remedy is a condition precedent; ” citing Estes v. Wilcox, 67 N. Y., 264, and Adee v. Bigler, 81 id., 849. These conclusions seems to cover the whole case and they must determine the law of the case, so far as this court is concerned, upon the main question raised by this appeal.

The final and interlocutory judgments appealed from must be reversed, with costs, the demurrer allowed and judgment ordered for the defendant thereon, but with leave to the plaintiffs to serve an amended complaint, within twenty days, upon payment of the costs of the demurrer and of this appeal

Macomber, J., concurs.

So ordered.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    In the Matter of the Estate of John M. Whittemore, Dec'd.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    "Will—Construction—Estate given.
    The testator gave one-half of the income of his estate to his widow for life, and the remainder of the income to his children, with a clause that if any of his children should die before the testator or his wife, leaving children, the parent’s portion should be paid to them. John, one of tha children, died childless during his mother’s life. Held, that the gift of the remainder of the income to testator’s children was absolute; it vested on the death of the testator, subject to be divested if the legatee died leaving children, and that the will of John, disposing of his share, was valid, he having died childless.
    Appeal from part of a decree of surrogate’s court of Kings county.

      Howard R. Bayne, for app’It; Henry W. Gaines, for resp’ts.
   Barnard, P. J.

The inventory shows a large estate. The trustees rented an office in Mew York for $400 a' year, half of which was charged against the estate and allowed. The estate was wholly personal, and there is no dispute as to the facts. The charge -was fair therefor in amount, and it was just that the estate should pay the amount allowed.

The compromise with the Simmons Manufacturing Company was right. An application to the surrogate for leave to compromise would have been the safest way, but the other creditors of the company all took the same proportion in their several claims. The scrip in question was not considered of full value when the inventory was taken, as no price was put upon it by the appraisers. The executors acted under the advice of counsel, and the. surrogate gives his approval to the settlement by the decree itself. He states in his opinion that if the case made had been presented to him before the compromise he would have granted his approval. The testator gave ono-half of the income of his estate to his widow for life, and the remainder of the income either directly to or to be applied for the benefit of his five children. John M. Whittemore, Jr., was one of these children, and he died while his mother’s life estate was outstanding. The will gave an absolute gift to her of one-fifth of the corpus of the estate after the life estate was ended. The will contained a clause that if any of his children should die before the testator, or before the decease of his said wife, the net income of his share to surviving children. John M. Whittemore died childless, leaving a will by which all his estate was disposed of. The gift of the residue of the estate was absolute and not contingent It vested upon the death of the testator. The gift of the one-fifth of the income during the mother’s life was also absolute and vested at once. It was liable to divest if he died leaving children. This event did not happen. John M. Whittemore died with a full title to one-fifth of the entire estate, with the right of the testator’s widow to have one-half of the income therefrom during her life. It follows that the appellant has no interest in the income on John M. Whittemore, Jr.’s share during the widow’s life. If John M. Whittemore had lived, he would have taken the income. If he had died leaving children, they would take the income on the father’s fifth. If he died without child or children, the right to the income during the widow’s life would attach to the title to the legacy itself, and that passed by the will of John M. Whittemore, Jr.

The decree of the surrogate should therefore be affirmed, with costs.

Dykmajst and Pratt, JJ., concur


text:
    Court of Appeals.
    Filed June 2, 1891.
    Christian Eberspacher, App’lt, v. Leopold Bohm, Resp’t.

      Edward W. S. Johnston, for resp’t.
   Order affirmed, with costs, on default of appearance. All concur.

Affirming 33 N. Y. State Rep., 792.


text:
    Julius P. Chesebrough, App’lt, v. Daniel D. Conover, Resp’t.
    See 36 N. Y. State Rep., 644.

      Lewis Sanders, for app’lt; Austen G. Fox, for resp’t.
   Appeal dismissed, with costs. All concur.


text:
    The People v. E. Remington & Sons. In re Claim of Ilion Nat’l Bank.

      Wm. Kernan, for app’lt; A. M. Mills, for resp’t.
   Order affirmed, with costs, on opinion below. All concur,

Affirming 36 N. Y. State Rep., 577.


text:
    The People ex rel. The Society of the New York Hospital, Resp't, v. Elijah Purdy et al., Assessors, App'lts.

      Wm. L. Snyder, for resp’t; W. Popham Platt, for app'lts.
   Order affirmed, with costs, on opinion below. All concur

Affirming 84 N. Y. State Rep., 893.


text:
    Loring R. Millen et al., Resp'ts, v. John C. Fogg et al., App’lts.
    See 37 N. Y. State Rep., 366.

      James G. Janeway, for resp’ts; L. J. Morrison, for app’lts.
   Appeal dismissed, with costs. All concur.


text:
    Jacob Rieser, App’lt, v. Ernest P. Plath, Adm’r, Resp’t.

      Edward W. S. Johnston, for app’lt; H. M. Gescheidt, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 36 N. Y. State Rep., 34.


text:
    Chas. U. Wing, Resp’t, v. Belnado De La Rionda et al., App’lts.

      Chas. H. Otis and Edward M. Shepard, for resp’t; Oliver J. Wells and G. E. Waldo, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 37 N. Y. State Rep., 404.


text:
    Hester Bates et al., App’lts, v. Wm. H. Johnston et al., Resp’ts.

      James L. Bishop and Lewis Sanders, for app’lts; Morris S. Thompson, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 35 N. Y. State Rep., 801.


text:
    Gustavus A. Brett et al., Resp’ts, v. Grahams Polley, App’lt.

      Wm. W. Goodrich, for resp’ts; John Berry, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 34 N. Y. State Rep., 799.


text:
    Oceana A. Bancroft, App’lt, v. The Home Benefit Association of New York, Resp’t.

      Wm. G. Wilson, for app’lt; Osborn E. Bright, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 34 N. Y. State Rep., 459.


text:
    Howard N. Bailey, Resp’t, v. Simon Epstein et al., App’lts.

      Abram Kling, for resp’t; E. Countryman, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 86 N. Y. State Rep., 83.


text:
    Otto Denecke v. The Same. Henry Greenberg v. The Same. Emelia Schloss v. The Same.
   Same as above.


text:
    Thos. Adams & Co. (Limited), Resp’t, v. Saly I. Mayer, App’lt.

      W. W. MacFarland, for resp’t; David Leventritt, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 86 N. Y. State Rep., 83.


text:
    Morris Goldstein, App’lt, v. Henry Parker, Resp’t.

      S. W. Bosendale, for app’lt; H. Joseph, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 30 N. Y. State Rep., 345.


text:
    George W. Palmer, Resp’t, v. Eugene H. Conant et al., App’lts.

      P. H. Fitzgerald, for resp’t; C. D. Prescott, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 84 N. Y. State Rep., 816.


text:
    Harmon H. Hart, App’lt, v. Theodore W. Myers et al., Resp’ts.

      Michael H. Cardozo, for app’lt; A. J. Simpson, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 36 N. Y. State Rep., 641.


text:
    Patrick Phillips, Resp’t, v. The Rome, W. & O. R. R. Co. et al., App’lts.

      Joseph Mullin, for resp’t; Edmund B. Wynn, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 30 N. Y. State Rep., 41.


text:
    James H. Moran, App’lt, v. The Board of Trustees of the Village of White Plains et al., Resp'ts.

      Edgcar A. Turrell, for app’lt; H. T. Dykman and Wilson Brown, Jr., for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 35 N. Y. State Rep., 335.


text:
    Joseph Snelling, Resp't, v. The Brooklyn & N. Y. Ferry Co., App’lt.

      Chas. J. Patterson, for resp’t; James & Thos. H. Troy, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 37 N. Y. State Rep., 184.


text:
    Chas. B. De Klyn, App’lt, v. The Silver Lake Ice Co., Resp’t.

      H. Morrison, for app’lt; Wallace Macfarlane, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 36 N. Y. State Rep., 84.


text:
    Albert Kelley et al., App’lts, v. Daniel J. Sprague et al., Resp’ts.

      J. Nolle Hayes, for app’lts; Nathaniel Meyers, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 36 N. Y. State Rep., 445.


text:
    Filed June 5, 1891.
    Wm. A. Sweet v. The City of Syracuse.
    See 38 N. Y. State Rep., 607.
   No papers.

Motion to advance Nos. 153 and 331 granted, and cases to be heard on such day of next week as counsel may agree upon.


text:
    Filed June 9, 1891.
    The People, App’lts, v. Wm. J. H. Ballard et al., Resp’ts.

      J. Langdon Ward, for app’lts; Treadwell Cleveland, for resp’ts.

      See 29 N. Y. State Rep., 926.
   Re-argument ordered and case transferred to the second division for the re-argument.


text:
    Clara Isabelle Curtis et al., App’lts, v. Ann Murphy et al., Resp’ts.
    See 83 N. Y. State Rep., 799.
   No papers.

Motion to advance granted, without costs.


text:
    Mary Bradley, Adm’rx, App’lt, v. Nestor De Goicouria, Resp’t.
   No papers.

Motion for judgment of reversal under § 1298 of Code Civil Procedure granted.


text:
    Filed June 16, 1891.
    The People ex rel. N. Y. Phonograph Co., App’lt, v. Frank Rice, Sec’y of State, Resp’t.

      Noah Davis and A. L. Pincoffs, for app’lt; Chas. F. Tabor, attorney-general, for resp’t.
   Order affirmed on opinion of general term, with costs. All concur, except Finch, J., absent.

Affirming 33 N. Y. State Rep., 34.


text:
    Dennis W. Moran, Resp’t, v. George Conoma et al. In re Mayer & Simon Loeb, Purchasers, App’lts.

      James Kearney, for resp’t; F. J. Myers and S. F. Riggins, for app’lts.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 36 N. Y. State Rep., 680.


text:
    The People ex rel. Wm. H. Osborn, App’lt, v. Edward Gilon et al., Board of Assessors, Resp’ts.
    See 35 N. Y. State Rep., 991.

      Traman R. Baldwin, for app’lt; David J. Dean and George L. Sterling, for resp’ts.
   Appeal dismissed, with costs. All concur, except Finch, J., absent.


text:
    James E. Eggleston, App’lt, v. Miles Beach, Resp’t.
    See 33 N. Y. State Rep., 835.

      Henry S. Bennett, for app’lt; Aug. C. Brown, for resp’t.
   Appeal dismissed, with costs. All concur, except Finch, J., absent.


text:
    D. Hartman Taber, Rec’r, App’lt, v. Samuel Jack et al., Resp’ts.
    See 35 N. Y. State Rep., 832.

      H. B. Cone, for app’lt; M. H. Peck, for resp’ts.
   Appeal dismissed, with costs. All concur, except Finch, J., absent.


text:
    Filed June 23, 1891.
    John W. Haywood, Adm’r, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Alonzo P. Strong, for resp’t; S. W. Jackson, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 35 N. Y. State Rep , 748.


text:
    In the Matter of the Application of Edward B. Long et al., Trustees of White Plains.

      Willard Parker Butler, for app’lt; R. T. Dykman, for resp’t.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 34 N. Y. State Rep , 778.


text:
    Henry C. Bowen, App’lt, v. Wm. L. Bull, Pres’t N. Y. Stock Ex., Resp’t.

      George C. Rolt, for app’lt; Lewis Cass Ledyard, for resp’t.
   Judgment affirmed, with costs, on opinion below. All concur, except Finch, J., absent.

Affirming 85 N. Y. State Rep., 480.


text:
    Mary O’Toole, Resp’t, v. The Central Park, N. & E. R. R. R. Co., App’lt.

      James F. Higgins, for resp’t; Henry Thompson, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 35 N. Y. State Rep., 591.


text:
    Chas. S. Higgins et al., App’lts, v. Jas. D. Bell, Com’r of Police, Brooklyn, Resp’t.

      Chas. Edward Soutter, for app’lts; F. A. McCloskey, for resp’t.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 25 N. Y. State Rep., 501.


text:
    Herman Cantor, Assignee, Resp’t, v. Ferdinand Levy, one of the Coroners of New York, et al., App’lts.

      Morris J. Hirsch, for resp’t; S. F. Kneeland, for app’lts.
   Judgment affirmed; with costs. All concur, except Finch, J., absent.

Affirming 35 N. Y. State Rep., 247.


text:
    _ The People, App’lts, v. Thos. F. Wynn, Resp’t.

      McKenzie Semple, ass’t dis’t att’y, for app’lts; Wm. F. Howe, for resp’t.
   Judgment affirmed on opinion below. All concur, except Earl and Peckham, JJ., dissenting, and Finch, J., absent.

Affirming 35 N. Y. State Rep., 487.


text:
    Jennie J. Holcomb, Resp’t, v. The Town of Champion, App’lt.

      Porter & Walts, for resp’t; Mullin & Griffin, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur, except Finch, J., absent, and O’Brien, J., taking no part.

Affirming 36 N. Y. State Rep., 759.


text:
    The Mayor, etc., of New York, Resp’t, v. Mary A. Kent et al., App’lts.

      David J. Dean, for resp’t; Benjamin Yates, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.


text:
    Jas. P. Kernochan, Ex’r, Resp’t, v. The N. Y. Elevated R. R. Co. et al., App’lts.
    See 36 N. Y. State Rep., 1024.

      Davies & Rapallo, opposed.
   Motion to amend return denied, with ten dollars costs.


text:
    Thos. Kitson, Resp’t, v. Sarah F. Blake, App’lt. The Same v. Fred’k D. Blake.
    See 39 N. Y. State Rep., 45.

      Carlisle Norwood, Jr., for motion.
   Motions to dismiss.

Appeals dismissed, with costs of appeals and ten dollars costs of the motion in each case.


text:
    Orival O. Clark, Resp’t, v. John Claflin et al., App’lts. Andresen & Blatt Folding Bed Co. v. The Same. Philander Derby et al. v. The Same.
   Motion to dismiss.

The defendants deny in each of these entitled actions that the same questions only arise in them that have been considered and passed upon by this, court in the other cases just determined. The court cannot undertake, in advance of the argument, to examine the records in each to determine for itself whether such statement is borne out or not. The court shall have to do that when the cases come before it regularly, as reached for argument on the calendar. If the same questions only arise that have already been passed upon here, it may, of course, be expected they will meet with the same end.

The motion is denied, but, under the circumstances, without costs.


text:
    In the Matter of the Application of The Rochester & Glen Haven R. R. Co. to Acquire, etc.
    See 35 N. Y. State Rep., 1000.
    Motion to dismiss.

      Ivan Powers, for motion; Edward W. Maurer, opposed.
   Appeal dismissed, with costs, and ten dollars costs of motion.


text:
    Filed June 25, 1891.
    In the Matter of the Accounting of Abraham B. Valentine, Trustee.

      Thos. M. Wheeler, for app’lt; Israel Minor, Jr., for resp’t.
   Order and judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 38 N. Y. State Rep., 333.


text:
    Hattie H. Farrell, Adm’rx, Resp’t, v. Arthur J. Horgan et al., App'lts.

      Chas. Steckler, for resp’t; Edward W. S. Johnston, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 38 N. Y. State Rep., 1025.


text:
    John O. Heald, General Assignee, Resp't, v. Frank B. Van Siclen, Impl’d, App’lt.

      Henry P. Starbuck, for resp't; Geo. A. Clement, for app’lt.
   Judgment affirmed, with costs. All concur, Finch, J., absent.

Affirming 38 N. Y. State Rep., 187.


text:
    In the Matter of the Judicial Settlement of Accounts of Robert C. Reeves, Sole Acting Ex’r.

      Henry W. Bates, for app'lt; Henry J. Morris, for resp’t.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 37 N. Y. State Rep., 959.


text:
    Maggie La Manna, Adm’rx, Resp’t, v. The National Security Life & Accident Co., App’lt.

      Wm. Allan, for resp’t; D. W. Northup, for app’lt.
   Order and judgment affirmed, with costs. All concur, except Earl, J., not voting, and Finch, J., absent.

Affirming 37 N. Y. State Rep., 347.


text:
    Geo. F. Comstock, Pl'ff, v. The City of Syracuse et al., Def’ts.

      Geo. F. Comstock and Chas. H. Peck, for pl’ff; C. L. Stone and Louis Marshall, for def’ts.
   Decided upon opinion in Sweet v. City of Syracuse, 38 N. Y. State Rep., 933.

Reversing 38 N. Y. State Rep., 1021.


text:
    John Hooper, App'lt, v. The Johnstown, Gloversville, etc., Horse R. R. Co., Resp’t.

      Barnwell Rhett Heyward, for app’lt; Matthew Hale, for resp’t.
   Judgment affirmed, with costs. All concur, except Finch, J , absent.

Affirming 35 N. Y. State Rep., 503.


text:
    In the Matter of the Estate of Samuel Lyman, Deceased.

      Henry Woodward Sackett, for app’lt, Chas. E. Miller, for resp’t.
   Order affirmed, with costs. All concur, except Ruger, Ch. J., not voting, and Finch, J., absent.

Affirming 37 N. Y. State Rep., 928.


text:
    Thos. Watts, Rec’r, Resp’t, v. Franklin A. Wilcox et al., App'lts.

      Wm. F. O'Neill, for resp’t; Henry Bacon, for app'lts.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 87 N. Y. State Rep., 194.


text:
    Wm. E. Dodge Stokes, Resp’t, v. Anson Phelps Stokes and John A. Stewart et al., App’lts.

      George Richards, for resp’t; Edward W. Sheldon, for app’lts.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 36 N. Y. State Rep., 620.


text:
    John B. Devlin, Adm’r, Resp’t, v. The Mayor, etc., of New York, App’lt.

      T. C. Cronin, for resp’t; Franklin Bartlett, for app’lt.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 37 N. Y. State Rep., 508.


text:
    Ophelia J. Cuthbert, Resp’t, v. Margaret S. Ives, Impl’d, App’lt.

      W. H. Page, Jr., for resp’t; Robt. Sewell and C. Fine, for app’lt.
   Appeal dismissed, with costs. All concur, except Finch, J., absent.

See 38 N. Y. State Rep., 1018.


text:
    The Same v. A. L. Schermerhorn.
   Same as above.

See 38 N. Y. State Rep., 1018


text:
    In the Matter of the Application of Wilbur L. Paddock, for writ of Habeas Corpus, etc.

      Geo. W. McElroy, for app’lt; M. N. Kane, for resp’t.
   Order affirmed, with costs. All concur, Finch, absent

Affirming 33 N. Y. State Rep., 925.


text:
    Max Merz, App’lt, v. The City of Brooklyn, Resp’t.

      James D. Bell, for app'lt; Almet E. Jenks, for resp’t.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 33 N. Y. State Rep., 577.


text:
    In the Matter of the Application of The N. Y., Lack. & Western R. R. Co. to Appraise Lands, etc.

      Albert H. Weed, for app’lt; Franklin D. Locke, for resp’t.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 35 N. Y. State Rep., 540.


text:
    Orlando P. Dexter, App’lt, v. Warren Jos. Alfred, Resp’t.
    See 35 N. Y. State Rep., 489.

      Edward Winslow Paige, for app’lt; Wm. P. Cantwell, for resp’t.
   Appeal dismissed, with costs. All concur, except Finch, J., absent.


text:
    Isaac B. Newcombe et al., Resp’ts, v. Wm. A. Lottimer et al., Ind. and as Ex’rs, App’lts.

      Adrian H. Joline, for resp’ts; James Thomson, for app’lts.
   Order affirmed, with costs. All concur, except Pinch, J., absent.

Affirming 35 N. Y. State Rep., 614.


text:
    In the Matter of the Application of Geo. H. Stonebridge, Jr., Rec’r.

      James B. Bill, for app’lt; Chas. E. Hughes, for resp’t.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 37 N. Y. State Rep., 617.


text:
    In the Matter of the Last Will, etc., of Emily L. De Russy, Deceased.

      Abram Kling, for app’lt; Edward C. James, for resp’t.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 37 N. Y. State Rep., 646.


text:
    The People ex rel. Wm. T. Cagney, App’lt, v. Charles B. MacLean et al., Com’rs, etc., Resp’ts.

      Louis J. Grant, for app’lt; David J. Dean, for resp’ts.
   Order affirmed, with costs. All concur, except Finch, J., absent.‘

Affirming 32 N. Y. State Rep., 844.


text:
    The People ex rel. Jos. C. Higgins, App’lt, v. Hugh J. Grant, Mayor, etc., Board of Record, Resp’ts.

      James F. Higgins, for app’lt; David J. Dean, for resp’ts.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 37 N. Y. State Rep., 629.


text:
    The People ex rel. Solomon Sayles, App’lt, v. Frank T. Fitzgerald, Register of New York, Resp’t.

      Hess, Townsend & McClelland, for app’lt; David J. Dean, for resp’t.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 37 N. Y. State Rep,, 540.


text:
    The People ex rel. Thos. Cecil, Resp’t, v. The Bellevue Hospital Medical College of the City of New York, App’lt.

      Seaman Miller, for resp’t; Allan McCulloh, for app’lt.
   Order affirmed, with costs, on opinion below. All concur, except Finch, J., absent.

Affirming 38 N. Y. State Rep., 418.


text:
    Geo. V. Brower, Rec’r, Resp’t, v. Jos. D. Baucus et al., Impl’d, App’lts.

      Josiah T. Marean, for resp’t; Joseph D. Baucus and Myer Nussbaum, for app’lts.
   Order affirmed, with costs. All concur, except Finch, J., absent.

Affirming 39 N. Y. State Rep., 25.


text:
    Wm. F. Morgan, Resp’t, v. Catharine Taylor, App’lt.
   No papers.

udgment affirmed, with costs. All concur, except Finch, J., absent,

ffirming 24 N. Y. State Rep., 60.


text:
    Second Division.
    Filed June 2, 1891.
    Emma A. De Vinney, App'lt, v. Hannah M. Corey et al., Resp’ts.

      Johnson & Charles, for app’lt; M. E. & E. M. Bartlett, for resp’ts.
   Order affirmed and judgment absolute rendered against appellant, with costs. All concur.

Affirming 23 N. Y. State Rep., 308.


text:
    William Hays, Resp’t, v. The Phenix Ins. Co., App’lt.

      Wm. W. Goodrich, for resp’t; Geo. A. Black, for app’It.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 123.


text:
    Elizabeth J. Osborne, Resp’t, v. The New York Mutual Ins. Co., App’lt.

      Joseph A. Shoudy, for resp’t; Geo. A. Black, for
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 719.


text:
    Conrad Stubing, Resp’t, v. John Stubing et al., App’lts.

      Fernando Salinger, for resp’t; Leopold. Leo, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 951.


text:
    The Chester Rolling Mills, Resp’t, v. The Vessels “ Hofatcong ” and “Musconetcong,” Their Tackle, etc., App’lts.

      E. A. Brewster, for resp’t; Leon Abbett, for app’lts.
   Order affirmed and judgment absolute rendered against the appellants, with costs, on opinion in Phoenix Iron Co. v. Same Defendants, 38 N. Y. State Rep., 66. All concur, except Brown, J., not sitting.

Affirming 25 N. Y. State Rep., 702.


text:
    Emeline Gallup, Resp’t, v. James Henderson et al., App’lts.

      Brewster Kissam, for resp’t; E. Countryman and S. Jones, for
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 506.


text:
    In the Matter of the Judicial Accounting, etc., of Estate of Peter Werry. Deceased.

      C. E. Bushmore, for app’It; Wm. Vanamee, for resp’ts.
   Order affirmed, with costs to both parties payable out of the estate. All concur.

Affirming 35 N. Y. State Rep., 365.


text:
    Alfred D. Bump, Resp’t, v. Wm. Gilchrist et al., App’lts.

      S. W. Russell, for resp’t; R. Armstrong, Jr., for app’lts.
   Order affirmed and judgment absolute rendered against appellants, with costs. All concur.

Affirming 22 N. Y. State Rep., 197.


text:
    James Lyle, Resp’t, v. The Manhattan R’way Co., App’It.

      Nelson Smith, for resp’t; Chas. H. Peck, for app’It.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 549.


text:
    Emil Weiler, Resp’t, v. The Manhattan R’way Co., App’It.

      Nelson Smith, for resp’t; Chas. H. Peck, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 543.


text:
    Hermann Cohen, App’It, v. Asa Morehouse et al., Resp’ts.

      Edward C. Perkins, for app’It; J. F. Bradner, for resp’ts.
   Judgment affirmed, with costs. All concur, except Brown, J., not sitting,

Affirming 21 N. Y. State Rep., 436.


text:
    Warren Chapin, Resp’t, v. James M. Fitzgerald, App’lt.

      L. T. Yale, for resp’t; James M. Hunt, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 600.


text:
    Bridget Conklin, Resp’t, v. Wm. H. Tice, App’lt.

      Charles Haines, for,resp’t; A. H. Gleason, for app’lt.
   Judgment affirmed, with costs. All concur, except Vann, J., dissenting.

Affirming 15 N. Y. State Rep., 835.


text:
    Cynthia M. Jones, Resp’t, v. The City of Troy, App’lt.

      R. A. Parmenter, for resp’t; Martin I. Townsend, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 22 N. Y. State Rep., 276.


text:
    Philip B. Thompson, Jr., Resp’t, v. The Knickerbocker Ice Co., App’lt.

      Jno. J. Adams, for resp’t; Albert Stickney, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 581.


text:
    Henry Behrman, Surv’r, Resp't, v. Fred’k C. Linde et al., App’lts.

      Adolph L. Sanger, for resp’t; Edward S. Clinch for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 23 N. Y. State Rep., 490.


text:
    Adele Bernheimer et al., Ex’rs, Resp'ts, v. Thomas Kilpatrick, App’lt.

      Matthew Hale, for resp’ts; Wm. F. MacRae, for app’lt.
   Judgment affirmed, with costs, on opinion of the general term. All concur.

Affirming 25 N. Y. State Rep., 837.


text:
    Julius J. Frank, Resp’t, v. Edward A. Davis, App’lt.

      Julius J. Frank, for resp’t; Albert Cardozo, for app’It.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 207.


text:
    Filed June 9, 1891.
    John J. P. Read, Resp’t, v. The Bank of Attica, App’lt.
    See 36 N. Y. State Rep., 894.
   Motion to correct remittitur.

No papers.

The remittitur should be amended by changing the amount directed to be deducted from the judgment, in the event of the plaintiff consenting thereto, from $1,345.54 to $829.23, with ten dollars costs of this motion. All concur.


text:
    Filed June 23, 1891.
    Ella Tredwell, Resp’t, v. Jonas A. Lincoln, App’lt.

      Cephas Brainerd, Jr., for resp’t; Frank Moss, for app’lt.

   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 424.


text:
    The Murray Hill Bank. App’lt, v. Elizabeth Van Antwerp et al., Resp’ts.

      Samuel Untermyer, for app’lts; Wm. C. Beecher, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 21 N. Y. State Rep., 377.


text:
    Frederick Lange, Resp’t, v Peter Kearney, App’lt.

      Hathaway & Montgomery, for resp’t; Edward F. O’Dwyer, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 21 N. Y. State Rep., 262.


text:
    Filed June 25, 1891.
    Flora E. Graves, Resp’t, v. Frederick L. Santway, App’lt.

      Watson M. Rogers, for resp’t; D. Bearup, for app’lt.
   Judgment affirmed, with costs. All concur, except Vann, J., not sitting.

Affirming 85 N. Y. State Rep., 1022.


text:
    Catherine E. Palmer, App’lt, v. The Commercial Travelers’ Mutual Accident Ass’n of America, Resp’t.

      Edwin Nottingham, for app’lt; M. W. Van Auken, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 248.


text:
    Chas. M. Kittredge et al., Resp’ts, v. J. Wesley Van Tassell, App’lt.

      H. H. Hustis, for resp’ts; John B. Green, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 82 N. Y. State Rep., 76.


text:
    Wm. H. Lyon et at., App’lts, v. James M. Davis et al., Resp’ts.

      John B. Green, for app’lts; H. H. Hustis, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 32 N. Y. State Rep., 340.


text:
    John Oelerich, an Inf’t, Resp’t, v. The N. Y. Condensed Milk Co., App’lt.

      M. L. Towns, for resp’t; Wm. W. Niles, Jr., for app’lt.'
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 699.


text:
    Kate F. Brown, Resp’t, v. J. Warren Lawton, App’lt.

      Matthew Daly, for resp’t; F. II. Cowdrey, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 626.


text:
    John I. Hadcock, Resp’t, v. Wm. F. O’Rourke, App’lt.

      Geo. T. Quinby, for resp’t; James M. Humphrey, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 55.

Affirming 24 N. Y. State Rep., 841.


text:
    Albert H. Pickard, Pres’t, App’lt, v. John Simson, Resp’t.

      S. E. Graves, for app’lt; Geo. Wing, for resp’t.
   Judgment affirmed, with costs, upon opinion of general term. All concur.


text:
    Harriet D. Green, Resp’t, v. Harriet E. Griswold, App’lt.

      Geo. Walton Oreen, for resp’t; A. R. Dyett, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 23 N. Y. State Rep., 218.


text:
    Nelson Goetschius, Resp’t, v. John E. Hunt, App’lt.

      Wm. McCauley, Jr., for resp’t; Irving Brawn, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 717.


text:
    Mary E. Bolen, Resp’t, v. George F. Bolen, App’lt.

      Jacob F. Miller, for resp’t; A. J. Perry, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 165.


text:
    Denis Murphy, App’lt, v. The Board of Education in the City of Yonkers, Resp’t.

      John F. Brennan, for app’lt; J. Hampden Dougherty, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 25 N. Y. State Rep., 154.


text:
    Peter Smith, Resp’t, v. John O’Brien, App’lt.

      Francis Larkin, for resp’t; John Gibney, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 24 N. Y. State Rep., 708.


text:
    Bernard Ryan, Resp’t, v. The Syracuse, Binghamton & N. Y. R. R. Co., App’lt.

      Edmund O’Connor, for resp’t; Louis Marshall, for app’lt.
   Judgment affirmed, with, costs. All concur.

Affirming 25 N. Y. State Rep., 1038.


text:
    Supreme Court—General Term—First Department.
    Filed April 17, 1891.
    Christian H. Schultheis v. Georgiana F. Webster et al.

   Motion denied, with ten dollars costs.


text:
    Ophelia J. Cuthbert v. Margaret S. Ives, Impl’d, etc.
   Order affirmed, with costs and disbursements.


text:
    Ophelia J. Cuthbert v. Antoinette L. Schermerhorn et al.

   Order affirmed, with costs and disbursements.


author: Per Curiam.

text:
    Jean Albert Tauzeide and Charles H. Holt, Pl’ffs, v. Francois Henry Jumel et al., Def’ts.
   Per Curiam.

It is a fact established in the case that the attorneys repre-. senting all the parties were made aware, in April, 1888, that Mr. Wheeler would no longer represent Chambruu as his attorney in the proceedings. After that Chambrun acted for himself, and with the assistance of Mr. Titus as his counsel. When the copy of the judgment was served in October on Mr. Wheeler it was made with this knowledge. And it does not seem to have been intended for Chambrun, for the admission of service was not taken for him, but for Jumel and others, without anything to indicate that Chambrun was intended to be included among these others.

To defeat it, or limit the right of appeal, the proof must show clearly that what the law has for that purpose prescribed has been performed; and that has not been in that manner shown. The proceedings of Chambrun in his own behalf may have been, as they probably were, irregular. But after practically acquiescing as the other parties did in the irregularity it is too late now to take the advantage of it, which would be secured by a dismissal of the appeal. The motion will be denied, but without costs.


text:
    Jean Albert Tauzeide and Charles H. Holt, Pl’ffs, v. Francois Henry Jumel et al., Def’ts.
   Per Curiam.

The foundation of this motion to dismiss the appeals is that the necessary printed papers have not been served. Whether that is the fact depends upon the right to include Chambrun’s papers as part of the printed book. If they are to be included then the printed papers have been regularly served. It has been concluded on the motion to dismiss the appeal of Chambrun that no such service of the judgment and notice has been made as limited his time to appeal. And as that was not terminated it was not irregular to include his papers in the printed book. And this motion must be denied, but without costs.


text:
    Jean Albert Tauzeide et al. v. Francois Henry Jumel et al.

   Per Curiam.

The settled practice is not to permit cases to be placed upon the calendar after the commencement of the term, which the parties have omitted therefrom. This application is within that practice, and the motion must be denied.


text:
    The New York, Lake Erie & Western R. R. Co., Resp’t, v. The Atlantic Refining Co., App’lt.
   Motion for re-argument denied.


text:
    Filed May 15, 1891.
    The People v. James A.Barker.
   Motion denied upon stipulating to argue in June.


text:
    Louis B. Hasbrouck, Assignee, etc., of Richard D. Young, v. Emma B. Young.
   There is no authority for a motion such as this. Motion denied.


text:
    General Term—Second Department.
    Filed May 11, 1891.
    Matter of Estate of Simeon Watts, Deceased.
   Appeal dismissed and order affirmed, with costs, for not filing papers according to stipulation.


author: Dykman, J.

text:
    In the Matter of the Settlement of the Accounts of Wm. L. Denton, Ex’r, etc.
    Motion for re-argument.
   Dykman, J.

This is an application for a re-argument upon the question respecting the allowance of $500, made by the surrogate to the counsel for the respondent, and it must fail.

The question was fully examined when the case was before us and there was no oversight or misapprehension.

Motion denied, without costs.

Barnard, P. J., and Pratt, J., concur.


author: Pratt, J.

text:
    Albert C. Smith, App’lt, v. Herbert J. Fowler, Resp’t.
    Appeal from order vacating attachment.

      A. M. & G. Gard, for app’lt; M. H. Herschberg, for resp’t.
   Pratt, J.

The allegations-upon which the attachment was granted were so answered and explained by defendant that the dissolution of the attachment was proper. Not only was it made plain that there was no reason to apprehend defendant would dispose of his property to defraud his creditors, but some doubt exists as to the good faith of the original application. And much of the property taken possession of by the sheriff was exempt.

The order vacating attachment is affirmed, with ten dollars costs and disbursements.

Dykman, J., concurs.


text:
    William Watson, App’lt, v. Albert Benz, Resp’t.
    Appeal from judgment of Queens county court for defendant.
   Pratt, J.

The case of Zoller v. Smith, 45 Hun, 319; 12 N. Y. State Rep., 438, sustains the ruling of the county judge.

If any change is to be made in the rule it must be done by the legislature.

Order affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Dykman, J., concur.


text:
    The Board of Health of the Village of New Rochelle, Resp’t, v. Eugenia Valentine, App’lt.
    Appeal from judgment for plaintiff, granted at circuit, in an action to recover $100 penalty for a violation of plaintiff’s health regulations.

      Chas. H. Young, for resp’t; Chas. H. Noxon, for app’lt.
   Pratt, J.

None of the exceptions have any merit. The charge of the judge was not excepted to.

The questions are all settled by the previous decision reported, 11 N. Y. Supp., 112; 32 N. Y. State Rep., 919.

The case of Sturgis v. Spofford, 45 N. Y., 446, has no application, for the reason that the statute there construed gave a single penalty of $100, and it was pointed out by the court that it was not given for each offence.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Mary Clemens, Resp’t, v. The Society of Good Fellows, App’lt.
    Appeal from a judgment entered upon a decision made at a term where the cause was tried without a jury.

      S. M. Lindsley, for app’lt; C. Morschauser, for resp’t.
   Dykman, J.

This action is based upon a certificate issued to the plaintiff by the defendant upon the life of Patrick Durnin.

The trial was before a judge without a jury, and he has found all the facts in favor of the plaintiff which entitle her to a recovery, and the findings are supported by the evidence.

There axe no questions of law involved and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    In the Matter of the Claim of Frank Harris against the Estate of Carrie W. Harris, Deceased.
   Dykman, J.

Frank Harris was the husband of Carrie W. Harris, who died in December, 1888. After her death he presented a claim against her estate of §2,170.89, which was disputed and referred to a referee under the statute. The referee after a trial before him decided against the claim and a judgment has been entered against the claimant for costs.

The claim was entirely destitute of merit and the finding of the referee is amply supported by the evidence, and the judgment should be affirmed, with costs.


text:
    William D. Briggs, App’lt, v. Casper Lawson, Resp’t.
    Appeal by plaintiff from judgment of Dutchess county court, granted on counterclaim by defendant.

      C. Morschauser, for app’lt; Hackett & Williams, for resp’t.
   Dykman, J.

This action was based upon a contract between the plaintiff and defendant for the occupation of the farm of the latter by the former, and its object was to recover the value of certain grain.

The defendant overcame the plaintiff's claim by a counterclaim, and recovered a judgment in his favor for a balance.

The trial was in the county court, where the action was commenced, and the plaintiff has appealed to this court.

The question presented by this appeal is whether the defendant was compelled under the agreement to furnish feed for the stock on the farm during the continuance of the agreement, and our examination satisfies us that the agreement received the proper construction at the trial and that the cause was properly decided.

The judgment should be affirmed, with costs.

Barnard, P. J.,.and Pratt, J., concur.


text:
    General Term—Third Department.
    Filed May 21, 1891.
    In the Matter of the Petition of George Christie for Appointment of Trustee, etc.
   Motion to cancel order denied.


text:
    John Morehead et al., Overseers, App’lts, v. Charles Brown, Resp’t.
   Motion to go to court of appeals denied.


text:
    The People, Resp’ts, v. The Mutual Savings & Distribution Fund Association, App’lt.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Sylvester McChesney, Resp’t, v. The Panama R. R. Co., App’lt.
   Order affirmed, with ten dollars costs and printing disbursements. Mayham, J., not acting.


text:
    Samuel W. Fuller et al., App’lts, v. Owen W. Humphrey, Impl’d, Resp’t.
   Judgment affirmed, with costs.


text:
    The People ex rel. Jane Ellis, App’lt, v. The Clinton County Court et al., Resp’ts.
   Order reversed and motion for writ granted, without costs.


text:
    The People ex rel. The Troy Press Co., App’lt, v. The Common Council of the City of Troy et al., Resp’ts.
   Proceedings reversed, with fifty dollars costs and disbursements personally against the fourteen aldermen who voted for the designation.


text:
    William H. Smith, Resp’t, v. The London & Lancashire Fire Ins. Co. of Liverpool, England, App’lt.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People ex rel. J. J. Fitzpatrick, App’lt, v. The Board of Supervisors of Clinton County, Resp't.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    The People ex rel. J. B. White, App’lt, v. The Board of Supervisors of Clinton County, Resp’t.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Cornell Vosburgh, Resp’t, v. Peter G. Kemp et al., App’lts.
   Judgment affirmed, with costs.


text:
    Catherine McGovern, Adm’rx, Resp’t, v. The Central Vermont R. R. Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    Charles Oberle, Resp’t, v. The Lang Mfg. Co., App’lt.
   Judgment reversed and new trial granted, costs to abide event, unless plain tiff stipulate within twenty days to deduct from the recovery $10.66, being amount of judgment in city court; if it be so stipulated, judgment, as so modified, affirmed, with costs.


text:
    Milton F. Adams v. The Lamson Consolidated Store Service Co.
   Motion to go to the court of appeals denied.


text:
    Aaron R. Stevens et al., App’Its, v. The Union Trust Co. et al., Resp’ts.
   Order modified by denying motion to make petitioners defendants, but requiring plaintiffs to serve on their attorney notice of application for judgment or of discontinuance or other disposition of the case in like manner as if they were parties and without prejudice to a renewal of this application. No costs to either party.


text:
    General Term—Fourth Department.
    Filed May 8, 1891.
    William Williams, Resp’t, v. Edward F. Wright, App’lt.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.


text:
    Leonard Gordainer, Resp’t, v. George H. Northrup, App’lt.
   Order reversed, with ten dollars costs and disbursements.


text:
    Wilson H. Gardenier, App’lt, v. Hiram Eldred, Resp’t.
   Order modified by striking therefrom all that portion declaring the appellant guilty of misconduct and awarding an attachment, and as modified affirmed, vithout costs of this appeal to either party.


text:
    George Benjamin, Overseer, Resp’t, v. John Monroe, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John Praney, App’lt, v. Herman T. Smith et al., Resp’ts.
   Motion denied, without costs. Order affirmed, without costs


text:
    Michael McQuigan, Resp’t, v. The Delaware, Lackawanna & Western R. R. Co., App’lt.
   Order affirmed, with ten dollars costs and disbursements


text:
    Abba Richards, Adm’rx, App’lt, v. The Delaware, Lackawanna & Western R. R. Co., Resp’t.
   Judgment affirmed, with costs.


text:
    Mary E. McCowan, Resp’t, v. John Sullivan et al., App’lts.
   Judgment and order affirmed, with costs.


text:
    John B. Stanchfield. Resp’t, v. Benedict Harford, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    George F. Comstock, App’lt, v. The City of Syracuse et al., Resp’ts.
   Similar order to that in Comstock v. City of Syracuse, ante, 607.


text:
    General Term—Fifth Department.
    Filed June 2, 1891.
    The People, Resp’ts, v. Emily E. Hawes, App’lt.
   Judgment and conviction affirmed, and the case remitted to the court of sessions of Niagara county to proceed therein.


text:
    The People, Resp’ts, v. Stephen Tower, App’lt.
   Case stands over to enable respondent to obtain correction of the appeal hook.


text:
    The Rochester Railway Co., App’lt, v. William H. Robinson, Resp’t.
   Judgment appealed from affirmed, with costs, hut without prejudice to a renewal of the application on an .amended petition.


text:
    Richard D. Richards, Resp’t, v. Francis B. Allen, App’lt.
   Judgment of county court of Monroe county affirmed, with costs.


text:
    In the Matter of the Revocation of Probate of the Last Will and Testament of Robert Liney, Deceased.
   Decree of the surrogate of Monroe county affirmed, with costs to both parties payable out of the estate.


text:
    New York Common Pleas—General Term.
    Filed April 30, 1891.
    Alfred L. Bullowa, Resp’t, v. Austin Scykora, App’lt.
   Appeal from seventh district court.

Judgment affirmed, with costs.


text:
    James H. McElhinney, Resp’t, v. Gustav Franke, Impl’d, App’lt.
   Appeal from seventh district court.

Judgment affirmed, with costs.


text:
    Wm. M. Sayre, Jr., Resp’t, v. Nathan Hutkopf, App’lt.
   Appeal from first district court.

Judgment reversed, new trial ordered, costs to appellant to abide the event.


text:
    The J. Kunz Brewing Co., Resp’t, v. Louis R. Astor, App’lt.
   Appeal from tenth district court.

Judgment reversed, new trial ordered in the ninth district court, costs to-appellant to abide the event.


text:
    Jacob B. Herrman, Resp’t, v. Edw’d A. Currier, App’lt.
   Appeal from eleventh district court.

Judgment affirmed, with costs.


text:
    David J. Schiff, Resp’t, v. Caspar Iba, App’lt.
   Appeal from ninth district court.

Judgment affirmed, with costs.


text:
    Herman Leichten, Resp’t, v. Benjamin W. Davis, App’lt.
   Appeal from fifth district court.

Judgment affirmed, with costs.


text:
    Filed May 4, 1891.
    James Curran. App’lt, v. David Christie, Resp’t.
   Appeal from order of the city court.

Appeal dismissed, with costs.


text:
    Margaret Holland, Resp’t, v. Benjamin Block, App’lt.
   Appeal from tenth district court.

Judgment reversed, new trial ordered, costs to abide the event.


text:
    E. & H. T. Anthony, Resp’ts, v. Edwin Wiley, App’lt.
   Judgment affirmed by default.


text:
    Filed May 6, 1891.
    Edw’d R. Scott, Resp’t, v. The Manhattan Railway Co., App’lt
   'Appeal from judgment of this court.

Judgment affirmed, with costs.


text:
    Rowland W. Thomas, Resp’t, v. James H. Whitelegge, App’lt.
    See per curiam opinion.
   Appeal from order of this court.

Order affirmed, with costs.


text:
    John G. Wendell, Resp’t, v. Rowland N. Hazard, App’lt.
   Appeal from judgment of this court.

Judgment affirmed, with costs.


text:
    Filed May 7, 1891.
    Henry Hanson et al., App’lts, v. Patrick T. Langan et al., Resp’ts.
   Appeal from order of the general term city court affirming order of the special term denying motion for a new trial.

Order affirmed, with costs.


text:
    William Urbach, Resp’t, v. Theodore H. Mulch, App’lt.
   Appeal from judgment of this court.

Judgment affirmed, with costs.


text:
    Filed May 8, 1891.
    The DeWitt Wire Cloth Co., Resp’t, v. The N. J. Wire Cloth Co., App’lt.
   Appeal from judgment of this court.

Judgment affirmed, with leave to defendant to answer upon payment of costs to date.


text:
    Evalina K. Hollins, App’lt, v. W. J. Demarest, Resp’t.
   Appeal from judgment of this court.

Judgment affirmed, with costs.


text:
    Filed May 11, 1891.
    Clarence M. Smith, App’lt, v. The Manhattan Railway Co., Resp’t.
   Appeal from judgment of this court.

Judgment reversed, new trial ordered, costs to abide the event.


text:
    Filed May 12, 1891.
    The A. Hall Terra Cotta Co., Resp’t, v. Andrew T. Doyle, App’lt.
   Appeal from judgment on referee’s report.

Judgment affirmed, with costs.


text:
    Filed May 13, 1891.
    Elsie Hasbrouok, Resp't, v. The Manhattan Railway Co., App’lt.
   Appeal from judgment on referee’s report.

Judgment affirmed, with costs.


text:
    Filed May 14, 1891.
    Max Alexander, Resp’t, v. The N. Y., N. H. & H. R. R. Co., App’lt.
   Appeal from order of Hon. H. W. Bookstaver, J.

Order affirmed, with costs.


text:
    Clarence H. Rose, App’lt, v. Herbert S. Renton, Resp’t.
   Appeal from order reversing an order denying motion to vacate an attachment from the city court.

Appeal dismissed, with costs.


author: Daly, J. Bischoff, J.

text:
    Ellen Sullivan, Resp’t, v. The Metropolitan Life Ins. Co., App’lt.
   Daly, J.

The first defence set up in this action, as appears from the record from the court below, is breach of warranty, and the general term reversed the judgment in plaintiff’s favor because that defence had been sustained by competent testimony. There was, therefore, no misapprehension on the part of the general term.

Motion for re-argument denied, with ten dollars costs.

Bischoff, J.

The case of Edingion v. Mutual Life Ins. Co., 87 N. Y., 185, cited by counsel for respondent on this motion, has no application to the facts of this case.

Motion for re-argument denied, with costs.


text:
    Filed June 1, 1891.
    Joseph E. Hinds, Resp’t, v. James C. Kellogg, App’lt.
   Motion for re-argument or for leave to go to the court of appeals. Leave is granted to appellant to appeal to the court of appeals.


text:
    The Mayor, etc., of New York, Resp’t, v. Wm. F. Ehrsam, App’lt.
   Appeal from judgment of the third district court.

Judgment affirmed, with costs.


text:
    Charles H. Waterman, Resp’t, v. August J. Christian, App’lt.
   Motion to dismiss appeal denied, without costs, with leave to move at the special term.


text:
    Olin D. Gray, App'lt, v. The Alabama National Bank, Resp’t.
   Motion for re-argument or for leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    New York Superior Court—General Term.
    Filed March 9, 1891.
    Lawrence Lynch, Resp’t, v. The Metropolitan Elevated R. R. Co. et al., App’lts.
    Appeal by defendant from judgment entered upon findings and conclusions at special term.

      Davies & Rapallo, for app’lts; Charles Gibson Bennett, for resp't.
   Per Curiam.—Judgment affirmed, with costs.


text:
    Sigmund Oppenheimer, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    Appeal from a judgment entered on the decision of the court after a trial at an equity term.

      Davies & Rapallo, for app’lts; Leo C. Dessar, for resp’t.
   Per Curiam.—Judgment affirmed, with costs.


text:
    Mayer Altmayer, Resp't, v. The New York El. R. R. Co. et al., App’lts.
    Appeal from a judgment entered on the decision of the court after a trial at an equity term.

      Davies & Rapallo, for app’lts; Peckham & Tyler, for resp’t.
   Per Curiam.—Judgment affirmed, with costs.


text:
    Thomas O’Reilly et al., Resp'ts, v. The New York Elevated R. R. Co. et al., App’lts.
    Appeal from a judgment entered on the decision-of the court after a trial at an equity term.

      Davies & Rapallo, for app’lts; Sackett & Bennett, for resp’ts.
   Per Curiam.—Judgment affirmed, with costs.


author: Freedman, J.

text:
    Filed April 6, 1891
    Lida C. Schtwarz v. The Family Fund Society.
   Freedman, J.

The cases alleged to have been overlooked are all cases in which the general term acquired full jurisdiction over the whole case by the notice of appeal. They do not apply to the case at bar.

Motion denied.


text:
    Filed April 16, 1891.
    Nathan Bohm et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    Appeal by defendants from judgment entered upon findings and conclusions made at special term.

      Julien T. Davies and Osgood Smith, for app’lts; Charles Gibson Bennett, for resp’ts.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Peter Somers, Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.
    Appeal by defendant from judgment entered upon findings and conclusions made at special term.

      Julien T. Davies and Alexander S. Lyman, for app’lts; Charles Gibson Bennett, for resp’t.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Filed May 4, 1891.
    Alston Gerry et al., App’lts, v. Louis Cattabury et al., Resp’ts.
    Appeal by plaintiff from an order denying motion to continue injunction.

      L. Lafiin Kellogg, for app’lts; Arthur C. Butts, for resp’ts.
   Per Curiam.

Order affirmed, with ten dollars costs to abide event.


text:
    James J. Gearns, Ad’mr, App’lt, v. The Bowery Savings Bank, Resp’t.
    Appeal by plaintiff from judgment entered on verdict for defendant.

      Titus & Dowling, for app’lt; Carlisle Norwood, for resp’t.
   Per Curiam.

On account of a division of opinion of judges the judgment is affirmed, with costs.


text:
    Henry L. Meyer, Resp’t, v. The New York El. R. R. Co. et al., App’lts.
    Appeal from judgment entered upon the decision of a judge after a trial of the issues at the equity term.
   Per Curiam.

The judgment should be affirmed, with costs.


text:
    Stephen H. Olin, as Committee of the Person and Estate of Benjamin Page, a Lunatic, Resp’t, v. The Metropolitan El. R. Co. et al., App’lts.
    Appeal from judgment entered upon the decision of a judge at special term.
   Per Curiam.

The judgment must he affirmed, with costs.


text:
    William W. Thompson, Resp’t, v. The Manhattan R Co. et al., Impl’d, App’lts.
    Appeal from judgment entered on the report of referee.

      Davies & Rapallo, for app’lts; John A. Weekes, Jr., for resp’t.
   Per Curiam.

It is conceded by the counsel for appellants that the matters •on which a reversal is asked have been determined by this court adversely to the defendants.

Judgment affirmed, with costs.


text:
    Hattie H. Farrell, Adm’rx, Resp’t', v. Arthur „. Horgan et al., App’lts.
    Appeal by defendants from judgment entered on verdict of jury and from order denying mo'ion for a new trial made upon the judge’s minutes.

      Edward W. S. Johnston, for app’lts; Alfred Steckler and Charles Steckler, for resp’t.
   Per Curiam.

Judgment and order affirmed, with costs.


text:
    Maria Schwartz, App’lt, v. The Women’s Mutual Insurance and Accident Co. of America, Resp’t.
    Appeal by_ plaintiff from order setting aside judgment entered as of default and compelling plaintiff to receive defendant’s answer.

      Arnoux, Ritch & Woodford, for app’lt; John A. Kamping, for resp’t.
   Freedman, J.

It would serve no useful purpose to discuss at length the imputations of the attorneys made against each other in this case. After due consideration of all that has been urged on both sides, I have arrived at the conclusion, that the order appealed from should he modified so as to read, after the recitals contained therein, as follows, viz.:

Ordered, that upon defendant’s paying within ten days after the entry of this order, as hereby modified, ten dollars costs of motion, and at the same timeserving an answer duly verified to the complaint in this action, the judgment entered herein, as of default, by plaintiff against the defendant on the 19th day of January, 1891, be and the same hereby is vacated and set aside, and that,, upon defendant’s failure to comply with the terms of this order, the motion of' the defendant' be and the same hereby is denied, with ten dollars costs,” and that, as so modified, the order should be affirmed, without costs to either party on this appeal.

Sedgwick, Oh. J., and McAdam, J., concur.


text:
    James H. McGean, Ex’r, v. The Metropolitan El. R. Co. and The Manhattan R. Co.
    Appeal from judgment rendered at equity term.

      Davies & Rapallo, for app’lt; Roger Foster, for resp’t.
   Per Curiam.

The findings at fols. 87 and 104 are so manifestly repugnant to each other as to evidence an oversight on the part of the trial judge to which his attention should be called before a decision of the appeal. 57 N. Y. Supr. Ct., 281; 28 N. Y. State Rep., 577. The matter will, therefore, be remanded to the trial judge for such action as he deems proper (see 121 N. Y., 546; 31 N. Y. State Rep., 888), and the decision of the appeal will be reserved until the action of the trial judge is officially made known to the general term.


text:
    George P. Avert, Resp’t, v. William H. Jacob, Ex’r, et al., App’lts.
    Appeal by defendants from a judgment in favor of the plaintiff, entered upon the report of a referee.

      E. Luther Hamilton (Austen G. Fox, of counsel), for app’lts; E. H. Benn, for resp’t.
   Freedman, J.

The questions presented by the appeal bring the facts which are complicated. There is no controversy as to the law applicable to the case. The facts, and all questions arising thereon, have been fully discussed by the referee in an elaborate opinion, and a careful examination of the whole case has failed to disclose any error committed by him.

The judgment should be affirmed, with costs, on the opinion of the referee.

Sedgwick, Oh. J., and McAdam, J., concur.


text:
    City Court of Brooklyn—General Term.
    Filed April 27, 1891.
    De Lacy v. The City of Brooklyn.
   Motion denied, without costs. Van Wyck, J., not sitting.


author: Dwight, P. J.

text:
    Charles A. Griesa et al., Resp’ts, v. The Massachusetts Benefit Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Insurance (mutual)—Waiter of forfeiture.
    Where the rules of a mutual insurance company provide that the policy shall lapse if an assessment is not paid within thirty days after notice thereof, and such assessment is paid after such time and accepted with reservations and conditions, the company thereafter treating the insured as a member in unquestioned standing, it constitutes a waiver of the possible forfeiture for delay in payment of a previous assessment.
    2. Corporation—Ultra vires—Laws of 1883, chap. 175.
    Chapter 175 of the Laws of 1883 provides that where any other state shall impose any obligation upon corporations of this state doing business in such other state, “ the like obligations are hereby imposed on similar corporations of such other states transacting business in this state.” Held, that it is obligations and not prohibitions which the retalatory enactment of New York imposes upon the corporations of other states doing business here. The provision of the statute is one to be strictly construed, and when so construed the term “ obligation ” will not be held to include a limitation upon the powers of the corporations referred to.
    Appeal by the defendant from a judgment entered on the findings and decision of the court at the circuit, a jury being waived.

      J. K. Hayward, for app’lt; J. F. Parkhurst, for resp’ts.
   Dwight, P. J.

—The action was on a policy of life insurance issued to Mrs. Henrietta Griesa, of North Cohocton, Steuben county, in this state, for $1,000, payable, in case of her death, to the plaintiffs, her children. The defendant is a foreign corporation, organized under the laws of the state of Massachusetts, and having its principal office at Boston, but doing business in this state. This policy was a reinsurance issued October 5,1888, upon the surrender of a policy of $2,500, issued to the insured by the Life Benefit Society of Rochester, NT. Y., in the year 1882. The insured was seventy years old when she received the policy of the defendant and sixty-two years old when she effected the original insurance in the Rochester society.

Notice of a “ mortuary call ” or assessment of $7.50 was mailed to the insured May 1, 1889, payable June 1st, which was not paid until June 5th. A provision in the policy in reference to such assessments was as follows:

“ If the assessment is not received within thirty days from the mailing of the notice, it shall be accepted and taken as sufficient evidence that the party has decided to terminate his connection with the association, which connection shall thereupon terminate, and the party’s contract with the association shall lapse and be void and all rights thereunder be forfeited to the association; but said party may again renew his connection with the association by a new contract made in the same manner as at first; or he may be reinstated by the officers of the association for reasons satisfactory to them and upon such conditions as they may require.”

The check sent in payment of the assessment, above mentioned, was retained and collected by the defendant, and a receipt therefor was returned to the insured in the following terms:

“ Massachusetts Benefit Association, ) “Tremont Temple, Boston, Mass. . )
“Received of Mrs. H. A. Grriesa $7.50 on this 5th day of June, 1889, for Mortuary Call or assessment No. 54, on policy No. 20,500, which amount became due and payable before this day (thirty days allowed for the payment thereof having expired).
“ For non-payment of the assessment on or before the date it became due, said Certificate of Policy lapsed or expired, and the above payment being tendered after the same became due and payable, said payment is made and received, and this receipt given by the association and accepted by the member, and every person having or acquiring any interest in said policy, upon the following conditions, and not otherwise:
First. That said member is now living and of temperate habits, and is now in good health and free from all diseases, infirmities or weaknesses; otherwise said payment and this receipt and said policy shall be and is null and void.
Second. The receipt and acceptance of the above sum by the association shall not be held to waive forfeiture or expiration of membership, or to reinstate membership, or create any liability on the part of the association under said certificate, except upon fulfillment of the first condition of this receipt.
Third. The acceptance of the above sum, after the same became due, shall not establish a precedent for acceptance of future payments' to the association, nor shall any subsequent payment to the association upon said certificate impair, waive, alter or change any of the conditions of this receipt or of said certificate.
“W. Gr. CORTHELL, Treasurer.
“ Not valid unless countersigned by
“E. Olark, Cashier.”

On the 1st day of July and on the 2d day of September notices of similar calls or assessments were mailed to the insured, each of which contained the following provisions: “ The sending of this notice shall not be held to waive any forfeiture or lapse of membership if previous assessments remain unpaid;” and “ the payment of this call will be accepted by the association and a receipt given therefor, on the express agreement that no condition whatever upon which, any previous payment has been received is waived thereby.”.

Both of these assessments were duly paid.

On the 5th day of September of the same year the defendant gave the insured notice of an annual assessment in the following terms:

“Massachusetts Benefit Association, etc. u Annual Assessment.
“ Boston, September 5,1879.
Mrs. H. A. Griesa,
“Amount due, $1.50.
“ Your annual fee to meet the expenses of the Association must be paid within thirty days of date given above, at our office, in order to maintain your policy in force, which will otherwise lapse and be void.
“ The amount you pay into the 1 death fund ’ is a contribution for the families or other dependents of deceased members. Many companies charge a per cent for collecting death assessments; we do not, but pay expenses of doing the business with no charge to you except this small annual fee.
“ The sending of this notice shall not be held to waive any forfeiture or lapse of membership, if previous assessments remain unpaid.
“ Please remit promptly, and notify us of any change or error in your address.
“ Death assessments will be called on the first week-days of the following months: January, March, May, July, September and November of 1889.
“W. G. Corthell, Treasurer.
Pay now and avoid overlooking it”

It will be observed that this notice contained the provision of previous notices, saving forfeiture or lapse of membership by reason of non-payment “ of previous assessments,” which had no application to this case, because no previous assessment remained unpaid, but omitted the other clause, contained in previous notices, which was intended to provide against the waiver of any condition upon which any previous payment had been received.

The principal defense set up by the answer is based upon the non-payment of the assessment of May 1, within the thirty days named in the notice and in the provision of the policy quoted. The effect of such non-payment, if insisted upon by the association, was, no doubt, to terminate the connection of the insured with the association, and to work a forfeiture of her rights under the contract. But to receive and retain the money after the expiration of the thirty days, was an effectual waiver of such forfeiture, unless that effect was prevented by the condition attached to the receipt and its non-fulfillment The condition was that the insured was, at the date of such receipt, “ in good health and free from all diseases, infirmities or weaknesses.” The date of the receipt was June 5,1889; the proofs of loss furnished by the plaint-tiffs to the defendant show that the insured died October 31,1889, aged 71 years; that the immediate cause of death was “heart failure,” and the remote cause “ the natural decline of age, increased by an early life of hardships; ” that her health began to-be affected two or three years before her death, and that the duration of her last sickness was “over a year.” No other evidence than that contained in the proofs of loss was given on the subject of the health of the insured at the date of the receipt in question.

We think it failed to establish a non-fulfillment of the condition of the receipt All the terms employed in that condition arc relative in their signification, and are to be construed rationally, and with reference to the condition of age, health and strength existing at the time the contract was made. Peacock v N. Y. Life Ins. Co., 20 N. Y., 293. The date of the contract of re-insurance by the defendant was October 5, 1888, but little more than a year-before the death of the insured. The evidence furnished by the proofs -of loss, shows that her health began to be affected by the natural decline of age, a year or two before the re-insurance, and that even the condition of infirmity, which was called, in the proofs of loss, her “ last sickness,” had its beginning before that time.

The proofs show that she was subject to no disease, and that her only infirmities were those natural to old age, after an early life of hardship. Her age was known to the defendant when the contract was made, and it was in the course of nature that the infirmities incident to it should have increased at the time the receipt was given.

But even though the condition contained in the receipt of June 5th was not fulfilled, there was sufficient evidence, in the subsequent dealings of the defendant with the insured, that the brief delay in making that payment was excused, and its effect by way of forfeiture of the policy was waived. Notices of two other successive mortuary assessments, of July and September, were given to the insured, and the money was promptly paid. It is true that in the notices of those assessments it was declared that acceptance of payment thereof should not waive any condition upon which any previous payment had been received; but when the annual assessment for expenses of the 'association was levied in September, all such protest against waiver, except only in case of unpaid assessments, was omitted, and the insured was treated as a member of the association in unquestioned standing. This of itself, under the well settled doctrine of the cases, constituted a waiver of the possible forfeiture for delay in payment of a previous assessment Titus v. Glens Falls Ins. Co., 81 N. Y., 419; Shay v. National Benefit Soc., 26 N. Y. State Rep., 579.

The defense chiefly argued on this appeal was that of ultra vires, under the statute of Massachusetts, under which the defendant was incorporated. The first and probably sufficient objection to this defense is that it was not pleaded, especially as it was based upon the statute of a foreign state. Holmes v. Broughton, 10 Wend., 75. But there are other answers to the defense which are equally conclusive. The statute of Massachusetts referred to-(act of 1885, chap. 183, § 10), provides that “ no corporation doing business under this act shall issue a certificate or policy upon the life of any person more than sixty years of age; ” and § 1 brings 'all corporations, foreign as well as domestic, doing business^ on the assessment plan in that commonwealth, under the provisions of the same act So that the prohibition against issuing certificates to persons over sixty years of age .would apply to New York corporations of the same character doing business in Massachusetts. Thereupon counsel for the appellant call attention to the statute of New York (Laws of-1883, chap. 175), which provides that where any other- state shall impose any obligation upon such corporations of this state doing business in such other state, the like obligations are hereby imposed on similar corporations of such other state transacting business in this state,.” And the effect is claimed for this statute of prohibiting the Massachusetts corporation, doing business in this state, from insuring any person over sixty years of age.

It seeins very plain that' the statute referred to has no such effect. It is obligations and not prohibitions which the retalitory enactment of New York imposes upon the corporations of other states doing business here; and, evidently obligations to the state in the way of license fees exacted and other requirements imposed as a condition of doing business in the foreign state. People v. Fire Association of Phila., 92 N. Y., 311. The provision of the statute referred to is evidently one to be strictly construed, and when so construed the term “ obligation ” will not be held to include a limitation upon the powers of the corporations referred to.

The alleged defense of want of jurisdiction of the courts of this state to entertain an action in behalf of non-resident plaintiffs against a foreign corporation is in contravention of § 1780 of the Code of Civil Procedure, which, in its third subdivision, expressly gives the jurisdiction in question where, as in this case, the cause of action arose in this state. That cause of action arose upon the .death of the insured, at North Cohocton, Steuben county, N. Y., which was also her residence at the time the contract was made. Ithaca Fire Department v. Beecher, 99 N. Y., 429.

We find no exception in the case beyond those which raise the questions already discussed.

The judgment appealed from must be affirmed.

Macomber, J., concurs.

Judgment affirmed.


text:
    Thurlow W. Abell et al., App’lts and Resp’ts, v. Alonzo Bradner and Andrew J. Holden, Assignee, etc., Impl’d, App’lts and Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Administrator—Purchase of intestate’s property at foreclosure —Trust.
    An administrator purchased at foreclosure sale property belonging to his intestate during his lifetime, declaring that he was purchasing in the interest of the heirs and to protect interests of his own. Held, that he had as good a right to buy to protect his own interests as any stranger, and it was only because he coupled the interest of the heirs with his own in tho declaration of his purpose in buying that he became, in any sense, or to any extent, a trustee for the heirs, and in what sense and to what extent he became such trustee must depend upon the relative nature and extent of their respective interests.
    2. Same—Accountability fob rents.
    The interest of the heirs was subordinate to his, to the extent of his claims as a creditor of the estate, and he had a right to retain the title to the property until these.claims were satisfied; his possession, not being in any sense wrongful, his accountability for rents and profits must be limited to the measure of the fair rental value of the property.
    3. Jurisdiction—Supreme court—Right to inquire into administrators’ accounts.
    The supreme court has power to make a judicial enquiry into the accounts of administrators when necessary to the determination of issues involved in an action before it, even though there has been no judicial settlement of the accounts.
    4. Costs—Additional allowance—When proper.
    In an action, other than the foreclosure of a mortgage, an additional allowance can be granted only as a percentage “ upon the sum recovered, or claimed, or the value of the subject matter involved,” and when no sum is recovered and no sum claimed, and nothing in the facts found or established by the evidence from which the court could ascertain and determine “ the subject matter involved,” no additional allowance can be granted.
    Appeal by both parties from portions of an order of special term in part confirming and in part overruling the report of a referee appointed by the interlocutory judgment herein to take an account, etc., and from portions of the final judgment entered in pursuance of that order.

      A. H. Harris, for pl’ffs; James Wood, for def’ts.
   Dwight, P. J.

—The opinion of the court, delivered by Mr. Justice Barker, on a former appeal, 11 N. Y. State Rep., 246, contains a concise statement of the facts which formed the basis of the interlocutory judgment in this action, and of the principles upon which that judgment was, with certain modifications, affirmed. We refer to that opinion for a statement of the facts and principles of law involved in this case, which are no longer subject to question in this court.

By the interlocutory judgment so affirmed, it was determined that the defendant Bradner took title to the farm in question as trustee for the plaintiffs, subject to the mortgage which be gave for a part of the purchase price, and, possibly, to ^ other liens and claims held by Bradner; that Holden, his assignee for the benefit of creditors, held it subject to the same trust, and that they should unite in a conveyance of the premises to the plaintiffs on being paid the amount found due and directed to be paid to them; that in the accounting which was thereby ordered to ascertain the amount so to be paid, the defendants should be charged with the “ rents and profits ” of the premises during the time they were in their possession and credited with the value of permanent improvements made by them, and that Bradner should be credited with the amount paid by him as purchaser on the foreclosure sale, over and above the amount of the mortgage given by him as part of the purchase price. It was also directed that the referee appointed to take such accounting should ascertain the amount of certain alleged liens, or equitable liens and claims, held by Bradner on the property at the time of the foreclosure sale, by reason of the payment by him of certain judgments, which were, or would otherwise have been, liens on the property, and of interest on the old mortgages and insurance and taxes, before the foreclosure ; that the question of the allowance of such payments, or any of them, should be reserved until the coming in of the report, and that the referee should ascertain the amount of the taxes, insurance and interest on the new mortgage paid by the defendants, or either of them, since the foreclosure, and should make such allowance to either party for interest as should be just

Under the provision of the interlocutory judgment as to the “ rents and profits ” of the premises during the time they were occupied by the defendants respectively, the referee took evidence of what net profits might, or ought to have been, realized from such use and occupation, and found that Bradner, who had kept no account of the proceeds or expenses of the farm, should be charged with the sum of $1,200 a year for such profits during his occupation, over and above the school and road taxes paid by him. Also, that the defendant Holden should be charged for rents and profits with the balance of the amount actually received by him for the proceeds of the farm during his occupation, over and above the amount of all payments made by him on account thereof, of all of which he had kept an accurate account.

As against the charge to Bradner for rents and profits, as above, the referee credited him with the payment, on the foreclosure sale, over and above the new mortgage, for permanent improvements and for interest paid on the new mortgage after the sale; and, after an allowance of interest on yearly credit balances, he found due to Bradner at the date of his report the sum of $1,861.72, while the statement of the account of Holden, as assignee, showed a balance due the plaintiffs of $82.51.

The referee also found the several amounts paid by Bradner on judgments, equitable liens, interest on the old mortgage, insurance and taxes, before the foreclosure, making a total of $5,990.77. Some testimony was also received under the objection of the defendants which tended to show a considerable amount of money received by Bradner as administrator, which was applicable to the payment of the- matters embraced in the last finding, above stated, and the item of receipts of that character were stated by the referee at the request of the plaintiffs’ counsel, but were not applied as a credit in the account, for the reason that they were not embraced in the order of reference.

Exceptions to the report were filed by both parties, which were considered by the court at special term, on the motion for judgment

On the hearing of that motion the court sent the case back to the referee to find and report the fair annual rental value of the farm, and to compute the interest, to the date of his report, on the payments made by Bardner for equitable liens, etc., amounting,as above, to the sum of $5,990.77. Pursuant to that order the referee reported the fair rental value of the farm, except that portion occupied by the widow and her family, at $900 a year,- and computed the interest on the items of payment of equitable liens,_ etc., at $6,085.61, making the total of those items, with interest to the date of the report, $12,256.38.

The order of the special term made on the application for judgment charged Bradner as for rents and. profits, with the rental value, $900, so found by the referee, over and above all taxes and insurance paid by him, instead of the $1,200 a year as .found by the first report for profits which might or ought to have been realized. The result of this change in the debit and credit statement of Bradner’s account with interest on yearly credit balances, which the court caused to be restated and attached to the order, was to increase the balance of that account, due to Bradner, to the sum of $5,173.66. The order also allowed to Bradner the amount of the payments made by him of judgments, equitable liens, interest on the old mortgage, insurance and taxes before the foreclosure, as found by the referee, the question of the. allowance of which was reserved by the interlocutory judgment, as affirmed, with the interest thereon as computed by the referee, making the total above stated of $12,256.38. With these modifications the report of the referee was in all material respects confirmed, and judgment was given accordingly, with -costs to the plaintiffs to be taxed, and an additional allowance of costs of $700.

It is from that judgment that these cross appeals are taken; the objections raised by the plaintiffs’ appeal relating chiefly to the reduction of the charge for rents and profits from $1,200 to $900 . per annum, and to the allowance to Bradner of the payments of equitable liens, etc., with interest thereon, and that of the-defendants to the allowance of costs to the plaintiffs, and especially to an additional allowance of costs.

Upon the first presentation of the appeals, this court held it «necessary to a proper determination of one of the principal questions involved, that it should be informed whether, as certain evidence already taken by the referee tended to show, Bradner, as administrator of the estate of David H. Abell, the ancestor of the plaintiffs, bad received moneys which were properly applicable to the payment of the equitable liens and claims charged by him to the plaintiffs, and accordingly we made an order enlarging the reference and sending the case back to the referee to take proofs and report upon that question. His report has now come in, by which he finds, upon proofs that are entirely satisfactory, that Bradner, as such administrator, had .received, before the commencement of this action, of moneys not before accounted for, and which were applicable to the payment of the claims in question, various sums of money in excess of the moneys paid out by him as administrator, which, with interest to the date of the original report, amount to the sum of $3,386.46.

The defendants object to the consideration of the facts thus ap - pealing to the court on the ground that there has been no judicial settlement of the accounts of the administrators of David H. Abell, and that Mrs. Abell, the widow, who was joined with Bradner in the administration, is not before the court as a party to this action. We do not think th^ objection well taken. The power of this court to make a judicial enquiry into the accounts of administrators, when necessary to the determination. of issues involved in an action before it, will hardly be questioned. The fact that Mrs. Abell is not a party to the record is not necessarily fatal to such enquiry as has been made in this case. _ The whole case shows that Bradner was, in effect, the sole acting administrator of the estate. All the moneys with' which he is sought to be charged here were received by him.

There seems to have been but one account ever rendered to the surrogate, in the name of these administrators (viz.: in the year 1874), and in that the two schedules of the “ expenses of administration,” and of “ debts paid by said representatives,” are made up almost wholly, in amount, of items of payment which have been claimed by Bradner and allowed to him as charges against the plaintiffs in this action. Such being the case, we can have no doubt that for the purposes of this action and as against Bradner himself, that account may be surcharged by proof of receipts, by Bradner himself, not contained therein which are properly an offset to the payments so charged by, and allowed to him in this action.

Upon the main question in the case which was reserved by the interlocutory judgment and which was first passed upon by the order for final judgment, it is strongly urged, on the part of the plaintiffs, that Bradner should not have been allowed anything as against them for the claims which he had at the date of the foreclosure sale. We think this contention rests upon an erroneous assumption as to the character of the trust assumed1 “by Bradner.

That assumption, which pervades the argument of counsel, is variously to the effect that Bradner was a trustee ex maleficio; that’he was a trustee in his own wrong.; that he was a trustee before the sale and purchased the property of his cestui que trustent for his own benefit, and, even,' that as trustee he made the sale of trust property and purchased it for himself. ¡Neither of these’ descriptions seems to apply to the case of Bradner. He held no relation of trust to this property before the mortgage sale. As administrator of the estate of his intestate he was intrusted with the personalty only. He became a trustee of this property only by the act of .purchasing at the mortgate sale, qualified and characterized by his declaration, made at the time, which formed part of the res géstce. That declaration was that he was purchasing in the interest of the heirs and to protect interests of his own. He had as good a right to buy to protect his own interests as any stranger, and it was only because he coupled the interest of the heirs with his own in the declaration of his purpose in- buying, that he became, in any sense, or to any extent a trustee for the plaintiffs.

In what sense and to what extent, therefore, he became such trustee must depend upon the relative nature and extent of the respective interests of himself and of the plaintiffs. The interest of Bradner was that of a creditor of the deceased, entitled, the personal estate being exhausted, to sell the real estate for the payment of his debt. The interest of the plaintiffs was that of heirs, taking the real estate subject to the claims of creditors. The interests of both were subject to the mortgage, and that being foreclosed the interests of both would be cut off or confined to the surplus, if any, to be realized on the sale, unless the property were purchased for the benefit of one or both of the parties thus interested. Bradner bought for the benefit of both, and thus became a trustee for the heirs to the extent of their interest. But their interest was subordinate to his, to the extent of- his claims as a creditor of the estate, and he had a right to retain the title to the property until those claims were satisfied. Those are the claims which have been alleged and established in his favor in this action; and there would seem to be no question that they must be allowed to him, subject to such offsets as have also been established, in determining the amount to be paid by the plaintiffs as a condition of the conveyance to them of the property in question.

In the view thus taken of the nature and extent of the trust under which Bradner held the title to the property, it seems clear that his possession of it cannot be deemed, in any sense, wrongful, and consequently that his accountability for rents and profits must be limited to the measure of the fair rental value of the property. So it was held at special term, and, as we think, consistently with the facts and with abundant authority. Jackson v. Andrews, 98 N. Y., 672; Loos v. Wilkinson, 113 id., 497; 23 N. Y. State Rep., 282; New Orleans v. Gaines, 15 Wall., 624. The court at special term found that rental value to be $900 per annum over and above taxes and insurance, and with that finding we are not disposed to interfere.

The only remaining question which we feel called upon to consider is raised by the defendant’s exception to the allowance of costs to the plaintiffs, and especially of an additional allowance of costs. The award of taxable costs in actions of this character is in the discretion of the court. That discretion is, in the first instance, exercised by the trial court upon the rendering of final judgment, and although that exercise of discretion is subject to review on appeal, it is not very often interfered with, and never unless it plainly appears that the award is in violation of the equities of the case.

This is not á case in which we are disposed to question the propriety of the award of taxable costs to the plaintiffs. The award of an additional allowance stands upon quite a different footing. Though in some respects discretionary with the trial court, yet in other respects the authority to make such awards is strictly limited by the statute. Thus, in a case like this, the allowance can be granted only as a percentage “ upon the sum recovered, or claimed, or the value of the subject matter involved.” Code, § 3253, subd. 2.

In this case there was no sum recovered and no sum claimed, and the “ subject matter involved ” was the interest of the plaintiffs in the real estate in question, as that interest should be ascertained by the final judgment in the action. Weaver v. Ely, 83 N. Y., 89; Patterson v. Burnett, 23 N. Y. State Rep., 364.

Unfortunately for the plaintiffs, there is nothing in the facts found or established by the evidence in this action from which the court could ascertain and determine that such interest of the plaintiffs was of any value whatever. By the findings of the court upon which the interlocutory judgment was based, the value of the real estate in question at the time of the foreclosure sale was fixed at from $20,000 to $25,000, and there has been no subsequent finding on that subject, nor does it appear that the value of the property has appreciated since the date o£ the sale. The property is still subject to the lien of the new mortgage of $13,000, given on the sale, and the final judgment rendered at special term subjected the interest of the plaintiffs to the further burden of the payment, in order to entitle them to a conveyance of the property, of an aggregate sum of more than $17,000. These burdens greatly exceed in amount the highest possible value of the property, so far as shown by the record before us, and leave nothing for the value of the plaintiffs’ interest therein.

For the want of any ascertained basis for the computation of an additional allowance, the defendant’s exception to such allowance must be sustained.

The order and judgment appealed from must be modified by deducting from the amount allowed to the defendant Bradner, for liens, etc., paid by him before the foreclosure sale, the sum of $3,386.46, found by the referee under the order of this court as a proper offset thereto, and by striking out the additional allowance of costs to the plaintiffs, and as so modified affirmed, without costs of this appeal to either party.

Macomber, J., concurs.

Judgment and order affirmed, as modified.


text:
    The People ex rel. Galusha B. Balch, App’lt, v. The Mayor, etc., of the City of Yonkers, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Veterans—Laws 1887, chap. 464—Health officer within the exceptions.
    Section 1 of chap. 464 of the Laws of 1887, providing that “in every public department and on all public works, * * * and of all the cities, towns and villages thereof, * * * wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment, * * ® provided they possess the business capacity necessary to discharge the duties of the position involved,” does not apply to positions independent and separate and not subordinate to any other department of the city government, as health officer of the city of Yonkers.
    Appeal from an order of the special term, Westchester county, dismissing a writ of certiorari._

      John Gibney, for app’lt; J. F. Daly, for resp’ts.
   Pratt, J.

—This court held, at general term that the act upon which the relator now relies did not apply to heads of departments or chief officers in cities and villages, but was intended to protect vetenars in subordinate offices. 29 N. Y. State Rep., 286.

This is decisive of the present case, as the relator’s petition was to be appointed to an independent and separate department of the city government.

It is true the question raised in that case related to the removal of a veteran, but the same principle is applicable.

The office of health officer under the village charter of Yonkers is distinct and independent' and not subordinate to any other officer or department.

If these views are right it is not important to determine whether the ‘remedy sought by the relator was proper, as in no view could the court grant him any relief.

The statute has been so fully and often discussed that it is not necessary that any further comment should be made. See 26 N. Y., State Rep., 54; 29 id., 723; 30 id., 52, 614; 54 Hun, 16 ; 57 id., 362 ; 32 N. Y. State Rep., 129.

Order affirmed, with costs.

Barnard, P. J., concurs.