text:
    EDWARD FOX, Respondent, v. MICHAEL H. FITZSIMONS, Appellant.

      Trespass — when it will be restrained by an injunction — when a court of equity will award damages therefor.

    A court of equity has jurisdiction over an action brought by the owner of a city lot to restrain the owner of an adjoining lot from removing a division fence and entering upon and excavating the plaintiff’s lot, and erecting a building thereon, whereby the foundation of the plaintiff’s house will be damaged and the free access of light and air to its windows impeded and destroyed.
    In such an action it is proper for the court to determine and direct a judgment for the damages, sustained by the plaintiff by reason of the trespasses committed immediately preceding the commencement of the action.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This was an equity action, brought to restrain the defendant from entering upon certain premises and excavating and removing the earth therefrom, and restraining him from erecting a building thereon. The plaintiff is the owner of a lot in the business part of the city of Rochester, the south front being upon Centre street, twenty-seven feet front, and fifty feet deep, upon which there was erected a brick building, used as a blacksmith shop. The defendant was the owner of a lot fronting on the same street, and adjoining the plaintiff’s premises on the east,' twenty feet front and fifty feet deep.
    These pieces of land were of considerable value. The strip of land in controversy was two feet and three inches in width, running from Centre street to the rear of these lots and on the east side of the plaintiff’s blacksmith shop.
    At the time of the commencement of this suit, and for the period of four years prior thereto, this strip was enclosed by a board fence, running from the line of Centre street to the .rear of the lot, and the space between the east wall of the shop and the fence was occupied by the plaintiff as a place for the storage of such articles as could be placed therein, the street end being closed by a gate. The defendant claims that the west line of his lot comes up to the east wall of the plaintiff’s shop as the same now stands.
    On the 20th day of June, 1880, a few days before the commencement of this suit, the defendant tore down the fence and commenced excavating and removing the earth on the strip in question, digging down beside the foundations of the plaintiff’s shop and exposing the same, and threatened to erect a brick building on his lot, laying the west wall close beside the east wall of the plaintiff’s building, and occupying all of the land in dispute. In the plaintiff’s east wall there are windows from which the light and air would be entirely excluded if the defendant’s building should be erected as contemplated.
    The referee in his. findings of fact, determined that the plaintiff has the record title to the loans in quo, and refused to hold and find that the same had been held adversely by the defendant, and those under whom he .claims, for a period of twenty years, and refused to find that there had been any practical location of the line, as claimed by the defendant, so as to estop the plaintiff from asserting his record title.
    The judgment perpetually enjoined the defendant from erecting or constructing any wall, building or other structure, upon the premises, and from trespassing thereon in any manner, and awards to the plaintiff fifty-seven dollars as damages for the actual trespass committed.

      A. L. Barton, for the appellant.

      Smith & Briggs, for the respondent.
   Barker, J.:

For trespasses upon real estate the general rule of law is for the injured party to seek redress and indemnity for the wrong committed by an action in the common-law courts for damages sustained, a jury assessing the amount thereof.

Courts of equity in this State have not general jurisdiction to restrain by injunction all sorts of trespasses threatened to be committed to or upon real property; but to this proposition there are exceptions which have long existed where the circumstances of the case are peculiar and such that it could be clearly seen if the injury threatened is suffered to be done, it will cause irreparable mischief to the owner of the estate, or lead to a multiplicity of suits, or the value'of the inheritance be put in jeopardy by a continuance of the trespass.

If the suitor is able to present a case falling within any of the exceptional instances, relief is granted without the slightest hesitation, to prevent a failure of justice. The difficulty which arises when a resort is made to a court of equity for relief is for the court to determine whether the facts presented are of such a nature as to bring the same within either of the classes over which jurisdiction is conferred.

By frequent adjudications, extending over a long period of time in England and in most of the American courts, courts of equity have granted injunctions to protect mines, quarries and growing timber, to prevent encroachment upon the rights of the proprietors of running waters, and to compel a restoration of the stream to its natural channel, and to settle disputes respecting the boundaries of estates where one of the claimants is about to cut down timber or ornamental trees growing on the disputed land or to erect a building thereon. (Story’s Eq. Jur., §§ 928, 929; Livingston v. Livingston, 6 Johns. Ch., 497; Kinder v. Jones, 17 Ves., 110; Creeley v. Bay State Brick Co., 103 Mass., 514; High on Injunctions, §§ 704, 707.)

The acts which the defendant threatens to do, are such, if they be permitted, as will, beyond all reasonable doubt, cause irreparable, mischief to the plaintiff ; hy endangering the safety of his building, impairing its rental value as a tenement, by obstructing the light, hy breaking down and destroying land marks and by gaining full and continuous possession of the same.

The decree in the case restraining the defendant from encroaching upon the plaintiff’s land, is sustained by the opinions of elementary writers and the decisions of the courts in this and many other of the States.

Mr. High, in his work on injunctions, remarks: “ Perhaps no cases where preventive relief by injunction has been allowed against the commission of trespasses, better illustrate the nature and grounds of the jurisdiction than those in which the aid of equity is invoked to prevent an encroachment upon complainant’s soil, by excavating on the part of an adjacent owner, or hy the destruction of complainant’s wall in building operations upon adjacent premises ; and tire right to relief in this class of cases is well established. For example, where complainant and those under whom he claims have been for many years in possession of lands, and defendant, an adjacent landowner, has pulled down the division fence, and is proceeding to excavate the soil of complainant’s land, for the purpose of erecting a building partly upon his premises, a fitting case is presented for relief by injunction, the injury going to the destruction of the inheritance.

“ So when defendants, in erecting a building upon a lot adjoining the premises of complainants, are removing bricks from the wall of their building, to its great injury and detriment, the act, although a trespass, is of such an irreparable character as to warrant an injunction.” ' (Secs. 704-707.)

Where the trespass complained of consists in the erection of buildings upon complainant’s land, a distinction is taken between the buildings when in an incomplete and when in a finished state; and while jurisdiction is freely exercised before the completion of the structures, yet if they have been completed, the relief will generally be withheld, and the person aggrieved left to his action by ejectment.

In Creeley v. The Bay State Brick Company (Supra), the defendant, acting under a mistake as to the true boundaries between its own premises and those of the plaintiff, was constructing a causeway of two or three feet in height, and about twenty-five feet in width, across the plaintiff’s land, without his consent and in violation of his rights. The court held that the facts brought the case cléarly within the equity jurisdiction of the court, and granted an injunction restraining the defendant from completing the structure, and commanding him to desist making further encroachments upon the plaintiff’s premises.

The right to interfere by an injunction to prevent a trespass was directly admitted in the case of The Tribune Association v. The Sun (7 Hun, 175). There the defendant threatened to place materials. temporarily upon the plaintiff’s premises while repairs were being made to its own building on the adjacent lot. The plaintiff showing that the use of its premises was essential to the enjoyment of the buildings erected thereon, and that the use by the defendant would be a material interruption; the court held that upon these facts a case was made for relief.

The case at bar is, in principle, like the case of Johnson v. The City of Rochester (13 Hun, 285), and there the court remarked: “Although the general rule is that an injunction will not be granted to restrain a mere trespass without special equitable features in the case, it is well settled that such equitable features exist when there is vexation from repeated or continued trespass in the nature of a nuisance, or when the wrongful acts, continued or threatened to be continued, might become the foundation of adverse rights, and would occasion a multiplicity of suits to recover damages.”

The court having gained jurisdiction for the purpose of restraining the defendant, it was proper to award damages to the plaintiff for the injuries sustained by the trespasses committed immediately preceding the commencement of the action.

The plaintiff objects to the court maintaining jurisdiction over this case as a suit in equity, for the reason that it deprives him of the right of trial by jury on a question of title to real estate. He could, have secured that privilege and had his claim of title determined by a jury if he had resorted to an action of ejectment instead of taking the law into his own hands and with violence attempting to seize the possession of the lands within the plaintiff’s enclosure, and of which he was in peaceable possession.

. Upon the trial the defendant called as a witness Owen McLane. He is the husband of Bridget McLane, they being the defendant’s grantors, the title, however, being vested in the wife alone. He testified to conversations between himself and the defendant concerning the boundary line, indicating that at the time of the purchase the defendant was informed that the line between the lots was as the plaintiff claimed and as the referee found. He was asked the following question: “ Did you ever claim to have any title to that strip of two and one-half feet.” Question objected to by defendant as incompetent and immaterial. The same was overruled and the defendant excepted and the witness answered in the negative.

This evidence was surely competent if material, as the witness was in actual occupation before the plaintiff erected the fence along the line. It was competent as bearing upon the question whether he and his wife did actually occupy the strip of land in dispute. If, however, it was immaterial evidence, we are unable to perceive how it could have any effect and influence on the mind of the referee in disposing of the question of adverse possession. The question put to Patrick Holeran is of the same character and import. The defendant, in giving proof upon the question of adverse possession, gave evidence showing that one McLane had erected a fence in front of his lot along Centre street and attached it to the corner of the blacksmith shop. The plaintiff was permitted to testify, over the defendant’s objection, that McLane asked permission and that he gave consent that the fence might be connected with the corner of the shop. That was competent proof to give, to meet and explain that circumstance. The plaintiff’s lot is the rear part of lot 47 and the defendant’s the rear part of lot 16 as they were originally laid out and are designated upon the map in evidence. Ephraim Gilbert was at one time the owner of the original lot 16, and he died in 1848. The defendant offered to prove that Gilbert while in possession of the lot said that lot 16 was 102 feet deep. Lot 16, as laid down on the map and described in Gilbert's deed, was 100 feet deep, and no more.

It was not error to reject the offer.

All of the rulings of the referee in receiving and rejecting evidence have been noticed and were correctly made.

The evidence upon the question as to the record title of the premises, has been very carefully examined, and we concur in the finding of the referee on that subject, and deem a fair balance of the proofs to be in support of the finding on that question.

The question of adverse possession and practical location, received a very careful and intelligent consideration by the referee, whose opinion is before us, and we adopt the same as a proper disposition of those issues.

The judgment is affirmed.

Present — Smith, P. J., Hardin and Barker, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Smith, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH CALLAHAN, Appellant, Impleaded, etc.

      Appeals in criminal cases — what intermediate orders a/re reviewed)!e on an appeal from a judgment — when different offenses may be charged in different counts in the sarnie indictment — cross-examination of a witness — impeachment of him by showing-contradictory statements made before the committing magistrate,

    A demurrer interposed by the defendant to an indictment found against him in a Court of Oyer and Terminer having been overruled, and he having thereafter pleaded not guilty, the case was sent to the Court of Sessions for trial.

      Held, that an appeal from a judgment, entered upon his conviction in the latter court, brought up for review the decision of the Oyer and Terminer upon the demurrer.
    Under sections 278 and 279 of the Code of Criminal Procedure it is proper to join in an indictment two counts, one charging robbery and the other larceny, where each charge is founded upon the taking of the same articles of personal property from the same person at the same time and place; one charging it to have been taken with, and the other without violence to the person of the owner.
    Upon the cross-examination of a witness for the prosecution the defendant’s counsel offered to prove the signature of the witness to the testimony, given by him upon his examination before the committing magistrate, for the purpose of calling his attention to portions of the testimony there given by him: Upon the objections that the testimony was a public record and that this was not the proper way of proving it, and that in any event it was immaterial, the court excluded the evidence.

      Held, that this was error.

      Held, further, that the error was not cured by subsequently allowing the counsel to refer to the minutes of such examination taken by the person who then acted as counsel for the defendant and to cross-examine the witness from them. •
    Appeal from a judgment of the Court of Sessions of Chautauqua county, entered upon a conviction of the defendant of the crime of robbery.'

      Walter W. Holt, for the appellant.

      Chester B. Bradley, district attorney, for the respondent.
   Smith, P. J.:

The indictment was‘found and presented in May, 1882, in the Court of Oyer and Terminer, in the county of Chautauqua. In that court the defendant was arraigned; he demurred to the indictment; the demurrer was overruled, and the defendant, on being required to plead further, pleaded not guilty, and the Oyer and Terminer then sent the case to the Court of Sessions of that county for trial. A question not discussed by counsel has occurred to us, whether the appeal from the judgment of the latter court brings up the judgment of the Oyer and Terminer on the indictment for review. Section 517 of the Code of Criminal Procedure, provides that an appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment, and upon the appeal, any actual decision of 1he court in an intermediate order or proceeding forming a part of the judgment-roll, as prescribed by section 485, may be reviewed. Section 485 provides that when judgment upon a conviction is rendered, the clerk must, upon the service upon him of notice of appeal, immediately annex together and file certain papers therein specified, which constitute the judgment-roll, among which are the indictment and a copy of the minutes of the plea or demurrer,” and a copy of the minutes of the judgment,” An appeal to this court may be taken by the people upon a judgment for the defendant on a demurrer to the indictment (sec. 518), but no mode seems to be provided for an appeal by the defendant from a decision adverse to him upon a demurrer to the indictment, except under section 517. We are inclined to think that it accords with the intent of the Code to hold that the appeal in this case brings up the decision of the Oyer and Terminer on the demurrer.

The ground of the demurrer was that two different crimes are charged in the indictment; and that the acts complained of constitute different crimes. It is contended by the defendant’s counsel that the demurrer was overruled improperly. Section 278 of the Code of Criminal Procedure provides that the indictment must charge but one crime, and in one form, except as in the next section provided. Section 279 provides that the crime may be charged in separate counts to have been committed by different means; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts. In this case, each count charged the defendant with having feloniously taken and carried away, from the person of William Hamilton, certain personal property belonging to said Hamilton, therein particularly described (the description being the same in each count), at Dunkirk, on the 22d of October, 1881. The first count charged the taking and carrying away to have been by violence to the person of said Hamilton, and against his will; the second count charged that the property was stolen from him. It is to be inferred from the identity of description, time and place, that the two counts referred to one and the same transaction, and the felonious taking was robbery or larceny, according to whether it was done with or without violence to the person. The demurrer was properly overruled.

William Hamilton, was examined as a witness for the prosecution. On his cross-examination, the defendant’s counsel offered to prove the signature of the witness to his testimony given upon the examination before Justice G-lesson, for the purpose, as the appeal book states, “ of calling his attention to certain portions of that evidence as it was signed by him and inquiring whether he so swore.” It was objected that it was a public record and not the proper way of proving it and as immaterial. The court held that it was immaterial and excluded it, remarking to the counsel, you can do that without making him swear to a signature or reading from that paper.” In holding that the paper was immaterial we think the trial court was in error. It was certainly important to show, if it could be done, that the complainant had contradicted himself under oath, and the minutes of the examination before the magistrate, signed by the witness, were the best evidence of what he swore to on that occasion, and in strictness ought to have been produced and put in evidence before he was examined on that subject. (Bellinger v. People, 8 Wend., 595; The Queen's case, 2 Brod. & Bing., 288; Newcomb v. Griswold, 24 N. Y., 301.) It is now urged by the counsel for the respondent that the examination could not properly be given in evidence until its identity had been proved; and that as the witness signed it- with his mark only, the magistrate should have been called to identify the writing and prove that it was truly read to the witness, who assented to- its correctness. (1 Greenl. Ev., § 224; Rex v. Chappel, 1 M. Rob., 395.) But that objection was not distinctly taken at the trial. If it had been it might have been obviated by calling the magistrate. Besides the prisoner’s counsel, immediately after the ruling, proved by the witness that the examination was read over to him before he signed it. It is contended by the respondent’s counsel that the ruling, if erroneous, was harmless, inasmuch as the defendant’s counsel was afterwards permitted to refer to minutes of the examination taken by coungel who appeared on that occasion for the defendant, and from them to cross-examine the complainant. But that did not cure the error. It is impossible to say that the jury would not have given more credence to the examination taken down by the magistrate" than to minutes kept by the defendant’s counsel. After carefully reading the entire evidence we can hardly bring ourselves to the conclusion that the defendant was not prejudiced by the ruling in question.

We think the judgment' and conviction should be reversed and the case remitted to the Court of Sessions of Chautauqua county for a new trial.

Hardin and Barker, JJ., concurred.

So ordered.


text:
    JULIA JAQUETH, Respondent, v. ABRAM MERRITT, Appellant.

      O hattel mortgage — neglect of a mortgagee to refile it— rights of a purchaser at a sale had wider a mortgage subsequently given.

    April 11, 1879, the owners of certain articles of personal property executed a mortgage thereon for $700, which was duly filed on the twenty fourth of that month. April 2, 1880, another mortgage, covering a portion of the property included in the first, was given to other parties, which was on the same day filed. The $700 mortgage was not refiled, but on April 23, 1880, another mortgage to secure the same debt and covering the property described in the ’ second mortgage, was executed; and was filed on April twenty-six. Upon a sale made in January, 1881, under the second mortgage of the property covered by it, the defendant purchased, for twenty-five dollars, a mare covered by all the mortgages. He had no knowledge of the other mortgages other than such as was to be implied from the filing of the same.

      Meld, that by his purchase he acquired not merely the rights of the second mortgagee, which, by reason of his having taken his mortgage before the expiration of the year from the filing of the prior mortgage, were subj ect thereto, but that the purchase having been made after the expiration of the year he acquired also all the interests in the property which the mortgagor could convey. ■
    That he took the mare free from the lien of the first mortgage.
    Appeal from a judgment of the Oswego County Court, reversing a judgment of a justice of tbe peace in favor of the appellant.

      G. W. Avery, for the appellant.

      A. L. Johnson-, for the respondent.
   Smith, P. J.:

Action for the conversion of a mare. The plaintiff claims title by virtue of a chattel mortgage on the mare and other property, executed by William and Henry Tan Auken, the owners of the mortgaged property, dated April 11, 1879, and duly filed the twenty-fourth of the same month, to secure the payment of a promissory note for $700, payable April 11,1880. On April 2,1880, the Yan Aukens executed a chattel mortgage to Ceorge Tenney upon property including the mare in question, which mortgage was duly filed on the same day. The plaintiff did not refile her mortgage, but on April 23, 1880, she toolc another mortgage from the Yan Aukens to secure the same debt for which the first mortgage was given, and covering the same property described in the mortgage to Tenney. That mortgage was duly filed April 26, 1880. Tenney, by virtue of his mortgage, took the property described in it, and on January 19, 1881, sold the mare in question at public sale to the defendant for twenty-five dollars. Augustus Avery, an agent of the plaintiff, was present at the sale, and after the mare had been struck off to the defendant, he stated to the auctioneer that he forbade the sale in the name of Mrs. Jaqueth. The defendant, at the time of the purchase, had no knowledge of the plaintiff’s mortgage other than such as is to be implied from the filing of the same.

The filing of the plaintiff’s first mortgage was notice of its existence to ‘Tenney, who took his mortgage before the expiration of one year from the time of such filing.. That was the case, even although Tenney’s mortgage was taken within thirty days next preceding the expiration of such year, and the plaintiff had not then filed the notice and statement required to preserve the validity of her mortgage after the expiration of the year. (Laws 1833, chap. 279, § 3, as amended by Laws 1873, chap. 501, and Laws 1879, chap. 418; Meech v. Patchin, 14 N. Y., 71.) Tenney’s rights under his mortgage were, therefore, subject to the lien of the plaintiff’s earlier mortgage.

The defendant, however, is in a different position. Although he bought under Tenney’s mortgage, his purchase was made after the expiration of a year from the time of filing the plaintiff’s first mortgage, and as he was a purchaser for a valuable consideration, without notice of the plaintiff’s mortgage, the latter is of no validity as against him. By his purchase he acquired not .merely the rights of Tenney, the mortgagee, but also all the interest in the property which the mortgagor could convey. If, at the time of his purchase, he had taken a fresh mortgage, or a bill of sale, from the Yan Aukens, in good faith, it would have been unincumbered by the lien of the plaintiff’s mortgage. These views are supported by the cases of Dillingham v. Bolt (37 N. Y., 198), and Marsden v. Cornell (62 id., 215, 219).

The respondent’s counsel contends that the defendant, by his purchase, could get no more than Tenney had to sell, and that as he bought at public sale, he is chargeable with notice that the interest purchased by him was subject to the lien of the plaintiff’s mortgage. The cases cited by the counsel do not sustain his position. They are Sheppard v. Earles (13 Hun, 651); Frost v. Yonker's Savings Bank (70 N. Y., 553); Wood v. Colvin (2 Hill, 566); Carpenter v. Stilwell (11 N. Y., 61), and Craft v. Merrill (14 id., 456). If the views already expressed by us as to the title acquired by the defendant are correct, this position is unsound.

The respondent’s counsel also contends that the notice given by the plaintiff’s agent at the sale, before the property was delivered to the defendant, or he had executed the note which he was to give for it, deprived him of the protection of a purchaser in good faith. The difficulty with that position is, that the sale was complete and the title had passed to the defendant before the notice was given. As the price for which the mare was sold was less than fifty dollars, the sale was not within the statute of frauds. In general, at common law, a mere contract for the sale of personal property, when nothing remains to be done by the vendor, transfers the title without payment or delivery. (2 Bl. Com., 448 ; 2 Kent’s Com., 492.) Noi only had the title passed, but the defendant had become liable to pay the amount of his bid before the plaintiff’s agent gave notice of her claim.

Hpon the grounds above stated, we are of the opinion that no cause of action was made out, and that the judgment of the County Court should be reversed, and that of the justice affirmed.

Hardin and Barker, JJ., concurred.

So ordered.


text:
    JOST MOLLER, Jr., and JOHN H. SCHUMAN, Appellants, v. ARTHUR J. WELLS and THOMAS H. LYONS, Respondents, Impleaded, etc.

      Supplementary proceedings — when a receiver’s title is disputed, so that he cannot obtain an order requiring the delivery of property of the debtor from a third person— Code of Civil Procedure, sec. 3447.
    The plaintiffs, in supplementary proceedings instituted upon a judgment recovered by them against the defendant Lyons, applied for an order requiring the treasurer of Onondaga county and the treasurer and receiver of taxes of the city of Syracuse, to pay to the sheriff of the ¿aid county, to be applied by him upon the plaintiffs’ judgment, certain moneys which had been received by them upon the sale of the judgment-debtor’s real estate for the non-payment of city and county taxes. It was shown upon the hearing that the lands sold were subject to the liens of certain mortgages, given prior to the recovery of the plaintiffs’ judgment, and that the owners of the mortgages claimed to be entitled to the said surplus moneys, and had so notified the county and city treasurers.

      Held, that without determining whether or not the lien of the mortgages was destroyed by the tax sales, the right of the plaintiffs to the moneys was “ substantially disputed ” within the meaning of those words, as used in section 3447 of the Code of Civil Procedure, and that the court properly refused to grant the application.
    Appeal from an order made by Mr. Justice Yann, at chambers, denying certain motions made by the plaintiffs in supplementary proceedings.

      Homer Weston, for the appellants.

      I. H. Ames, for the respondents.
   Smith, P. J.:

The plaintiffs, having instituted supplementary proceedings upon a judgment recovered by them against the defendant Lyons, applied for orders therein requiring Thomas Merriam, the treasurer of the county of Onondaga, and Timothy Sullivan, the treasurer and tax receiver of the city of Syracuse, to pay to the sheriff of said county certain surplus moneys in their hands which arose from the sale of Lyons’ real estate at county and city tax sales, to apply upon the plaintiffs’ judgment. The application was made under section 2447 ■of the Code, which provides, in substance, that when it appears that fhe judgment-debtor has in his possession or under his control money or other personal property belonging to him, or that one or more •articles of personal property capable of delivery, 'his right to the possession whereof is not substantially disputed, are in the possession or under the control of another person, the judge may make an •order directing the judgment-debtor or other person immediately to pay the money or deliver the articles of personal property to a •sheriff designated in the order.

It appeared upon the hearing of the motion that the lands sold were subject to the lien of certain mortgages prior to the plaintiffs’ judgment; that the amount unpaid on said mortgages largely ■exceeds the value of the lands, and that the holders of the mortgages claim to be entitled to the surplus and have served notices on the county and city treasurers to that effect.

Upon that state of facts it was claimed before the judge in opposition to the motion that the lien of the mortgages' attached to the surplus proceeds of the sale remaining after payment of the taxes, by virtue of which the sale was had, and that the surplus belongs to the mortgagees and not to the judgment-debtor.

In support of the motion, it was contended that the tax sales displaced the lien of the mortgages, and that the surplus belongs to the judgment-debtor.

Without passing upon the merits of the question thus raised, we are of the opinion that by the claim of the mortgagees, which is set up by the county and city treasurers in opposition to the motion, the alleged right of the judgment-debtors to the surplus was “ substantially disputed” within the meaning of the section, and the issue thus made coul 1 not be disposed of upon the summary application before the judge; but if the plaintiffs adhere to their claim, it can only be adjudicated in an action to which the claimants shall be made parties.

The order should be affirmed, with ten dollars costs and disbursements.

Hardin and Barker, J J,, concurred.

So ordered,


text:
    HARVEY S. BEDELL, as Assignee in Bankruptcy of JAMES L. HUMPHREY, Appellant, v. WILLIAM H. BARNES, Respondent.

      Costs — executors and trustees, unnecessarily suing in their representative capacities, are personally liable for costs— Code of Civil Procedure, sec. 3246.
    Section 3246 of the Code of Civil Procedure does not exempt executors, administrators or trustees of an express trust from liability to costs in actions-brought by them in their representative capacities, unless the actions are necessarily brought by them in such capacities.
    In an action brought by an assignee in bankruptcy, as such, to recover for a wrongful taking from his possession of personal property which he had received as a part of the assets of the bankrupt, a judgment was rendered in favor of the defendant.

      Held, that as the assignee might have brought the action in his individual, instead of his representative, capacity, he-was personally liable for the costs thereof Reade v. Waterhouse (52 N. Y., 587), distinguished.
    Appeal from an order of tbe Oneida County Court, denying tbe plaintiffs motion to vacate or modify a judgment against the plaintiff, personally, for the costs of the action,'and also a motion to set aside an execution issued on the said judgment against the property of the plaintiff, individually.

      11. 8. Bedell, appellant, in person.

      S. Cromwell, for the respondent.
   Smith, P. J.:

No order has been made in the action charging the plaintiff, personally, with costs, as provided by section 3246 of the Code of Civil Procedure; and upon that ground the plaintiff made his motion in the court below, and now contends that it was improperly denied. The answer made by the respondent is, that as the plaintiff’s sole cause of action set out in the complaint was for an alleged wrongful taking of personal property from his possession after he was appointed assignee and had' taken possession of the assigned property, he could have sued in his own right, and he unnecessarily described himself in the complaint as assignee.

Does section 3246 exempt the several classes of plaintiffs therein described from liability to costs when they unnecessarily prosecute in their representative character? That section, like its predecessor, section 317 of the old Code, groups together “ executors and administrators,” “ trustees of an express trust,” and “ persons expressly authorized by statute to sue,” and applies to them one and the same rule. Previous to the adoption of section 317, the statutory exemption was confined to “ executors and administrators.” (2 R. S., 615, § 17; 1 R. L., 343, § 2.) The Revised Statutes, in terms, limited it to executors and administrators “necessarily prosecuting in the right of their testator or intestate,” but the word “necessarily” was not used in the revision of 1813, and it was held that the introduction of it in the Revised Statutes worked no change in the law. (The People v. The Judges of the Albany Mayor’s Court, 9 Wend., 486; Holdrige v. Scott, 1 Lans., 303.) The section of the Revised Laws of 1813, above cited, was frequently held to apply only to executors, etc., necessarily prosecuting in their representative character. (Ketchum v. Ketchum, 4 Cow., 87; Mann v. Baker, 5 id., 267.) The same construction has been given repeatedly to section 317 of the Code. (Holdrige v. Scott, supra; Smith v. Patten, 9 Abb. Pr. [N. S.], 205; Bostwjck v. Brown, 15 Hun, 308.) In Holdrige v. Scott, the case of Woodruff, Administrator, v. Cook (14 How., 481), holding adverse views, was disapproved. There is abundant authority, then, for saying that none of the classes of persons described in section 3246 can escape The penalty of costs in case of failure, by resorting to the pretext of suing in their representative character, upon a cause of action accruing to them in their owfi right.

That an assignee in bankruptcy is a “ trustee of an express trust,” within the meaning of the section, has been held by the Court of Appeals. (Reade v. Waterhouse, 52 N. Y., 587.)

Was the present suit unnecessarily prosecuted by the plaintiff in his representative capacity ? The cause of action did not pass to him by the assignment. It arose after the assignment, by reason of a wrongful taking of property from his possession. He was vested with the legal title, and as the property had come into his hands as assets of the bankrupt, he was answerable for it, and could maintain an action against the wrong-doer in his own right. In the case of executors, it has long been settled, that in trover brought by them, where the conversion, which is the gist of the action, is after the death of the testator, they must pay costs if they fail. (Mann v. Baker, supra.) In Burhans v. Blanchard (1 Den., 626), which was an action by an executor on promises, made after the death of the testator, the court said that if any cause of action existed it was personal to the plaintiff himself, and having failed in the action he was charged personally with costs. The rule is the same whether the action be in tort or on contract. (Id.) In Bonafous v. Walker (2 T. R., 126) it was objected that the action ought to have been brought by the plaintiff as administratrix, because the judgment on which the party had been committed in execution, had been obtained by her as administratrix of her husband. But the court said that it was unnecessary, for the instant the plaintiff recovered the judgment it became a debt due her, on record, and was assets for which it was not necessary for her to declare as administratrix. To the same effect are Talmage v. Chapel (16 Mass. R., 71) and Biddle v. Wilkins (1 Pet., 686). In analogy to those cases, it seems clear that the present action was unnecessarily prosecuted by the plaintiff in his representative character. Suppose the defendant had answered, denying the plaintiff’s character as assignee, would the denial have presented a defense? We think not. The fact would have been immaterial, since the alleged conversion consisted in taking the property from the plaintiff’s possession. The plaintiff being answerable for the property so taken, the suit was his own, in his own right, the fund in his hands was not involved in the event, and it ought not to be wasted by appropriating any part of it to the payment of the costs of the present action. The rule contended for by the appellant would tend to encourage laxity on the part of trustees, and the squandering of trust funds in their hands in useless litigation.

The case of Reade v. Waterhouse (supra), relied upon by the appellant’s counsel, is not adverse to the views above expressed. There the plaintiffs having sued. upon a promissory note, became bankrupts, and their assignee in bankruptcy continued the action in their name. The action failed and the defendants entered judgment for costs, which the assignee was ordered to pay or be attached. It was claimed that the order was authorized by- section 321 of the old Code, which provided that “ in actions in which the cause n-f action shall, by assignment after the commencement of the action, * * * become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attachment.”. The court held that that section imposed no greater liability upon the assignee than if the action had been originally brought by him in his representative capacity, and that under that section an assignee is not personally chargeable for costs before the assignment; and the order was reversed. The decision is in liarmony with what we have said. As the note was given to the bankrupts, the assignee, if he had commenced the action, could properly have sued in his representative capacity, and would have been exempt from personal liability for costs by section 321, as construed by us.

The order should be affirmed, but without costs, as the question is new.

Macomber, J., concurred; Hardin, J., dissented.

So ordered.


text:
    MARY J. DESBROUGH, Respondent, v. GEORGE DESBROUGH, Appellant.

      Divorce — neither alimony nor expenses allowed, when it is evident that the wife cannot succeed, — agreement for a separation, — when it will defeat an action for a limited divorce.

    When there is no probability that a wife will be successful in an action brought by her, whether for an absolute or a limited divorce, the court will not direct an allowance to be made to her by her husband, either as alimony pendente lite, or for expenses.
    Where a wife, in pursuance of an agreement for separation, and for a consideration paid by the husband and accepted by her, has voluntarily left and lived apart from him, and does not oifer or propose to return to him nor to restore the consideration she has received, she cannot procure a limited divorce upon the ground of his abandonment and refusal to support her.
    Appeal from an order of tbe Oneida Special Term, granting the plaintiff an allowance of one'hundred dollars for her expenses in this action.

      Spriggs, Matthews <& Spriggs, for the appellant.

      Morgan d¿ Bronner, for the respondent.
   Smith, P. J.:

The action is brought to procure a divorce from bed and board, on the ground of abandonment and neglect to provide for the wife. The parties were married in September, 1848. The appeal papers show, without dispute, that in March, 1865, the plaintiff voluntarily left the defendant’s house in U tica and went to reside with her parents in Trenton, Oneida county, in pursuance of an agreement of separation entered into between them, taking with her personal property of the value of about eight hundred dollars, and one hundred dollars in money, which were furnished to her by the defendant in pursuance of the agreement, in consideration of which she agreed to live separate and apart from the defendant, and that she would not contract any debts on his account, or trouble or molest him, or make him liable for her support and maintenance, in any manner or form, during her natural life. She has continued to live separate and apart from him from that time to this, and it does not appear that she has ever offered to return to him, or requested him to receive her as his wife. At Special Term, she moved for alimony as well as expenses, but the former branch of the motion was denied. "We think the facts above stated are a defense to the motion for expenses as well.

Where there is no probability that the wife will be able to succeed in her suit, whether for an absolute or a limited divorce, the court will not direct an advance either for alimony, pendente lite, or for expenses. (Jones v. Jones, 2 Barb. Ch., 146.) In this case the alleged abandonment, which is the sole ground of the action, is shown by the undisputed facts to have no existence, the plaintiff having voluntarily left her husband and agreed to live separate from him for a good and valuable consideration furnished by him. She neither offers to return to him nor to restore the consideration which she has received.

An agreement for separation is valid when made in view of immediate separation, or when separation has actually taken place. (Baker v. Barney, 8 Johns., 73; Shelthar v. Gregory, 2 Wend., 422.) But without reference to the validity of the agreement the fact that the wife voluntarily left her husband and continues to live apart from him for a consideration furnished by him and accepted by her, and that she does not propose to return, is a complete answer to the charge of abandonment by the husband.

The order is reversed and the motion denied, but no costs are . , given.

Hardin and Barker, JJ., concurred.

Order reversed and motion denied, without costs.


text:
    CHRISTINA B. GALSTER, an Infant, by Guardian, Etc., v. THE SYRACUSE SAVINGS BANK.

      Practice — money ir^the hands of a receiver — amotion to compel its pa/yment to a third person must he made in the action in which the receiver was appointed.

    In pursuance of an order duly made a savings bank paid to a receiver appointed in supplementary proceedings moneys deposited with it to the credit of the judgment-debtor and his wife. Bach of these parties had at different times, and in the absence of the other, deposited money to the credit of, and withdrawn it from the said account.
    Subsequently an action was brought by the wife against the bank to recover the amount of the said deposits, she claiming to be the sole owner thereof.

      Held, that the court had no power, upon a motion made by the bank in the last action, to order the receiver appointed in the first action to indemnify the bank against all costs, damages and expenses to which it might be subjected in the second action, or to repay the money to it.
    Appeal by Albert C. Phillips, receiver of the property of Charles C. Galster (appointed in the supplementary proceedings in an action in favor of Dennis Hess against said Galster), from an order of the Onondaga Special Term, made in this action, requiring the said receiver to pay to the defendant herein a certain sum of money which had been paid to said receiver, by said defendant, under an order of the county judge of Onondaga county, made in the action in which said receiver was appointed, or to indemnify the bank from all costs, damages or expenses to which it might be subjected in this action.

      A. G. Phillips, receiver and appellant, in person.

      Edwin 8. Butterfield, of counsel.

      W. H. Gifford, for Syracuse Savings Bank, respondent.
   Smith, P. J.:

The following facts appear from the appeal book:, For some time prior to 6th of September, 1882, Charles Galster and his wife, Christina B. Galster, the plaintiff in: this action, had deposited moneys in the Syracuse Savings Bank, the defendant herein; the account was kept on the books of the bank in the names of “ Charles 0. and Christina B. Galster; ” and each of the parties had, at various times, personally and in the absence of the other, deposited moneys in said bank, and drawn moneys from it, to the credit and debit respectively of said accounts. On the day above mentioned, the appellant, Phillips, who had ,been appointed receiver of the property of said Charles Galster, in supplementary proceedings in the suit of Dennis Hess against said Charles, as such receiver demanded of the bank all moneys therein belonging to said Charles or deposited to his credit, and thereupon the treasurer of said bank paid to said receiver the sum of $400.58 which the receiver still holds subject to the order of the court. On 28th of September, 1882, this action was commenced against the bank to recover the same money, the plaintiff claiming it as her own. Thereupon the bank, upon notice to the plaintiff, the receiver and Hess, moved that the receiver and Hess be substituted as defendants in this action in the place of the bank, and that the bank be discharged from all liability to Hess, the receiver or the plaintiff, in respect to the subject-matter of this action. The relief asked for, as above stated, was denied, on the ground that the defendant had paid the money, which was the subject-matter of the action, to the receiver, but an order was made requiring the receiver, within twenty days after service of a copy of said order, to deliver a bond to the defendant indemnifying it against all costs, damages and expenses which the plaintiff may recover in this action, or which the defendant may sustain or incur therein, or that the receiver, within the same time, pay to the defendant the.said sum of $400.58. The appeal is taken from that part of the order which requires the receiver to. pay or give security.

We think the part of the order appealed from was improvidently granted, and that it should be reversed for several reasons:

1. From the manner in which the account was kept by the bank, and the dealings of Galster and his wife with reference to it, the presumption is that at least one-half of the money belonged to the husband, and there is no evidence to the contrary, except that the plaintiff, by her action, claims the whole. In so far as the order requires the receiver to pay over money belonging to Galster, it seems to be wholly unauthorized. (Schrauth v. Dry Dock Savings Bank, 86 N. Y., 390.)

2. But the receiver treated the order of the county judge as an adjudication that the whole sum belonged to the husband, and the bank acquiesced in that view of the matter, by voluntarily paying the whole of it to the receiver, under the order. That order was not made in this action. The receiver appointed under it represented the parties to the action in which the order was made, i. e., Galster, the judgment-debtor, and Hess, his creditor. How can this court, or any other, compel the receiver to pay over the money in an action to which neither the receiver, Galster, or Hess is a party ? Suppose that before the supplementary proceedings were instituted the bank had paid the whole of it to Galster on his check, would the court, on motion of the bank, in a suit begun against it by Mrs. Galster, to recover the money as hors, order Galster to restore it to the bank ? Or, if Galster had paid it to Hess on his judgment, could Hess be required, on like motion, to pay it to the bank ? Manifestly not. But the receiver has the same right to the money that Galster and Hess respectively would have in the cases supposed. And when it is said that the receiver holds the money subject to the order of the court, what is meant is, that he is subject to that court by whose order he was appointed, and which has jurisdiction of the fund, and that court can only dispose of the fund in the action in which its jurisdiction was acquired, or if in another action, the parties to the original action must be brought in.

i 3. This brings us to another difficulty in the defendant’s' way, which is, that the motion papers do not show in what court the ■judgment in Hess v. Galster was obtained, or out of what court the jexecution thereon was issued, and consequently they fail to show that this court has jurisdiction of the fund or the receiver. (Code, § 2471.)

4. The receiver having come into the possession of the fund lawfully and in the discharge of his duty, was entitled to retain out of it his commissions, and also his expenses if any, it not appearing that there was any other money in his hands applicable to their payment. The order directing him to pay over the entire fund, without authorizing him to deduct his commissions and expenses, or in any way providing for their payment, was unjust to him.

The courts have frequently ordered property or money in the hands of a receiver to be paid over to a third person claiming it, on motion, but in all those cases the application of the claimant was made in the same action as that in which the receiver was appointed, on notice to all parties to the action interested in the subject-matter of the motion. No case can be found in which, after the title to property has become vested in a receiver by virtue of the order appointing him, the court has divested him of it by an order made in an action or proceeding to which he was not a party.

The embarrassment of which the defendant complains was caused by its own action in treating the entire fund as the property of Galster, and paying it over to the receiver of Galster’s property without objection. It says that in so doing it acted under a mistake. But what mistake ? Certainly not a mistake of facts, for no fact is disclosed in the appeal book bearing upon the question of the title to the money, which was not known to the bank when the money was paid to the receiver. Nor does it yet appear but that the money rightfully belonged to the receiver, there being no evidence that, as between Galster and his wife, she, in fact, owned a dollar of it.

The portion of the order appealed from should be reversed, with ten dollars costs of appeal, and disbursements to be paid by the defendant herein to the receiver.

Hardin, J., and Barker, J., concurred.

So ordered.


text:
    JOHN B. GROW, Respondent, v. HORACE GARLOCK and Others, Appellants.

      Practice — stay of executions upon appeals from judgments in foreclosure cases — election of appellant as to the form of the undertaking — Oode of Chml Procedwre, secs. 1327, 1331 —the court will not decide abstract questions of law.

    Tlie execution of a judgment directing tlie sale of mortgaged premises may he staid, upon appeal, hy giving an undertaking against the commission of waste and for the payment of the value of the use and occupation of the premises as provided in the first sentence of section 1331 of the Code of Civil Procedure, or hy giving an undertaking for the payment of any deficiency which may occur upon the sale, as provided in the second sentence thereof. The first sentence, as well as the last, applies to appeals taken from judgments' directing a foreclosure and sale.
    Section 1327 of the Code of Civil Procedure, applies only to judgments or orders requiring the payment of a sum fixed, or which may be fixed hy a simple computation. It does not apply to judgments for deficiencies.
    It is not the province of courts to decide abstract questions of law disconnected from the granting of actual relief.
    Appeal from an order made at the Jefferson Special Term.

      Waylcmd F. Ford, for the appellants.

      P. O. Williams, for the respondent.
   Smith, P. J.:

The order appealed from was made upon an application of a somewhat unusual character. The defendants Snell and Horace Garloclc appealed to the Court of Appeals frpm a judgment of this court, affirming a judgment of the Special Term, which directed a foreclosure and sale of mortgaged real estate and required the payment of any deficiency that there might be and costs. They gave an undertaking as required by section 1326 of the Code to perfect the apjieal. The undertaking also provided, pursuant to section 1327, that if the judgment, or any part thereof, should be affirmed or the appeal dismissed the appellants would pay the sum directed to be paid by the judgment or the part thereof affirmed On the appeal to- the General Term they had given an undertaking providing against waste and for payment of the value of the use and occupation of the premises as required by the first sentence of section 1331, but no undertaking to that effect was given on the appeal to the Court of Appeals. Upon this state of facts the appellants applied to the Special Term to declare the proceedings of the plaintiff stayed, until the determination of the appeal, by the undertakings given, or to declare them stayed upon the execution of an undertaking as required by the first part of section 1331, and also to declare that the giving of an undertaking under the first part of that section is sufficient to stay proceedings. In other words, the appellants did not ask the Special Term to direct, permit or prohibit the doing or undoing of any act, but merely to say whether the undertakings given had worked a stay, or whether that result would follow in case a certain other undertaking were given. The case is not one resting in the discretion of the court. The statute prescribes what shall effect a stay. If the undertakings given by the appellants were such as the statute required to be given for that purpose, the appellants needed no order; if they were not, no order assuming to stay proceedings could aid them. Oases are numerous in which the court or a judge thereof may grant a stay on terms, or otherwise, as matter of discretion, but this is not such a case. And the appellants did not apply for that relief. They did not ask that the court direct a stay, but they asked that the court declare that what the appellants had done, or what they suggested they might do, was, or would be sufficient to effect a stay. They did not even state their readiness or ability to give the undertaking suggested by them, but as has been said, their so-called motion was merely a request that the court would inform them upon an abstract question of practice. There are two ways in which the questions argued by counsel might have been presented for adjudication. If, after the undertakings already filed were put in, the respondent had proceeded to enforce his judgment, the appellants might have moved to set aside such proceedings as irregular; or, if the appellants had omitted to file the requisite undertaking, they might have applied for leave to file the same on terms on excusing their default. It is not the province of courts to decide abstract questions of law disconnected from the granting of actual relief. (The People ex rel. Geer v. Common Council of City of Troy, 82 N. Y., 575.) Such decisions would bind no one. The order of the Special Term purported to deny the motion, except that it directed the, ¡fiaintiff’s proceedings stayed during the pendency of the appeal on the appellants giving an undfertaking as required by the latter part of section 1331 of the Code. The first part of the order was equivalent to an expression of the opinion that the giving of the particular undertaking therein described was necessary to effect a stay, and inasmuch as, if the opinion was correct, the giving of such undertaking would have worked a stay, proprio vigore, the remainder of the order was superfluous and of no effect. Upon this ground the entire order might properly be reversed.

But as the parties may be saved a repetition of motions by an expression of our views upon the questions which they have argued upon this appeal, we proceed to consider them

We do not concur in the opinion of the learned judge at Special Term, that the giving of an undertaking under the second sentence of section 1331, is necessary to a stay in this case. That part of the section (which was adopted as an amendment in 1879) had the effect,' as we understand it, to give to an appellant from a judgment directing a sale of mortgaged premises, his election to give the undertaking therein prescribed, the condition of which is to pay any deficiency, or to give one under the first clause of the section conditioned against waste, and to pay for use and occupation. Prior to the amendment of 1879, he was required to do both, and from that burden he is now relieved. The amendment evidently was adopted upon the idea that if the plaintiff is secured against any deficiency, there is no occasion for indemnifying him against waste or loss of the value of the use; and on the other hand, if the consequences of waste and the value of the use are made up to the plaintiff, the appellant shall not be required to make good any deficiency. It is true that in this view of the statute the appellant may stay the plaintiff’s proceedings without providing against a deficiency arising from accumulation of interest, depreciation in the market value of the mortgaged premises, or damage or destruction of buildings by fire, but if there is an omission in this respect, it can only be remedied by the legislature.

We do not concur in the opinion of the judge at Special Term, that section 1331, as amended, contemplates two distinct classes of cases, and provides a separate undertaking for each. It is clear that, prior to the amendment of 1879, the section related to but one class of cases, to wit, an appeal from a judgment “ entitling the respondent to the immediate possession of real property, or from a judgment or order directing the sale or delivery of possession of real property.” It was a substitute for section 338 of the old Code, which was limited to an appeal from a judgment “ directing the sale or delivery of possession of real property.” Of that class is a judgment for the sale of mortgaged premises; and it was so treated in the old section and the new. The present section, as amended, does not treat it otherwise; it simply makes it an exception to the class, by providing that, instead of the undertaking specified in the first part of the section, which is still applicable to the entire class, including judgments for the sale of mortgaged premises, it shall be sufficient to give an undertaking prescribed by the amendment. It is not made obligatory to do so.

The suggestion that an undertaking, in the form prescribed by section 1327, would cover any deficiency arising on the sale of the mortgaged premises is unfounded. That section is substantially like section 82 (2 R. S., 606), respecting appeals from orders or decrees of the Court of Chancery directing the payment of money. The construction given to that section in several reported cases is adverse to the view suggested. It is to the effect that the section applied only to decrees absolutely requiring the payment of a sum fixed, or that might be ascertained by computation. (See The City Bank v. Bangs, 4 Paige, 285; Quackenbush v. Leonard, 10 id., 131; Wright v. Miller, 3 Barb. Ch., 382.) See, also, Curtis v. Leavitt (10 How. Pr., 481), in which the cases above mentioned are relied upon in giving a similar construction to- section 335 of the old Code.

Order reversed, without costs to either party.

Hardin and Barker, JJ., concurred.

So ordered.


author: Barker, J.:

text:
    In the Matter of the Petition of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY, Respondent, to Appraise Certain Real Estate of GEORGE R. W. WOLFE, Appellant.

      Report of commissioners to'appraise damages — power of the court at Special Term to direct a rehea/ring on the ground that proper notice of the hearings before the commissioners was not given.

    Upon an application to confirm the report of commissioners, appointed to appraise the damages occasioned by the taking of land for railroad purposes, the court at Special Term has power to refuse to confirm the report and direct a rehearing, upon the application of a land owner who shows that he has not received proper and adequate notice of the meetings of the commissioners, and that by reason thereof he has been absent therefrom.
    Appeal from an order of the Erie county Special Term, confirming the award of the commissioners appointed to determine the compensation to be paid for the taking of the lands of the appellant, for the use of the petitioner’s railroad,said land being located in the city of Buffalo.
    The railroad company presented its petition to the Supreme Court on the 30th • day of August, 1881, for the appointment of commissioners, of which Wolfe, the land owner, had due notice.
    On that day three commissioners were appointed, and the 19th day of October, 1881, was named as the day for the first meeting of the commissioners. It is recited in the report of the commissioners that they did meet on that day, but it is not stated therein that they adjourned the proceedings to any subsequent day, and the report bears date on the 10th of November, 1881.
    It is stated in the report that Mr. Wheeler appeared before the commissioners at their first meeting as the counsel for the railroad company. But is is not stated that Mr. Wolfe, or anyone in his behalf, appeared at that time.
    It is recited in one of the concluding paragraphs of the report that upon the adjourned day, without stating when or where, Mr. Wolfe did appear and give evidence" in his own behalf. The commissioners returned the minutes of the testimony taken before them, from which it appears that on the twenty-fourth day of October four witnesses were called and sworn as to the value of the premises sought to be condemned.

      There is a memorandum in these minutes that the proceedings were adjourned to the tenth day of November, at the office of the counsel for the petitioner, and on that day it appears that Mr. Wolfe did appear, and was sworn and examined in his own behalf, and gave evidence as to the value of the premises. Subsequently, and on the 31st day of January, 1882, and on notice to Mr. Wolfe, the petitioner presented the report of the commissioners, at a Special Term of the Supreme Court of the county of Erie, and asked for its confirmation. On that .day Mr. Wolfe appeared by his attorney and opposed the confirmation of the report, and asked to have the proceedings remitted to the commissioners, that further proof might be given as to the value of the property, and that better justice might be done to him as to the amount of damages.
    In his affidavit it is stated that he did not appear before the commissioners at any time prior to the tenth day of November, the day upon which the report was signed and delivered; that the proofs presented by the petitioner were presented in his absence; that he went to the place appointed for the first hearing, but nothing was done on that day, and on the fourth of November he was notified of the meeting that was to be held on the tenth day of November, at the office of the petitioner. That at the meeting on the tenth of November he was not aware what proceedings were to be had, and that he was wholly unacquainted how such matters were to be conducted, and was not informed, prior to that time, that the railroad company had taken any evidence in the proceedings, and that on that occasion he was sworn, and some questions were asked him as to his own opinion concerning the value of the property. Accompanying his own affidavit, Mr Wolfe presented the affidavits of several other parties, who gave their own opinion of the value of the property, which was much above the sum awarded by the commissioners. The petitioner did not present any affidavits in contradiction of the facts contained in the affidavits presented by the land owner.
    In the order of confirmation it is recited that the railroad company was heard upon the application by Mr. Wheeler, its attorney, and that the affidavits presented by Mr. Wolfe were read and filed, and that Mr. Wadsworth was heard in opposition to the confirmation. It is also further recited in the order that the court held that it had no power or discretion to refer the matter back to the commissioners, but that it must affirm said report, and order the same to be in all things ratified and confirmed. From this order Mr. Wolfe appeals.
    ' George Wadsworth, for the appellant.

      Theodore F. Welch, for the respondent.
   Barker, J.:

. In -disposing of this appeal, we shall regard the proceedings on the part of the railroad company, to condemn the lands of Mr. Wolfe, as in all respects regular, from the time they were initiated, up to and including the delivery of the award by the commissioners.

The facts stated by Mr. Wolfe in his affidavit, read in opposition to the confirmation of the report, being wholly uncontradicted, the same tended to make a case, not to say more, excusing his default in not being present at the several meetings held .by the commissioners, prior to the final one, which convened on the tenth of November.

His appearance on that day, and submitting to an examination, should not be received as conclusive and binding upon him, as confirmatory of all prior proceedings had before the commissioners, and as placing him in a position that he cannot ask relief and be permitted to excuse his default in non-attendance upon the earlier and more important hearings had by the commissioners.

In the face of this áffidavit and the statements therein contained, which the petitioner admits to be true, by not disputing the same, it would be exceedingly harsh and unjust to hold as a rule of law, that he is now in no position to ask a favor from the court of the nature and character of the one solicited.

The learned judge was in error in holding that the court had not the power and authority at Special Term, on a proper application, to excuse the land owner’s default in presenting his proofs, and that it was the duty of the court, under the provisions of the seventeenth section of the general law, to confirm the report.

The provisions of that section were not intended to interfere with, or restrict the power of the court, in the exercise of its general jurisdiction, to relieve parties to the proceedings from defaults, mistakes and misapprehensions as to their rights and privileges, when timely and properly brought tq the attention of thq court. This court lias power by virtue of its inherent jurisdiction, sitting either at Special or General Term, to set aside the report of commissioners for good and sufficient reasons, and on timely application, made according to the rules and practice of the court.

All discussion and controversy over this question of power and authority, in this court, was brought to an end by the decisión of the Court of Appeals, In the Matter of the Application of the New York Central and Hudson River Railroad Company, to appraise certain lauds, and reported in 64 New York, 60.

If, upon the presentation of the report of the commissioners for confirmation, as provided in the seventeenth section of the Railroad Act, it appears that the proceedings have been regularly conducted in all respects, and no question of that character is raised, but the opposition to the confirmation is placed upon the ground that errors were committed by the commissioners in the receipt and rejection of evidence, or in the amount of compensation awarded; then it is the usual practice of the court, and such is the spirit of the section, to confirm the report and allow questions of that nature and character to be litigated on appeal.

We are of opinion that it was good and orderly practice for the land owner to ask for such relief a» he was entitled to, by way of securing a rehearing, on the application of the petitioner for a confirmation of the report.

So far as it is disclosed in this case, the first notice that the land owner had of the final action of the commissioners was on receiving notice of the application for a confirmation of their report.

The Special Term should have heard and disposed of the application for a rehearing upon its merits. That court had the power, if in its opinion a proper case was made, and it was error to deny the same for want of authority.

The order of confirmation is reversed, with leave to the petitioner to renew the motion for confirmation of report. Ten dollars costs and disbursements allowed the appellant.

Hardin, J., concurred ; Smith, P. J., taking no part.

Order of confirmation reversed, with leave to the petitioner to renew its motion for confirmation at Special Term, with ten dollars costs and disbursements to the appellant.


author: Barker, J.

text:
    JOHN S. BLANDON, Respondent, v. CURTIS H. MOSES, as Trustee of School District No. 12, of the Towns of Van Buren, Elbridge and Camillus, Appellant.

      Trustee of a school district cannot employ am unlicensed teacher — power of such trustee to employ an unlicensed person, on condition that he procure a license —1864, chap. 555.
    Appeal from á judgment in favor of the plaintiff, entered upon the verdict of a jury in the Onondaga County Court.
    The action was brought to recover damages for the breach of an oral contract by which the defendant employed the plaintiff as a teacher for his school district for the period of twelve weeks. After the making of the contract the defendant notified the plaintiff that he revoked the contract and wtfuld not accept his services. At the time the contract was made the plaintiff had no license to teach, but after the revocation of the contract, and prior to the time when the school was to open, he passed an examination and procured the requisite certificate.
    The court at General Term said: “ Two questions are presented for our consideration on this appeal, one is, was the contract valid and binding upon the parties thereto, or was it illegal and inoperative for the reason that the defendant, as trustee, had no power and authority to contract for the plaintiff’s services as'teacher, he at that "time having no certificate from the proper officers.
    “ In Gillis v. Space (63 Barb., 177) it was held that a trustee of a school district had no authority to contract for the services of an unlicensed teacher, and that an executory agreement engaging the services of such a person was invalid and not binding upon the school district. This decision was made in this department and we adhere to the interpretation then given to the statute creating and defining the duties and powers of school trustees as contained in chapter 555, Laws of 1864.
    “ This construction of the statute was observed and adhered to by the learned county judge, on the trial of this action, both by his rulings while the trial was progressing and in his charge to the jury.

      “ The complaint set forth the agreement as a positive and unconditional one, and in terms as being an engagement for plaintiff’s services for the period of sixteen weeks, at twelve dollars per week, to commence on the first day of December then following. '

      “ On the trial, the plaintiff was permitted to amend his complaint by inserting an averment that the contract was conditional in terms, and was to become binding and operative if the plaintiff did, before the time mentioned for opening the school, procure from the proper authorities the usual certificate granted by the school commissioner.
    “ It was intimated by the court, in Gillis v. Space {supra), that a trustee could make a valid conditional executory contract, engaging the services of an unlicensed teacher, if, before the time for entering upon the performance of the contract, the person engaged to teach did procure the proper certificate, for the reason, as there stated, that such an agreement is not a contract for the services of an unlicensed teacher.

      “ In disposing of this appeal, we do not need to affirm or dissent from the latter proposition, for the reason that we are of the opinion that there was not sufficient evidence given on the trial to justify the County Court in submitting to the jury the question, whether or not it was the understanding between the parties, and made a condition of the agreement, that the contract was conditional and not to be binding on the district unless the plaintiff procured the certificate required by the statute.” * * *

      William Porter, for the appellant.

      Waters, McLennam, c& Pillaye, for the respondent.
   Opinion by

Barker, J.

Present — Smith, P. J., Hardin and Barker, JJ.

Judgment reversed and new trial ordered in the Onondaga County Court, costs to abide event.


author: Smith, P. J.;

text:
    MARY G. LATHROP, as Administratrix, etc., of AZEL J. LATHROP, Respondent, v. CHARLES H. HOPKINS, Appellant.

      Evidence — personal transaction with, deceased person — Code of (Jivil Procedure, see. 829 — a son of the deceased pen-son is not interested, when the estate is insolvent.

    Appeal from a judgment, entered on a verdict in favor of the plaintiff rendered at the Oneida Circuit, and from an order denying a motion for a new trial on the minutes.
    The plaintiff sues to recover the value of services performed by her intestate, Azel J. Lathrop, as a builder and architect, in drawing plans and making estimates for altering certain buildings and converting them into a temporary post-office and internal revenue collector’s office. The defense is a denial of the defendant’s liability, and an averment that the work was done for the United States government, and not for the defendant, and also that the plaintiff is not the owner of the claim.
    The court at General Term, after holding that the'verdict of the jury in favor of the plaintiff was sustained by the evidence, said: “ An exception was taken to the admission of Charles H. Lathrop, a son of the intestate, as a witness in the plaintiff’s behalf, and it is now insisted that as next of kin he was interested in the event and therefore incompetent under section 829 of the present Code. The interest which will exclude under the Code is the same interest which had that effect at common law, i. e., a fixed and certain interest in the event of the particular suit. Here the interest of the witness is, at most, contingent, depending on the question whether the estate of his father is solvent. The only evidence on that subject is that his father, shortly before his death, executed an assignment of all his property, including the claim in suit, for the benefit of his creditors, from which it is to be inferred that his estate was insolvent, and that there is nothing to be distributed among his next of kin. The case of Le C lare v. Stewart (8 Hun, 12T), cited by the appellant’s counsel, was decided under section 399 of the old Code, as amended in 1866, which excluded every person ‘ having a legal or equitable interest which may be affected by the event of the suit.’ The exception is not well taken.” * * *

      P. O. J. De AngeUs, for the appellant.

      Josiah Perry, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Barker, JJ., concurred.

Judgment and order affirmed.


text:
    In the Matter of the Application of the NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, to Acquire Lands of JOHN N. DUDLESTON.

      Taking of land for railroad purposes — measure of damages — opinions of witnesses — they cannot express opinions as to the separate items of damages resulting to the land not taken.

    Appeal by the petitioner from an order confirming the report of commissioners, awarding damages to the land owner in the sum of $7,000.
    The amount of land taken is four and two hundred and twenty-five one-thousandth of an acre, and is a strip of land through a farm consisting of 217 acres. The proposed railroad divides the farm, leaving the house and barns and 46 acres of land on the north side and 167 acres on the opposite or south side of the railroad tracks. The farm is situated in the Mohawk Valley, in the town of German Flats, in the county of Herkimer, and near the two villages of Herkimer and Mohawk.
    The court at General Term, after holding that where a part of an entire piece is taken, the land owner is entitled to the market value of the piece actually appropriated for the use of the'eompany, and the depreciation which occurs by the location and construction of the railroad to the balance of the property; and that the plain and simple way of arriving at the damages in such a case, is for the commissioners to inquire and ascertain what is the present value of the entire piece, and what will be the market value of that which is left after the construction of the railroad, said:

      •“ It is insisted by the learned counsel for the appellant, that the owner was permitted to give evidence as to the damages which would arise by reason of tbe exposure of tbe buildings to fire, and the greater cost of managing and operating the farm in consequence of the construction of the railroad.
    “ William Iionck was called as a witness by the owner, and gave his opinion as to the value of the farm, before and after the construction of the road. On his cross-examination he was examined at length, and asked to state upon what basis fie estimated the value of the farm before and after the construction of the road, and he pointed out the injury the construction of the road would cause to that which remained, and the items of damage, and the inconveniences of managing and carrying on the farm.

      “ On his redirect examination he was asked this question: ‘ What are your items of the aggregate depreciation ? How do you make up this $9,000 and upwards, of depreciation % ’ This was objected to as ‘ incompetent, and that the damages should be as to the market value both before and after the proposed railway; that in making up the damages, assumed and estimated additional expenses of run-' ning the farm cannot be taken into consideration.’ And he answered _ as follows: ‘ I have several items. First. The loss in the quantity of 'production I put at sixty dollars; on account of the drainage, etc., I think sixty dollars per year. I put twelve hundred dollars on interest at five per cent to produce that amount. The driving and crossing with stock I put at fifty cents per day, amounting to one hundred and eightj'-two dollars and fifty cents for one year. For all time, three thousand six hundred and fifty dollars. I find another element, ■ the crossing and recrossing with teams to work the land on the south side. Third. I put the last item at one thousand three hundred and sixty dollars. Fourth. From fire there is some damage; I put that at sixty-two dollars per year. And for all time, twelve hundred and forty dollars.’

      “ The counsel for the railroad company moved to strike out all the evidence of the witness in answer to the last question, Qn the ground that it is immaterial, improper and incompetent, and that it usurps the province of the court; that the evidence is speculative and an estimation from beginning to end ; that the evidence is as to personal damages and assumed.; that there is no foundation in law or in fact for its reception. And then the counsel moved to strike out each item of the answer separately, and on the same ground. The motion was denied and an exception taken. . The opinion of the witness should have been limited to the market value of the farm after the completion of the road, taking into consideration all the incidental injuries to the remaining lands, if any.
    “ If the effect of constructing the road would be to expose the buildings to fire — to make the culture and management of the farm more expensive, or any of the lands less productive — they were proper elements to be presented to the consideration of the commissioners It was not, however, competent for the land owner to' attempt to prove, separately, the amount of damages arising from each of these causes of depreciation. The opinion of witnesses as to the separate items of damages must necessarily be uncertain, unreliable and largely speculative. The opinion of witnesses as to the market value of property is always received as competent, when such value is the subject of inquiry; provided the article has a market value and the witness is qualified to express an opinion. To permit the land owner to prove his damages, in the mode and manner attempted by this evidence, would.be a violation of the general rule of law fixing compensation for the lands condemned.

      “ The object and purpose of the statute is just and equitable in every respect, and should be faithfully adhered to, as affording a full and complete protection to the land owner and the corporation. By awarding to the owner the market value of the land actually taken, and adding thereto the depreciation in the market value of the lands remaining, as compared to their former market value, full and complete indemnity is secured to him. If separate items of damage could be proved in the manner attempted, and submitted to the commissioner's for their consideration, and the aggregate of damages determined therefrom, the result might be, in some instances, to award large damages to the owner, when, in fact, he has suffered none in consequence of depreciation in the market value of the land not taken.
    “ It not unfrequendy happens, when a track of land is divided into parcels by reason of the location of a railroad, that a portion is not as accessible and the management less convenient and more expensive, yet, as a whole, the market value would not be in the least depreciated. The statute forbids any allowance being made by the commissioners for the supposed benefits arising to the owner from the construction of the railroad, or the use to which the lands taken are to be devoted. This provision of the statute is intended to protect owners from the dangers and hazards of uncertain and speculative opinions. The rule adopted by the courts to limit the damages which may be awarded by the commissioners to the owner for injury to the part of the land not taken, to the actual .depreciation of the same in the market value, is to protect the corporation from uncertain and speculative damages, and should not be disregarded. The evidence objected to and received was not confined to a further examination by the respondent, to topics and inquiries introduced by the petitioner on cross-examination, and should be considered as evidence in chief. The circumstance that the witness had before given his opinion as to the depreciation of the land in market value, does not in any respect remove the objection. As the commissioners received this evidence over the objection of the petitioner, and denied the motion to strike the same from the record, it is to be presumed that they gave the same weight and consideration in making up the sum awarded as damages.
    “ The report of the commissioners should be set aside and new commissioners appointed to make another appraisal.”

      O. J. Palmer, for the railway company, petitioner, appellant.

      Joseph J. Dudleston, for the land owner, respondent.
   Opinion by

Barker, J.

Present — Smíth, P. <T., Hardin and Barker, JJ.

Order and report set aside, with ten dollars costs and disbursements, and the proceedings sent to new commissioners to be appointed by the Special Term.


text:
    Edward Evans and others, Appellants, v. Conrad Backer and Addison P. Hall, Respondents.

   — Judgment reversed and new trial ordered, costs to abide event. Opinion by Hardin, J., and dissenting opinion by Barker, J.


text:
    Utica City National Bank and others, Respondents, v. Catherine M. Doring and others, Appellants.

   — So much of the judgment appealed from as declares void and sets aside the four judgments in favor of the defendant Sylvester Doring, as committee, etc., is reversed and a new trial ordered as to tlie issues respecting said judgments, with costs to abide event, and the residue of the judgment appealed from affirmed, with costs as against the’ defendants other than the said committee. Opinion by Barker, J.; dissenting opinion by Hardin, J.


text:
    The Remington Paper Company, Appellant, v. Anna M. Dougherty and others, Respondents.

   — (1.) So much of the order as awards an allowance above the sum of five per cent upon the judgment of $734.38 and interest to the 20th June, 1882, reversed, with ten dollars costs and disbursements, and remainder of order affirmed. (2.) Order as to taxation of costs affirmed, with ten dollars costs and disbursements. Opinion by Hardin, J.


text:
    Frederick B. Potter, Appellant, v. Sylvanus K. Greene and others, Respondents.

   — Judgment reversed and new trial ordered, costs to abide event. Opinion by Barker, J.


text:
    Richard Schroeppel, Respondent, v. Ephraim Dingman and others, Appellants.

   — Judgment and order affirmed. Opinion by Smith, P. J.


text:
    George Gorham, Executor, etc., Appellant, v. Joseph Price, Respondent.

   — Judgment reversed and new trial ordered, costs to abide event. Opinion by Hardin, J.


text:
    In the Matter of the New York, Lackawanna and Western Railway Company, to Acquire Real Estate of Minnie Van Zandt and others.
   — Order affirmed, with ten dollars costs and disbursements, payable out of the income of the fund. Opinion by Hardin, J.


text:
    Thomas E. Kinney, Respondent, v. Ellis H. Roberts & Co., Appellant.

   — Order reversed with leave to defendant to renew application. Opinion by Barker, J.; Smith, P. J., dissenting.


text:
    The Rochester Savings Bank, Plaintiff, v. J. Moreau Smith, and Emma Herrick, Executors, and others, Defendants and Respondents. (David F. Baker, Purchaser, Appellant.)
   Order affirmed, with ten dollars costs and disbursements. Opinion by Hardin, J.


text:
    Fanny Kyle and another, Appellants, v. George A. Kyle, Executor, etc., Respondent.

   — Decree of surrogate affirmed, with costs of the appeal payable out of the estate. Opinion by Hardin, J.


text:
    Emil Yund, Executor, etc., Respondent, v The New York Central and Hudson River Railroad Company, Appellant.

   Judgment and order reversed and new trial ordered, costs to abide event. Opinion by Barker, J.


text:
    Josephine Sahler, Respondent, v. Jennie L. Williams and others, Appellants.

   — Judgment reversed and a new trial ordered before another referee, costs to abide event. Opinion by Barker, J.


text:
    William H. Robinson, Respondent, v. The National Bank of Newberne, Appellant.

   — Judgment affirmed. Opinion by Smith, P. J.; Hardin, J., not sitting.


text:
    Francis D. Ormes and another, Appellants, v. Charles S. Baker, Respondent.

   — Order reversed and motion for appointment of a receiver granted, with ten dollars costs and disbursements, the receiver to be named by the special county judge on an application to be made to him for that purpose on notice. Opinion by Smith, P. J.


text:
    Emily Butler, Appellant, v. Francis X. Meyers, Respondent.

   Judgment and order affirmed. Opinion by Barker, J.


text:
    Caroline A. Stewart, Appellant, v. George Crysler and Jonathan X. Crysler, Respondents.

   — Judgment affirmed, with costs. Opinion by Hardin, J.


text:
    Emeline T. Rooney, Respondent, v. Delilah A. Stearns and others, Executors, etc., Appellants.

   — Judgment and order reversed and new trial ordered in the Onondaga County Court, costs to abide event. Opinion by Smith, P. J.


text:
    William Staufenbil, Respondent, v. George R. W. Wolfe, Appellant.

   — Judgment and order affirmed, with costs. Opinion by Barker, J.


text:
    James Denick, Appellant, v. William B. Hubbard, Respondent.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by Smith, P. J.


text:
    Melvin Briant, Respondent, v. Charles I. Holbrook, Appellant.
   Judgment affirmed. Opinion by Hardin, J.


text:
    Jacob Neu, by Guardian, etc., Respondent, v. James McKechnie and another, Appellants.

   — Judgment and order affirmed. Opinion by Barker, J.


text:
    James F. Fox, Receiver, etc., Respondent, v. Horace L. Hodge, Appellant, Impleaded, etc.

   Judgment reversed and new trial ordered before another referee, costs to abide event, unless the respondent shall stipulate to reduce the judgment as indicated in the opinion, in which case the judgment as so reduced is affirmed, with costs. Opinion by Smith, P. J.


text:
    Jacob L. Clift, Respondent, v. George Barrow, Appellant.
   Judgment and order reversed and new trial ordered, costs to abide event. Opinion by Barker, J.


text:
    Nancy Watts and others, Appellants, v. James Ronald, Executor, etc., Respondent.
   Order of surrogate reversed and proceedings remitted to the surrogate of Chautauqua county, with directions to proceed therein, with costs to be paid out of the funds in the hands of the executor. Opinion by Barker, J.


text:
    Caroline Bryan, Respondent, v. Hiram Sibley, Appellant.

   Judgment and order reversed and new trial ordered, costs to abide event. Opinion by Hardin, J.; Smith, P. J., not sitting.


text:
    Matthew Poor and another, Respondents, v. The National Union Bank of Watertown and others, Appellants.
   Judgment and order affirmed. Opinion by Smith, P. J.


text:
    Harvey Pierson, Respondent, v. John Van Marter, Appellant.
   Judgment affirmed. Opinion by Smith, P. J.


text:
    Jane C. Coleman, Respondent, v. Oliver C. Wright, Appellant, Impleaded, etc.

   — Judgment affirmed, with costs. Opinion by Barker, J.


text:
    William H. Millett, Respondent, v. George W. Head and another, Appellants.

   — J udgment and order affirmed. Opinion by Smith, P. J.


text:
    Stephen H. Powers and others, Respondents, v. George Benedict, late Sheriff, etc., Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide event, unless the plaintiff stipulates to modify the judgment by reducing the rate of interest allowed by the referee from seven to six per cent, in which ease the judgment as so modified is affirmed, with costs. Opinion by Hardin, J.


text:
    Oliver H. P. Champlin and another, Respondents, v. Thomas Stoddart, Appellant, Impleaded, etc.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by Barker, J.


text:
    Washington A. Cornwall, Respondent, v. William L. Isham, Appellant.
   Judgment affirmed. Opinion by Barker, J.


text:
    Stephen Winchell, Respondent, v. David Winchell and others, Appellants.

   — Judgment and order affirmed. Opinion by Smith, P. J.


text:
    Luke Wells, Respondent and Appellant, v. The Board of Education, etc., Respondent and Appellant.
   — • That part of the judgment appealed from by plaintiff affirmed, and so much of the judgment appealed from by defendant as allowed a temporary injunction pending appeal reversed, with costs of one appeal to defendant. Opinion by H ardin, J.


text:
    Sarah E. Linhart, Respondent, v. Samuel H. Kinne, Appellant.
   Judgment and ordet reversed and a new trial ordered, costs to abide event. Opinion by Barker, J.


text:
    Henry Winchell, Appellant, v. Stephen Winchell and another, Respondents.
   Judgment affirmed, with costs. Opinion by Smith, P. J.


text:
    George H. Converse, by Guardian, etc., Respondent, v. Artemus B. Walker, Appellant.

   — Declined to be considered on the ground that the appeal papers are not properly certified and do not contain the statement required by the rules.


text:
    Henry E. Dunham, Respondent, v. George S. Hayden, Appellant.

   — Judgment of County Court affirmed.


text:
    Harriet M. Mackey, Respondent, v. Herbert D. Babbitt, Appellant.

   — Judgment and order affirmed. Opinion by Barker, J.


text:
    Josephine R. Barrow and another, Executors, etc., Respondents, v. George Spies and others, Appellants.

   — Judgment .affirmed, with costs, on the opinion of the county judge.


text:
    Lewis Stahleger, as Administrator, etc., Respondent, v. Charles Richards, Appellant.

   — Judgment affirmed, with costs. Opinion by Smith, P. J.


text:
    Albert V. Tillman, Appellant, v. The Buffalo and Idaho Gold and Silver Mining Company, Respondent.

   — Judgment affirmed, with costs. Opinion by Hardin, J.


text:
    Peter Y. Christian, Respondent, v William J. Glen, Appellant.

   — New trial ordered, costs to abide event. Opinion by Barker, J.


text:
    Eliza Vick, as Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   — Judgment and order affirmed. Opinion by Smith, P. J.;

Barker, J., dissenting.


text:
    Emanuel Durnherr, Respondent, v. Gustavus Rau, Appellant, Impleaded, etc.

   — Judgment affirmed, with costs. Opinion by Hardin, J.;

SMrrH, P. J., not sitting.


text:
    Thomas McGoey, Respondent, v. Henry P. Ranger and Lyman L. Stone, Appellants.

   — Judgment reversed and new trial ordered, costs to abide event. Opinion by Smith, P. J.


text:
    Charles Hammond, Appellant, v. Francis Butts, Respondent.

   — Judgment affirmed. Opinion by Hardin, J.


text:
    The People of the State of New York ex rel. Timothy McDonough, Appellant, v. The Board of Managers of the Buffalo State Asylum for the Insane.
   Judgment affirmed, with costs. Opinion by Barker, J.


text:
    In the Matter of the Petition of the Rochester and Pittsburgh Railroad Company, Respondent, v. Harriet A. Moore, Appellant.

   — Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Ruth P. Dimmick, Appellant, v. Elizabeth M. Cooley, Respondent
   Motion to modify order of last General Term so as to allow costs, etc., denied, without costs.


text:
    Lyman H. Granger, Appellant, v. Henry H. Craig, Respondent.
   Motion to modify order of last General Term denied, without costs.


text:
    Charles C. Steele, Respondent, v. Asa D. Ward and others, Appellants.

   ■— Reargument ordered.


text:
    Henry Sheldon and another, Respondents, v. Henry Clews, Appellant.
   Judgment and order reversed and new trial ordered, costs to abide event. Opinion by Smith, P. J.


text:
    Joseph Nunn, Jr., Appellant, v. George Retzenthaler and others, Respondents.

   — Judgment and order reversed and new trial ordered in Monroe County Court, costs to abide event. Opinion by Hardin, J.


text:
    Amos H. Crawford, Respondent, v. Alonzo Goddard, Appellant

   — Order affirmed, with ten dollars costs and disbursements.


text:
    Thomas Lee, Appellant, v. The Board of Supervisors of Jefferson County and others, Respondents.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    The Pitts Agricultural Works, Respondent, v. George Cotter, Appellant.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    John M. Young and others, Respondents, v. William McCarty, Jr., and others Appellants.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    S. Clark Lewis, Appellant, v. White’s Bank of Buffalo, Respondent.

   — Order affirmed, with ten dollars costs and disbursements, to be paid by the assignee out of the fund.


text:
    Dorothea Rankert, a Supposed Lunatic, Respondent, v. Jacob Rankert, as Committee, etc., Appellant.

   — Order appealed from affirmed, with ten dollars costs and disbursements, to be paid by the appellant personally.


text:
    Mary J. Adams, Appellant, v. Artemus L Adams, Respondent.
   Order reversed as to the item of ten dollars and the direction to indorse the same on the execution, and 'affirmed in all other respects, without costs of the appeal to either party.


text:
    Garret C. Ryckman, Respondent, v. George S. Riley, Appellant.

   — Judgment affirmed, with costs.


text:
    Orson C. Linderman, Appellant, v. Marion J. Farquarson, Respondent.

   — .Judgment reversed and new trial ordered before another referee, costs to abide event. . (Mem. by Macomber, J.)


text:
    Ira H. Gibson and others, Respondents, v. The Black River Insurance Company, Appellant.
   Judgment and order affirmed.

Hardin, J., not sitting.


text:
    Obadiah Stephens, Appellant, v. Peter Cornell, Respondent.

   — Judgment of County Court reversed, and that of justice affirmed, with costs.


text:
    Frederick Boomis, as Trustee, v. Silence J. White and others.
   Motion to modify judgment of last term denied, without costs.


text:
    Lucinda Simmons, Respondent, v. John H. Osgoodby, Appellant.
   Motion for leave to appeal to the Court of Appeals’ denied, without costs.


text:
    Henry R. Pierson, Receiver, etc., Respondent, v. John D. Safford, Appellant.

   — Motion denied, without costs.


text:
    Edgar Munson and others, Respondents, v. The Syracuse, Geneva and Corning Railway Company and another, Appellants.

   — Motion for reargument denied.


text:
    Lewis E. Smith, Appellant, v. William Falen, Respondent.

   — Motion for reargument denied.


text:
    Ann Smith, Respondent, v. Ceylon W. Carr, Appellant.
   Motion to open default denied, without costs.


text:
    Charles B. Goodrich, Respondent, v. The Pennsylvania and New York Canal and Railroad Company, Appellant.

   —Motion for leave to appeal to the Court of Appeals denied.


text:
    Alexander B. Williams v. Belle McIntyre.
   — Motion for reargument denied.


text:
    In the Matter of the Accounts of the Treasurer of Genesee County.
   — Motion denied.


text:
    Fox v. Abbott.
   — Motion for reargument and for leave to appeal to the Court of Appeals denied.

Hardin, J., taking no part.


text:
    Fannie P. Dampf, Appellant, v. Robert C. Vose, Respondent.
   Judgment and order affirmed.


text:
    William Roe, Respondent, v. John Hills, Appellant.

   — Judgment of the County Court affirmed, with costs.