text:
    In the Matter of ANDREW HOOD.

      Costs — when a reversal by an appellate court of a judgment with costs, entitles the successful pan'ty to the costs of the court below.

    Motion to resettle an order of the General Term made February 13, 1883, in pursuance of a decision of that court. That order reversed a decree of the surrogate requiring the appellant Frederick Hood to pay Maria Louisa Hood a large sum of money and awarded the appellant one bill of costs.
    The court at General Term said: “ There was no misapprehension either in the decision or the order. We intended to reverse the surrogate’s decree with costs, and we intended to deal with the whole subject of the costs. It was all before us, -and the decree was reversed and its entire effect reversed. We decided that the appellant should have succeeded before the surrogate, and if he had done so he would have been entitled to costs there. We intended to place him in the position he would have occupied had the decree of the surrogate been in his favor. It is claimed that no costs should have been awarded against Maria Louisa Hood, for the reason that she was not a party to the proceedings. What is meant by this was not very cle'ar. The decree ordered the money paid to her and she was a very necessary party to the appeal and'her attorneys appeared for her. No such question was raised on the appeal, and it must have been assumed that she was regularly brought into the appellate court.
    “ While it may be assumed that when an appellate court awards costs the effect is to include costs of sucli court only, yet, if it assumes to deal with the whole subject and wipes out and reverses the judgment or decree appealed from with costs, that includes all the costs of all the inferior courts. {Mtirtha v. Ourley, 92 N. Y., 359., unreported.) Such was the effect allowed by this court to the decision of the Court of Appeals, In the Matter of Walsh (89 N. Y., 453), where all of the proceedings below, both in Special Term and General Term, were dismissed with costs, we held that the court intended to control the whole subject and award costs in the lower courts, such'were our views and these are our reasons for the order complained of.”

      Edward P. Wilder, for the executor.

      Poe c& MaeMin, for William and Anna Hood.
   Opinion by

Dykman, J.;

Barnard, P. J., and Pratt, J.,, concurred.

Motion for resettlement of order of General Term denied, with costs and disbursements.


source: Caselaw Access Project

author: Dykman, J;

license: Public Domain

text:
    THE POUGHKEEPSIE SAVINGS BANK, Respondent, v. THE MANHATTAN FIRE INSURANCE COMPANY, Appellant, Impleaded, etc.

      Agency — when a fire inswanee company is estopped from setting up an erroneous statement as to the oxonership of the property, which was inserted in the policy by the mistalce of its agent.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    In April 1869, the defendant Edward Cranston, being the owner of certain land in Ulster county, executed and delivered a mortgage on the same accompanied by Iris bond to Edgar B. Newkirk, to secure the payment of' §800, which came to the plaintiff by regular assignment. Cranston procured a policy of insurance on the house upon the premises to the plaintiff. Olay, Merrill and Dubois were the agents of the Connecticut Insurance Company at Kingston in Ulster county, and through them the plaintiff obtained several renewals of the policy, the last one expiring October 23,1879. The loss, if any, was payable to the plaintiff as collateral to the mortgage.
    At the expiration of the last renewal, these same agents forwarded by mail to the plaintiff the policy in suit issued by the defendant, on the same building, with mortgage condition slips .attached, and Edward Cranston paid the premium. These agents were the agents of the defendant at Kingston, and without the knowledge of the plaintiff had ceased to be the agents of the Connecticut Company. Previous to the issuance of the policy in suit, the title of the property had been changed by the foreclosure of a second mortgage, and became vested in the defendant Anna Cranston, who was then the owner. This fact was then unknown to the plaintiff, the defendant and the agents, and no representation or request of any kind respecting the property or the policy were made to the defendant or the agents by any person.
    The property was destroyed by fire June 25, 1881, and the loss has been adjusted at $930. The mortgage of the plaintiff is unpaid.
    It was found by the trial court that the policy constituted an agreement by the defendant to insure the house described, and that the mistake made by the agents of the defendant in.naming the owner was not caused by any fraud or, misrepresentation. That by the payment and acceptance of the premium the owner acquired the right to the benefit of the insurance, and that the policy was valid as to the plaintiff and the owner. Judgment went for the plaintiff.
    The court at General Term said : “We find no reason to question its correctness. The policy was delivered and the premium received with full purpose of insuring the building, and there was no fraud or misz'epresentation. Clearly the error of the agents cannot be set up by the company as a breach of warrantee, and the policy of insuz’ance should be applied to the subject and interest intended to be covez-ed. (Bidwell v. North - Western Ins. Go., 19 N. Y., 182.)
    “ The just rule on the subject now is, -that where a mistake is the fault of the agent the insurer is bound to i-espond on the contract actually made. ” (Rowley v. Empire Insurance Company, 36 N. Y., 550.)

      JR. E, Wilkinson, for the appellant.

      R. E. Taylor, for the respondent.
   Opinion by

Dykman, J;

Peatt, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


author: Barnard, P. J;

text:
    THE PEOPLE OF THE STATE OF NEW YORK on the Relation of SARAH B. KIRK et. al. v. GEORGE W. WEIANT, as Surrogate of the County of Rockland, ROBERT ALLEN, Jr., and SARAH M. DOIN et al.

      Surrogate — not disqualified from acting by reason of Ms having been attorney for the testator at the time of his death— he is not disqualified because he may be called as a witness by the contestants— Oode of Oirnl Procedure, sec. 2496.
    Application for a writ of prohibition, to prohibit the surrogate of Rockland county from proceeding with the probate of the will of Elisha Ruckman, deceased.
    The papers in the proceedings alleged that, at the time of making the will and for three years previous to the death of Elisha Ruck-man, the surrogate of Rockland county was the attorney and counsel for deceased, and that at the time of his death he was his attorney in three actions pending in this court and in the courts of United States. That he was well acquainted with the deceased during his lifetime, and knew the surroundings of the deceased, his mental and physical condition, and the influences that surrounded him. This motion was made before the surrogate, who refused to entertain it.
    It was claimed that the surrogate was disqualified, because; 1st. He was the attorney and counsel of deceased up to the time of his death, and that the actions are still pending and undetermined, and which actions and their status may be affected by the probate of this will. 2d. That he was a necessary and material witness to the contestants on the probate of the will.
    The court at General Term said: “ The surrogate is not disqualified by the provision of section 2496 of the Code of Civil Procedure. That section only applies to subscribing witnesses to' wills • or to witnesses to establish non-cupative wills. The expression, witness to a will, lias a definite meaning in law. It does not nfean all witnesses who can be called in support of a will, but only those who are subscribing witnesses, properly so called, and those by whose testimony wills as such are to be proven. The surrogate is not generally disqualified. He was an attorney for a testator in certain actions which the deceased had pending before and at the time of his death. These actions are in no way affected by the proof of the will, and the surrogate has ceased to, be an attorney in them. It is not claimed that the relator wished the surrogate as a witness for her upon her contest in reference to the probate of the will. It is claimed that possibly the surrogate by his dealings with the deceased may have formed an opinion as to his capacity to make a will or as to its having been obtained by undue influence or fraud. The papers show that the surrogate did not draw the will j had no knowledge of its execution, or in fact that there was a will until after the decedent’s death. The case then simply is this: when the capacity of a testator is disputed, if a surrogate has lived in the community with the deceased testator and in common with them may be supposed to know of his capacity he may be disqualified as surrogate. We deem the law to be otherwise.
    The motion for a writ of prohibition should therefore be denied, with costs.

      George V. Brower, for contestants Sarah B. Kirk and others.

      Daniel P. Barnard, for contestants John and James Boylan.

      Seth B. Cole, for George W. Weia.nt, surrogate.
   Opinion by

Barnard, P. J;

Dykman and Pratt, JJ. concurred.

Motion for writ of prohibition denied, with costs.


author: Barnard,

text:
    David B. Iserman, as sole Executor, etc., of James Iserman, Deceased, Respondent, v. Tunis D. Seaman, as Administrator, etc., of Jane Iserman, Deceased, Appellant.

   Order granting injunction reversed, with costs and disbursements. Opinion by

Barnard,

P.'J. Dykman, J., not sitting.


author: Dykman, J.

text:
    Thomas H. Bowles, by Guardian, Respondent, v. Frederick Habermann, Appellant.

   —Judgment affirmed, with costs. Opinion by

Dykman, J.


author: Pratt, J.;

text:
    George W. Farnam and another, Appellants, v. Hall F. Baldwin and another, Respondents.

   Judgment affirmed,' with costs. Opinion by

Pratt, J.;

Dykman, J., not sitting.


author: Barnard, P. J.

text:
    John Fallon, Respondent, v. Rosanna Lawler, Appellant.

   Judgment reversed and a now trial granted, costs to abide event, order of reference vacated. Opinion by

Barnard, P. J.


author: Barnard, P. J.;

text:
    Albert V. Meeks, Executor, etc., Respondents, v. John C. Rankin and another, Appellants.

   Order refusing to vacate order directing payment of money affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


author: Justices Barnard and Pratt.

text:
    Oscar F. Archer, v. Thomas W. Radford.
   Motions denied, with ten dollars costs. Opinions by

Justices Barnard and Pratt.


text:
    In the Matter of John Pierce an Imprisoned Debtor.
   Motion for reargument denied, .with ten dollars costs. Opinion by

Barnard, P. J.


author: Pratt, J.

text:
    The People of the State of New York, Respondents, v. Jeremiah White, Appellant.

   Conviction affirmed. Opinion by

Pratt, J.


text:
    Aaron B. Whitlock, Respondent, v. William J. Sexton, Administrator, etc., Appellant.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Cotton W. Bean, Appellant, v. James O. Cole, Sheriff, etc., Respondent.

   Order denying new trial for newly discovered evidence affirmed, with, costs and disbursements. Opinion by

Pratt, J.;

Diicman, J., not sitting.


text:
    John S. Harris v. Aaron Healy, Respondent. David Van Wart, Appellant, Impleaded, etc.

   Order affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    Alexander Hamilton and others, Respondents, v. Charles Godfrey Gunther and others, Appellants.

   Judgment upon order that the demurrers of appellants, were frivolous affirmed, with costs. Opinion by

Dykman, J.


text:
    Theodore B. Gates, Appellant, v. Henry S. Young and others, Respondents.
   Order staying examination reversed, with costs and disbursements. Opinion by

Pratt, J.;

Dykman, J. not sitting.


text:
    William C. Farleigh, Respondent, v. Aaron Berwin, Appellant, Impleaded, etc.

   Order referring action reversed, with costs and disbursements. Opinion by

Barnard, P. J.


author: Dykman, J.;

text:
    Ida S. Bush, Respondent, v. William B. Post and others, Appellants.

   Order refusing leave to assignee of judgment creditor to become party defendant affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Sarah F. Hunter, Administratrix, Respondent, v. Joseph J. Little and another, Appellants.

   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Phillips Weeks, Respondent, v. William H. Clark and others, Appellants.

   Order refusing to set aside sale affirmed, with costs and disbursements. Opinion by

Pratt, J.


author: Barnard, P. J., and Dykman, J.'

text:
    James Roach v. Benjamin Odell, Sheriff.

   Order changing place of trial reversed, with costs and disbursements, defendant to stipulate as offered by Mr. Dickey. Opinion by

Barnard, P. J., and Dykman, J.'


text:
    In the Matter of Final Accounting of Swane Autrop, Administrator.

   Motion for re-settlement of order denied, with ten dollars costs. Opinion by

Dykman, J.


text:
    Henry Hoffman, Appellant, v. William S. Marrin and others Respondents.

   Order granting stay affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Jans Jacobsen Frogner, Respondent, v. Dampskibs Selskabet, “Thingvalla” etc., Appellant.

   Order denying motion to make complaint more definite and certain affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    John O’Brien, Respondent, v. The State of New York, Appellant.

   Decision of state board of audit affirmed, with costs. Opinion by

Dykman, J.


text:
    George M. Curtis and others, Appellants, v. Fannie S. Greene, Respondent.

   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Dykman, J., not sitting.


author: Pratt, J7;

text:
    Margaret Hickey, as Administratrix, Appellant, v. The Sylvan Lake Ore and Iron Company, Respondent.

   Judgment affirmed,, with costs. Opinion by

Pratt, J7;

Barnard, P. J., not sitting.


text:
    Mary N. Johnson, as sole Executrix, etc., Respondent, v. John I. Lawrence and others, Appellants.

   Part of judgment appealed from affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    David G. Bryant, Respondent, v. Lloyd Stevens and others, Appellants.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    John W. Blauvelt, as Executor, Respondent, v. William B. Slocum, Appellant, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Catherine E. Dodge, Respondent, v. Frederick M. St. John, Appellant.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


author: Barnard,. P. J.;

text:
    Thomas Coxhead, Appellant, v. The Brooklyn, Bath and Coney Island Railroad Company.
   Exceptions overruled and order dismissing complaint affirmed, with costs. Opinion by

Barnard,. P. J.;

Pratt, J., not sitting.


text:
    William H. Pink, Jr., Respondent, v. Catherine L. Barberie and another, Appellants.

   Judgment and order refusing to modify same affirmed, with Costs. Opinion, by'

Barnard, P. J.


text:
    John Reed, Appellant and Respondent, v. George McConnell and Walter L. Gardner, Appellants and Respondents.

   J udgment appealed from by defendants affirmed,. with costs. ■ Part of judgment appealed from by plaintiffs affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Emor Haines and others, Appellants, v. William C. Herrick and others, Respondents.

   Judgment and order dismissing complaint affirmed, with costs. Opinion by

Pratt, J.;

Hykman, J., not sitting.


author: Hykman, J.;

text:
    Hiram Clark, Appellant, v. Sidney Stillman and others, Commissioners of Highways, Respondents.

   Judgment affirmed, with costs. Opinion by

Hykman, J.;

Barnard, P. J., not sitting.


text:
    James Mahon, Jr., Respondent, v. John Noon, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.;

Pratt,. J., not sitting.


text:
    James W. Murphy, Respondent, v. John C. Orr and others, Appellants.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Hykman, J., not sitting.


text:
    John Baizley, Respondent, v. James H. Workman and another, Appellants.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Hykman, J.

text:
    Charles Roht, v. Henry Y. Attrill.
   Order directing payment of money to receiver reversed, with costs and disbursements and motion denied, with ten dollars costs. Opinion by

Hykman, J.

Pratt, J., not sitting.


text:
    The First National Bank of Helena, Montana Territory, v. James K. O. Sherwood.
   Judgment affirmed, with costs.. Opinion by

Hykman, J.


text:
    The People of the State of New York ex rel. Samuel B. Duryea, v. The Brooklyn Park Commissioners, Respondents.
   ’Writ of certiorari quashed, with costs to each of the respondents answering separately. Opinion by

Pratt, J.


text:
    James C. Debevoise, as Administrator, etc., Appellant, v. The New York, Lake Erie and Western Railroad, Respondent.
   Judgment and order denying new trial affirmed, with costs.. Opinion by

Hykman, J.


text:
    Catherine Lockwood, Administratrix, etc., Appellant, v. The New York, Lake Erie and Western Railroad, Respondent.

   Order dismissing complaint denying new trial and judgment reversed and new trial granted, costs to abide event. Opinion by

Pratt, J.


text:
    Charles B. Walter, Plaintiff, v. Oliver W. Barnes and another, Defendants.

   Exceptions .overruled and order granting nonsuit affirmed and judgment ordered thereon, with costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    James Drinning, Appellant, v. Mary J. Powell, Respondent

   Judgment affirmed, with costs. Opinion by

Hykman, J.


text:
    Gustav Danhoff, Respondent, v. William H. Burbank, Appellant.

   Judgment of county court affirmed, with costs. Opinion by

Dykman, J.


author: Pratt, JV;

text:
    C. Coles Dusenbury, Respondent, v. Mutual Union Telegraph Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Pratt, JV;

Dykman, J., not sitting.


text:
    Charles Stewart and others, Respondents, v. William D. Marvel, Appellant.

   Judgment as modified reversed and new trial granted, costs to abide event. — Order of reference vacated. Opinion by

Barnard, P. J.


text:
    Samuel F. Cowdrey and another, Appellants, v. Jeremiah O’Connell and another, Respondents.

   Judgment affirmed, witli costs. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Patrick F. Duffy, Respondent, v. The New York and Manhattan Beach Railway Company, Appellant.

   Judgment and order denying new trial reversed, and now trial granted, costs to abide event.

Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Rosanna C. McGuire, Respondent, v. Philip O’Brien, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    The People of the State of New York ex rel. Amelia M. Robinson, Respondent, v. Michael O’Keefe, Appellant.

   —Judgment reversed and writ dismissed, with costs. Opinion by

Pratt, J.


text:
    William Barnett, Appellant, v. J. Monroe Taylor, Respondent.

   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    William Conselyea, Appellant, v. Dudley Blanchard and John H. O’Rourke, Respondent, Impleaded, etc.

   Judgment appealed from by plaintiff reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    William Conselyea, Appellant, v. Dudley Blanchard and John H. O’Rourke, Respondents. George F. Drew and Charles L. Bucki, Appellants, Impleaded, etc.

   -Judgment appealed from by defendants Bucki and Drew reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    William B. Ditmars, Respondent, v. Abraham M. Levy, Appellant, Impleaded, etc.

   Judgment and order denying new trial and order of 2d of March, 1883, discontinuing action as to same defendants affirmed,witb costs. Opinion by

Pratt, J.


text:
    Thomas Maloney, Appellant, v. The Brooklyn City Railroad Company, Respondent.

   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    George E. Apsley, Appellant, v. John Wood, Respondent.

   Motion to dismiss appeal granted, with costs of motion; order setting aside judgment modified by making it optional with plaintiff to refer or not and as so modified affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    William S. Peterkin, Appellant, v. Catherine Costello, Respondent.

   Judgment reversed and new trial granted, costs to abide event. Opinion by

Dykman, J.


text:
    Frederick A. Schroeder and another Respondents, v. John Lear and another, Appellants.

   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    The People of the State of New York v. The Board of Trustees of the Village of Flushing.
   Order, affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    Winifred Cooper, Administratrix, etc., Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.

   Order setting aside verdict and dismissing complaint and judgment thereon reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    John Larkin, v. Agnes Misland, Appellant, and Louisa Misland, Respondent.

   Order confirming report affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Bernard Miller, Appellant, v. The City of Newburgh, Respondent.
   Peargument ordered.

Barnard; P.' J., not sitting.


text:
    John Higgins, Respondent, v. The General Trans-Atlantic Company, Appellant.

   —Order setting aside nonsuit and granting new trial reversed, with costs. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    John D. Christie, Respondent, v. Charles W. Oldfield, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Daniel W. Travis, Respondent, v. Elbert P. James, Appellant.
   Order affirmed, for non-submission of papers according to order of General Term.


text:
    Elias Howard, as General Guardian, etc., Appellant, v. Phebe Stillwell and others, Respondents.

   Order admitting to probate will of George Stillwell affirmed, witb costs. Opinion by

Barnard, P. J.


text:
    Ernst W. Fischer and others, Appellants, v. Wilhelmina Mohr, Respondent.

   Decree of surrogate reversed and proceedings remitted. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. — Smith v. Emil Schiellein and others.
   Order granting writ of mandamus affirmed, upon opinion at Special Term.

Dykman, J., disjenting.


text:
    Edward C. Pease, Respondent, v. William Kenny and another, Appellants.

   Judgment reversed and new trial granted, costs to abide event. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    In the Matter of the Distribution of Surplus Moneys of John C. Zahrt.
   Decree of surrogate affirmed, with costs. Opinion by

Barnard, P. J.;

Dykman, J., dissenting.


text:
    Carman Smith, Respondent, v. Christopher Risley, Appellant.

   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Charles F. Strohn, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Hykman' J. ;

text:
    Henry C. Demming, Respondent, v. Edward M. Parrott, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Hykman' J. ;

Pratt, J., not sitting.


text:
    John Titus, Respondent, v. The Jewell Milling Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    John A. Husson, Appellant, v. William G. Oppenheim, Respondent.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Dederick Tragmar, Appellant, v. John M. Sagar and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    William G. Ward, Appellant, v. The Town of Southfield and another, Respondents.

   Judgment affirmed, with costs. Opinion by

Hykman, J.


author: Pratt:, J.

text:
    John Dunn, Appellant, v. Henry P. Journeay, Respondent.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt:, J.


text:
    The Kings County Fire Insurance Company, Appellant, v. Hannah Stephens, Respondent.

   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    The New England Granite Works, Respondents, v. Edmund Doane, Sheriff, etc., Appellant.

   Judgment reversed and new trial granted, costs to abide event. Opinion by

Hykman, J.


author: Brown, J.

text:
    In the Matter of the Application of Edward B. Long, to compel an Accounting.
   Order affirmed. Opinion by

Brown, J.


author: Barnard, P. .J

text:
    Robert C. Clapp and another, Executors, etc., v. Thomas R. Hawley and others.
   Judgment appealed from modified in accordance with opinion. Order to be settled by Justice Barnard. Opinion by

Barnard, P. .J


author: Barnard, F. J.

text:
    Mary McCullough, as Administratrix, etc., v. Thomas R. Sharp, Receiver, etc.

   Judgment and order denying new trial affirmed, witb costs. ' Opinion by

Barnard, F. J.


text:
    Philando C. Langdon, Respondent, v. Charles E. Evans, Appellant.

   Judgment reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    In the Matter of the Guardianship of Milton J. B. Moore, a Minor.
   Order of surrogate affirmed, with costs aud disbursements. Opinion by

Pratt, J.


text:
    The People of the State of New York ex rel. The New York and Harlem Railroad Company, Appellant, v. Hiram Rogers and others, Respondents.

   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    The Duplex Safety Boiler Company, Appellcunt, v. C. Henry Garden and others, Respondents.

   Order setting aside verdict and judgment thereon reversed and new trial granted, costs to abide 'the event. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Charles J. Sutphen, Administrator, etc., Appellant, v. Margaret A. Mott, and others, Respondents.

   Decree of surrogate so far as it directs the payment of Margaret Mott’s claim reversed, with costs.


author: BoaedmaN, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN SWINBURNE, Respondent, v. MICHAEL N. NOLAN, Appellant.

      Action to try title to office— right of the relator, after judgment in his favor, to recover the-salary received by the defendant — how he should plead his claim — Code of Oivil Procedure, sec. 1953.
    In this action, brought to determine the title to the office of Mayor of the city of Albany, a verdict was rendered in favor of the relator and a judgment entered declaring him entitled to the office. Thereafter, upon the application of the relator, an order was made allowing him to file and serve a “ suggestion. or statement, or supplemental complaint,” alleging that he had sustained damages to the amount of $4,005.43 by reason of the defendant’s having drawn the salary of the office up to the time of the entry of the judgment; and requiring the defendant within twenty days from the service of a copy of the said suggestion or statement, or supplemental complaint, upon his attorney, to file his answer thereto duly verified.

      Held, that as, under section 1953 of the Code of Oivil Procedure, the relator is entitled to recover his damages in the same action in which his title to the office is established, and as the claim for damages cannot be set forth in the original, complaint, but must be alleged in some manner after the judgment upon the right to the office has been rendered, the order was properly granted, except in so far as it compelled the defendant to answer the suggestion under oath.
    That this provision should be stricken out of the order, and that as so modified it should be affirmed.

      Appeal from an order made at the Albany Circuit granting leave to the relator, after verdict and final judgment in this action, to file and serve a suggestion or statement, or supplemental complaint, claiming to recover damages against the defendant, and requiring the defendant to file his answer thereto duly'verified.
    The action was brought to determine the title to the office of mayor of the city of Albany. The complaint alleged that the relator was duly elected to the office, and that the defendant had illegally intruded into and usurped the same, and prayed relief that the relator be adjudged entitled to the office, and for costs and the imposition of a fine of $2,000 upon the defendant. ' There was no allegation in the complaint averring or claiming damages, or praying any relief for damages.
    The defendant allowed a default at the trial, and a verdict was entered that the relator was duly elected to the office and' judgment was rendered accordingly. The judgment was given on the 25th day of June, 1883. Four days afterwards the relator presented the following verified supplementary suggestion: “And now, at this day, to wit, the 29th day of June, in the year 1883, at the City Hall, in the city of Albany, before the justice of the Supreme Court, there holding the circuit, comes the said John Swinburne, the above named relator, and, according to the statute in such case made and provided, suggests to the said court and alleges by way of supplement to the complaint herein that he, the said John Swinburne, hath sustained damages to the amount of $4,005.43, by reason of the usurpation by the said Michael N. Nolan of the office of mayor of the city of Albany, in the judgment herein mentioned; and the said John Swinburne also, in like manner, alleges and suggests upon information and belief that the said Michael N. Nolan has, since the complaint herein was found, •received from the chamberlain of the city of Albany as salary belonging and appertaining to said office of Mayor, for and during the period of his usurpation of said office, namely, from the 2d day of May, 1882, up to June 22, 1883, the said sum of $4,005 43, which said sum belonged of right to the said John Swinburne and not to the said defendant.
    Wherefore the said John Swinburne prays judgment for his said damages according to the form of the statute in such case made and provided.”
    Tbe order appealed from provided “ that the relator have leave to file and serve said suggestion or statement, or supplemental complaint, and that the defendant within twenty days after the service upon his attorney of a copy of said suggestion or statement, or supplemental complaint, file his answer thereto duly verified.”

      E. Gov/ntrymcm, for the appellant.

      Hemry Smith, for the respondent.
   BoaedmaN, J.:

Section 1953 of the Code of Civil Procedure says, that when a final judgment has been rendered upon the rights to an office in favor of the person alleged to be entitled thereto, he may r'ecover in the same action against the defendant the damages, etc. This shows that the proceeding to recover these damages is to be taken after the judgment has been rendered. If damages are to be recovered, there must be some trial and that must be had after the judgment on the right to the office. As a preliminary to such trial there must be, according to all good practice, some allegation of the relator’s right to damages and some response thereto of the defendant, or a failure to respond. Such an allegation could not be contained in the original complaint, for it is not until after judgment on the right to the office that the relator can allege his right to the damages. Indeed it is doubtful whether he has any cause of action for the damages before judgment establishing his right to the office.

Furthermore, if the allegation of damages were contained in the original complaint, it may be doubted whether any damages could be recovered which' accrued after the service of the complaint. While on the other hand, the actual damages might be the withholding of a salary down to the time of the judgment on the right to the office.

We think then, that the Code contemplated that the allegations of damages should be made after the judgment upon the right to -the office.

Another consideration may be stated. The claim to the office, although often made in part by the relator, is in theory always made on tbe part of tbe people. Tbe theory always is that the people alone have the right to remove the usurper of an office. When the people have done this and have established the right of another person, viz., the relator, he may then have for himself a claim of damages. This he may assert in the same action by a continued proceeding.

There can be no objection, as to such proceeding, in following the provisions of the Revised Statute. (2 R. S., 582, § 34, etc.) The abolition of the writ of quo warranto only changed the form. The remedies remained, and one of those remedies was the recovery of damages.

Under section' 439 of the Code of Procedure, this recovery of damages was to be “ by action.” It is said that in the original bill it was “ in the action.” However this may be, the Code of Procedure, as above cited, is conclusive that the recovery is to be “ in the same action.”

For the reasons above given the claim for damages cannot be set forth in the original complaint, but must be alleged in some manner after the judgment upon the right to the office. The Code of Civil Procedure must then have intended that the practice of the Revised Statutes should be substantially followed. The Revised Statute practice does not require a defendant to answer the suggestions unless he chooses to do so, nor was he required to answer under oath. These requirements should therefore have been omitted, and the order is in that respect modified.

Without indicating that the present proceeding should have been by Special Term order, the defendant’s rights' are not harmed by the modification suggested, or by an affirmance of the order, since such action leaves him in the position where he claims he should rightfully be, and where the court below may proceed promptly to adjust the rights of the parties as the law requires.

The order as modified is handed to the clerk to be certified on request to the parties to the action.

LearNed, P. J., and Bocees, J., concurred.

The order on file is as follows.:

“ An appeal from an order of the Special Term entered in the Albany county clerk’s office in the above entitled action on the 29th day of June, 1883, having been brought to argument and after hearing Henry Smith, Esq., of' counsel for the respondent, and Edwin Countryman, Esq., of counsel for the appellant; it is ordered, that the order so appealed from be modified, so as to read as follows, after the recital therein:

Ordered, That the relator have leave to file and serve said suggestion or statement or supplemental complaint, and that the defendant within twenty days after the service upon his attorney of a copy of said suggestion or statement or supplemental complaint, have leave to file an answer thereto, and that this action stand over until July 30, 1883, at 3.30 p. m., at the City Hall in - the city of Albany, to which time and place this court is to be adjourned,, with leave to either party to make such application or motion herein as said party may be advised.

And it is further ordered, that said order as so modified be and the same is affirmed, without costs to either party.


author: Learned? P. J.:

text:
    ADRIAN ISELIN, Jr., and COLUMBUS O’D. ISELIN, Respondents, v. HENRY ROWLANDS, Appellant.

      Action — must be brought by the real party in interest — an agent holding commercial papei'for collection cannot sue thereon.

    One to whom commercial paper has been indorsed and who holds it as an agent for the purpose of collection only, canno.t maintain an action thereon in his own , name.
    ' Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Hamilton Harris, for the appellant.

      A. W. Lansing, for the respondents.
   Learned? P. J.:

There is a circumstance in this case which is not clearly explained,, and which seems unaccountable under ordinary fair dealing.

On the 19th of May, 1881, Messrs. Badollet & 'Co. agreed to the-compromise with defendant. The amount of their claims thus-compromised, or intended to be compromised, was stated at about $2,200, and included the two drafts in suit. And on or before July twentieth, the defendant paid Badollet & Co. the twenty-five per cent, at which their debt was compromised. It is now claimed that at the timé of such compromise and of such payment, Badollet & Oo. did not own the drafts, but that they had transferred them to the Comptoir d’Eseompte de Geneve,” which was the owner. Thus the plaintiff must claim that Badollet & Co. practiced a fraud on the defendant by assuming to compromise debts which did not belong to them.

But we do not deem it necessary to discuss the merits of this case. One difficulty meets us at the outset. The plaintiffs allege that they are the lawful holders and owners of the drafts, and that the amount thereof is due from defendant to them. The defendant denies this and alleges that the drafts were only delivered to the plaintiffs for presentation, and that they are not the owners or holders.

The plaintiffs by their own letter say that they are the agents of the Comptoir d’Escompte for collecting the drafts. The referee finds, as a matter of fact, that the indorsements of the drafts and their delivery to plaintiffs were for the special purpose of collection. But on this the referee held that the plaintiffs became holders and owners of the drafts, and as trustees of an express trust, were entitled to maintain the action.

There is no doubt that proof of the indorsement to the plaintiffs was prima faoie evidence that they were owners. But that was contradicted by the other proof on which the referee found, as the fact plainly was, that such indorsement and delivery were for the special purposes of collection, and by the plaintiffs’ own statement that they were agents for the Comptoir d’Escompte. The fact also that the plaintiffs, on being informed by the defendant of the compromise with Badollet & Co., made no objection and asserted no rights, as owners, to the drafts, is further evidence, if any were needed, that' they were in possession of the drafts only as agents, if not for Badollet & Co., at least for the Comptoir d’Escompte.

"We have then the question whether one who is only an agent for collection, and has possession of commercial paper only in that capacity, can sue thereon in his own name. It seems hardly necessary to quote section 449 of the Code, identical in part with section Ill of tbe old Code, that every action must be prosecuted in tbe name of tbe real party in interest. Tliis has now been tbe law for many years. Before tbe passage of tbe old Code tbe rule was different. And often it was necessary that an action should be prosecuted by one who was not tbe real party in interest, as for instance, in the case of assignments of contracts other than commercial paper. Hence, decisions prior to tbe adoption of the Code are often inapplicable. And even in earlier decisions under tbe Code, tbe new doctrine was hardly accepted in its full force. But recent decisions are conclusive against tbe. plaintiffs. Bell v. Tilden (16 Hun, 346) is almost exactly like the present case. Hays v. Hathorn (74 N. Y., 486) is to tbe same effect. The case of Wetmore v. Hegeman (88 id., 69), cited by plaintiffs, was one where tbe assignment of tbe cause of action to tbe plaintiff was in trust for certain purposes so as to give him an interest therein. And it does not affect a case bke this where there was no assignment to tbe plaintiffs and no interest given to them in tbe subject matter; but where they were mere agents of other persons with no interest themselves.

. Nor were tbe plaintiffs trustees of an express trust. Tbe plaintiffs cite (Considerant v. Brisbane (22 N. Y., 389), decided by a bare majority. But in that ease tbe contract was, by its terms, payable to tbe plaintiff, described therein as agent. So again, tbe plaintiffs cite Devol v. Barnes (7 Hun, 342). There, too, tbe plaintiff undertook to collect certain claims as bis own and acquired an interest therein. But in tbe present case we have tbe case of plaintiffs who are mere agents for collection. If they are agents,'then their principals are tbe owners.

The judgment should be reversed and a new trial granted, costs to abide tbe event, referee discharged.

HoaromaN and BooKes, JJ., concurred.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author: Learned, P. J.:

text:
    JOHN McNEARY, Respondent, v. HERBERT D. CHASE, Appellant.

      Justice of the ‘peace — jurisdiction of, over an action commenced by the issue of a summons and am order of arrest, not affected by the order being vacated — Code of Oivü Procedure, secs. 3877, 3901, 3903.
    Where an action for a wrongful injury to personal property is commenced in a Justice’s Court by the service of a summons returnable forthwith, accompanied by an order of arrest, the jurisdiction of the justice does not depend upon the sufficiency of the affidavit upon which the order of arrest was made, but upon the service of the summons, and it still remains though the order be set aside as improperly granted.
    Appeal from a judgment of the Saratoga County Court, affirming a judgment of a Justice’s Court.
    The action was brought to recover damages for wrongfully and maliciously over-driving and beating a horse and breaking and injuring a carriage, which plaintiff claimed resulted in damage to him in the amount of $125. Judgment was rendered against defendant for $102 damages and seven dollars costs.
    The action was commenced by the service of a summons returnable forthwith, accompanied by an order of arrest, by virtue of which the defendant was arrested and brought before the justice the same day. The defendant, on being brought before the justice, objected to the regularity of the proceedings and the jurisdiction of the justice, on the ground that the affidavit upon which the order of arrest was granted was wholly insufficient, and on the further ground that the undertaking was insufficient. These objections were overruled by the justice, and the cause was tried and judgment rendered as above stated.

      Charles S. Lester, for the appellant.

      L. Varney, for the respondent.
   Learned, P. J.:

The Code provides in section 2901 that a justice of the peace may set aside the order of arrest. This is a new power and one which, in this respect, makes a court of a justice of the peace simi- , lar to courts of general jurisdiction. The power to set aside the order of arfest implies that jurisdiction of the action remains' after the order is set aside; and that jurisdiction does not depend on the order or its being properly issued. This is made certain by the following section (2902), which’ expressly declares that the discharge of the defendant from arrest before judgment, as prescribed in the last section, does not affect the jurisdiction of the justice over the action, which must proceed as if it had been commenced in the ordinary manner. Here again the justices court is made similar to a court of general jurisdiction, in .which' an order of arrest may be set aside without affecting the jurisdiction. It is probably with this view that the new Code provides for the service of a summons with the order of arrest. (Sec. 2877.) Thus the order of arrest is made only ancillary to the process by which the action is | commenced. Hence the order of arrest may be set aside, while the jurisdiction acquired by the' service of the summons remains.

From these considerations it would seem that, whether or not the affidavit and undertaking were Sufficient to authorize the order of arrest, yet the justice had acquired jurisdiction by the service of the sumipons. The defendant however urges that section 2902 only provides that the discharge of the defendant from arrest does not affect the jurisdiction; but does not provide that the refusal to discharge the • defendant shall have the same effect. Hence the defendant argues that, as the justice refused to discharge him from arrest, jurisdiction was lost and 'the action could not proceed. But this is plainly illogical. There is no reason why the justice should lose jurisdiction by refusing to discharge the defendant, when he would not lose it by discharging him. ■ The plain meaning of all these sections is that the justice’s jurisdiction does not depend on the validity of the order of arrest, but only on the service of the summons.

This- new provision is excellent. It obviates the necessity of . reversing a just judgment, merely for some little imperfection in the affidavit or undertaking, upon' which an order of arrest was obtained.

Nothing has been said in the argument before us as to reversing the refusal to discharge the defendant from arrest, and leaving at the same time the judgment in force. We have therefore not examined that question. And it would seem to be unimportant.

Without meaning to indicate therefore that the affidavit was or was not insufficient, or the irregularity in the undertaking was or was not material, we think the justice had jurisdiction, for the reason above stated, and that the judgment should be affirmed with costs.

Boabdkan and Booees, JJ., concurred.

Judgment affirmed, with costs.


author: JBoaedmaN, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THOMAS FITZPATRICK, Respondent.

      Grand jurors — objections to tJie constitutionality of the law under which they were drawn — when such objections camnot be raised by a person held to a/wait the action of such grand jury — quashing of the indictment— challenge to the panel or a/rrcty— discharge of the panel by the justice-— Code of Criminal Procedure, sea. 238.
    The defendant had "been held to await the action of the grand jury to be convened at the May term of the Albany Oyer and Terminer. Before the grand jurors were sworn the defendant appeared by counsel and filed a paper objecting to the grand jurors, upon the grounds that they had been selected under an unconstitutional law and had not been drawn from the grand jury box of the county, but from the petit jury box, and prayed the court to discharge them. By consent the motion stood over without prejudice to the defendant’s rights, or to the right and duty of the court-, the objection to any indictment which might be found to be considered and determined with the same force and effect as if decided prior to the organization of the grand jury. An indictment was found against the defendant. Somq three months thereafter an order was made in the said Oyer and Terminer directing that as to this defendant the body impanneled as a grand jury be set aside and discharged as of the date of the first presentation of the objections; that the said indictment against him be not received and stand as quashed; that such order take effect as of May seventh; that nothing therein was to affect the action pf the said grand jurors as to persons not having made such objections.

      Held, that the order was obviously inconsistent, as a grand jury could not be discharged as to some of the persons indicted arid remain as to the others, nor could a grand jury be discharged retroactively as was attempted to be done by this order.
    That, even assuming the order to have been made on the seventh day of May, there was the further difficulty that it quashed or set aside an indictment which had not then been found.
    The objections raised in this case were precisely the same as those raised in the Petrea case, in which the Court of Appeals held that where an indictment had been found, by a grand jury drawn under tbe same law and in tbe same manner as tbe one whose action was now questioned, it should not be quashed upon defendant’s motion.

      Held, that tbe fact that in this case tbe objections were raised and tbe motion to quash was made before tbe indictment was found did not furnish a reason for sustaining the order; that an indictment cannot be quashed before it is foundThat the paper filed was in effect a challenge to the panel or array, and was forbidden by section 238 of the Code of Criminal Procedure.
    That the discharge of the panel could not be sustained under the provisions contained ^in the said section, which authorizes the court “ in its discretion ” to discharge the panel for the reason, among others, that the required number of ballots was not drawn from the grand jury box of the county, because;
    1st. If it was a wise exercise of his discretion to discharge the panel as to the defendant, the same discretion would have required him to discharge it as to all the persons indicted by it.
    2d. That as the Court of Appeals had decided in the Petreá case that indictments found by such a grand jury were valid, it was an improper exercise of the discretion vested in the judge to set aside a panel.
    The subject of the appealability of the order was not considered.
    Appeal from an order of tbe Court of Oyer and Terminer of Albany county, setting aside and. discharging a grand jury and*quashing an indictment.
    At the May term, 1883, of the Albany Oyer and Terminer, the defendant, who had theretofore been held to await the action of the grand jury, appeared by counsel and filed objections to the persons about to be sworn in as grand jurors, alleging that they had been selected under an unconstitutional law (chap. 532 of 1881), and had not been drawn from the grand jury box of the county, but from the petit jury box, and asked that they be not sworn in but discharged.
    The People, by their district attorney, objected to the entertaining of such motion, and replied that they had been drawn by the proper officer from the only box in existence from which to draw grand jurors; that they had been duly summoned as grand jurors, and that they were good and lawful men drawn from the body of the county. By consent -the argument stood over until the coming in of the grand jury.
    The grand jury was sworn in and thereafter made their presentments, one being against the defendant, and thereupon the deféndant moved to have-said indictment set aside upon the same grounds upon which he had objected to the organization of the grand jury. Thereafter tbe court decided that as to the defendant the grand jury should, be discharged and the indictment set aside; making also the same order as to several other eases, where similar. objections had been made at the May Oyer and Terminer, in 1882. From that order the People appealed.

      D. Cady Herrick, district attorney, for the appellant.

      Heilly & Hamilton, for the respondent.
   JBoaedmaN, J.:

The defendant had been held to await the action of the grand jury to convene at May Term, 1883, of the Albany Oyer and Terminer. Before the grand jurors were sw'orn in, the defendant by counsel appeared and filed a paper containing certain objections to the grand jury and prayed the court to discharge them. The district attorney opposed this application. It was thereupon consented by both parties that the motion should stand over without prejudice to defendant’s rights or to the right and duty of the court; that if an indictment should be found, the objections should be considered and determined with the same force and effect as if decided prior to the organization of the grand jury.

The grand jury, then organized, found an indictment against the defendant. About three months thereafter an order was made in said Oyer and Terminer that; as to said defendant, the body impanneled as a grand jury be set aside and discharged as of the date of the first presentation of the objections; that the said indictment against the defendant be not received and stand as quashed; that such order was to take effect as of May seventh; that nothing therein was to affect the action of said grand jurors as to persons not having made such objections.

From this order the people appeal and counsel on each side desire that the case may be considered and disposed of on the main question, rather than upon any technical ground which does not dispose of the merits.

In the first place there is an obvious inconsistency in the order. A grand jury cannot be discharged as to some of the persons indicted and remain as to the others. If discharged as to some, it it must be discharged as to all. Otherwise there would or might be two grand juries at the sáme time, because the section which pro vides for discharging a grand jury requires the summoning of-another. (Code of Criminal Pro., § 238.)

Again, it is obvious that when a body of men have been sworn and impanneled as a grand jury and as such have found indictments, they may be discharged as having finished their labors. But they cannot be discharged retroactively, as is attempted in this order;, so that the order shall take effect as of a date prior to their action as a grand jury. Undoubtedly the indictments found by them .may . for good cause be quashed. But that is a very different matter. No order of the court, taken subsequent to the finding of the indictment, can alter the fact that a body of men, summoned as a grand jury, were not discharged but acted as such and found the indictment.

But counsel on both sides express the wish that this appeal should be considered as if the order had, in fact, been made on the seventh of May. And, therefore, we pass over the inconsistencies above-mentioned. Still they seem to have occurred to the learned justice, because the order not only discharges the grand jury mwne pro time, which could not have been done, but it also quashes or sets aside the indictment. And thus we have the further difficulty that an ■order which is to take effect May seventh quashes or sets aside an ' indictment which had not then been found. That is, it quashes it in advance. The learned justice - well expresses in his .opinion the doubt as to what, the order should be.

Let us next inquire whether the order was proper so far as it -quashed the indictment. The objections raised are precisely those urged in the Petrea ease. (1 N. Y. Grim. R.., 198, 233; 28 Hun, 440.) It was in that case held by .the Court of Appeals, affirming the decision of this court and of the Court of Sessions, that whei-e' ■an indictment had been found by a grand jury, drawn under this very law and in the very manner now in question, it should not be quashed on the defendant’s motion. It cannot be necessary or proper to argue that question again. "Whatever else may have been -said in thp opinion of the Court of Appeals, that principle was absolutely decided and such decision should govern. The Oyer and 'Terminer then should not, in this case, have quashed the indiet-meni "We think the learned justice must have seen that his decision in this respect was contrary to the law of the Petrea case, for a large part of his opinion is made up of citations of authorities principally from other States tending to show that the decision of the Court of Appeals is wrong, and that an indictment found by a grand jury selected under an unconstitutional law should be quashed on the defendant’s motion.

It is suggested, however, that although an indictment after it is found ought not to be quashed upon the grounds urged in the Petrea case, yet if these grounds were presented to the court before the indictment was found, as a reason for quashing it after it should he found, then the decision in the Petrea case would not apply and the indictment should he quashed. But this cannot be. That decision held that no constitutional right of the defendant was invaded hy holding him to answer under the indictment, although the same facts appear there as appear here. An indictment cannot be quashed before it is found. After it is found the facts now alleged present no reason for quashing it, as was decided in the Petrea case. Hence the same facts can never be a ground for*quashing an indictment, because until an indictment shall be found a motion to quash cannot be made.

But again, this order discharges the grand jury, or the body so called, and by agreement of counsel we are 'to consider the order as if it had been made May seventh.

The first objection to this part of the order, which is obvious, is that just stated, viz., that on a motion by a person held to trial the court assumed to discharge the grand jury as to him and allow it to stand as to others. How could such an order be properly made at the opening of the court or at any other time? "Would the court, on the seventh of May, havé summoned another especially for this defendant? Would\the court have charged the one grand jury to inquire as to all crimes, except those of Thomas Fitzpatrick, and the other to inquire as to his only ? It is plain that, even when we treat this order as one made at the opening of the court,' it is inconsistent with itself.

Again there are more serious objections. This paper filed' by the defendant, call it by any name he may please, is really in effect a challenge to the array. This is a well known term which calls for no definition. Similar objections were defined to be a challenge in the Petrea case. (28 Hun, 440; 1 N. Y. Or. R., 198, 233 )

Now the Code of Criminal Procedure (§ 238) forbids any challenge. to the panel or to the array of a grand jury. The counsel for the defendant urges that this section does not prevent objections made before the grand jury is impanneled. But a challenge is an objection made to the swearing in and impanneling of the grand jury, not an objection made after they are sworn in and impanneled. Such has been the ordinary meaning of the word, and in that sense the legislature must have used it when it forbade challenges to the pannel or array. It would be trifling to enact a section which meant that challenges to the panel or array could not be made after a grand jury was sworn in and impanneled, but might be made before.

The learned justice, however, takes another view and thinks that the challenges to the panel or array, which are forbidden by this section, are challenges to a legal panel or array of grand jurors and not challenges to an illegal panel. One would suppose there was not much necessity to prohibit* challenges to the panel or array of a legal grand jury. The section means just what it says, that is, that challenges or objections to the panel or array of the grand jury can no longer be taken. It was. evidently thought that, as the grand jury was only an accusing body, it was unnecessary to give an accused person the right to make objections to the details of its selection.

If the Code had not forbidden challénges of this kind, still, under the decision of the Petrea case, we do not see how this could be allowed. If the law in question were unconstitutional this could not be asserted by a party whose rights it did not affect. (Cooley Const. Lim., 163; People v. B. F. and C. I. R. R. Co. per Finch, MS.; Town of Pierrepoint v. Loveless, 72 N. Y., 211.) And the decision in the. Petrea case was that the defendant’s constitutional rights were not invaded by holding him to answer the indictment and, therefore, not invaded by the mode of selecting the grand jury. (Friery v. The People, 2 Keyes, 425.)

The learned judge, however, places this order on another ground. Section 238, above cited, after forbidding challenges, provides that the court may in its discretion, discharge the grand jury and order a new one to be summoned for any of several causes, among them, “ That the requisite number of ballots was not drawn from the grand jury box of the county.” "We can hardly understand how the order appealed from could have been made in the exercise of that discretion, because the learned justice says in his opinion that “ whenever it plainly appears that every safeguard of law in the selection of grand jurors has been disregarded,” etc. (that is, by the enactment of the very excellent chapter 532, Laws of 1881) then it was a wise exercise of discretion to set aside the supposed panel and to order a new panel to be summoned. Now if this were so, the same wise discretion would seem to require that other indicted persons should be protected as well as this defendant. And it would seem an unwise exercise of discretion to grant as a special favor to the defendant, the safeguard to which others were equally entitled. Yet the order, in the discretion of the court, withholds from those who have not made the objections, “the guaranties which the constitution gives to every citizen for his protection.”

It may be remarked, in passing, that while in the opinion of the Court of Appeals in the Petrea case the act in question was spoken of as unconstitutional, yet it was distinctly held that the question of constitutionality could not be raised by the defendant in that ease. As it could not be raised by him it could not in that case be decided by the court. As is said by Judge Finch, in People v. Brooklyn, Flushing and Coney Island Railroad (MS. opinion), “it is our duty to decide a constitutional question only when it is directly and necessarily involved in the issue to be determined.” Whatever was said as to the unconstitutionality of the law was obiter, that is, it was not involved in the decision and only served' to encourage further efforts to thwart the criminal law.

"Was then the discretion proper which was thus exercised by the Court of Oyer and Terminer in favor of Fitzpatrick, and refused as to other accused persons ? The Court of Appeals had held that such a grand jury was competent to find valid indictments. Why then should the Court of Oyer and Terminer set aside this competent jury ? The requisite number of ballots had been drawn. These ballots had been drawn from the only box and list of jurors made up in the county from which to draw grand jurors. This box and this list were, in fact, the grand jury box and list. It was plainly immaterial what the box was called. It held, in fact, the names selected under color of law as 'grand jurors. And there was no other box or list from which grand jurors could be drawn.' This box and this list were to such extent the box and list froih which to draw grand jurors; and it had been held by the Court of Appeals that a grapd jury drawn therefrom was a yalid grand jury. For what possible reason Qr under what discretion then, should a grand jury so drawn be set aside ? Not the least objection was made to the competency or qualifications of any or all of them. If the learned justice had refused- to set the jury aside, the indictments found by them would have been valid and the administration of the criminal law would not have been obstructed by an objection without any real merit. We think it was not a wise exercise of discretion to set aside a body of unexceptionable men whose competency to find indictments had been established by the Court of Appeals.

It sepms to us the error which underlies nearly all of-the reasoning of the learned justice in his opinion is, that he assumes that any man may set up the unconstitutionalty of a law, although it does not affect his rights or subject him to any -wrong. This is carried a step further in assuming that it is a wise discretion to set aside a body of competent officers against the mode of selection of whom, even if it be illegal, no one has the right to set up any objection.

No objection is made by the defendant to the right of the people to appeal from the order, and so that subject is not considered.

The order appealed from should be reversed.

Learned, P. J., and Bookes, J., concurred.

Order reversed.


author: Bockes, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN P. MASTERSON, Respondent, v. ALBERT GALLUP, as Treasurer of Albany County, Appellant.

      Boards of svpwvisors — power of, to provide for the appointment of clerics, eta., in county offices —1875, chap. 482, sea. 1, suh. 2, only applies to such county officers as have public offices.

    Chapter 482 of 1875 conferring further powers of local legislation and administration upon boards of supervisors, authorized them “ to fix, subject to the limitations of section 15, article 6 of the Constitution, the salaries and per diem allowances of county officers whose compensation may be a county charge, and which shall not be changed during the term of office of such officers, respectively, and to prescribe the mode of appointment and fix the number, grade and pay of the deputies, clerks and subordinate employes in such offices.”
    Claiming to act under the authority of this law the board of supervisors of Albany county passed a resolution providing that thereafter there should be one clerk only to the coroners of Albany county. It prescribed the mode of his appointment and the duration of his office, and then directed that “ the office of the coroners shall be located in the rooms of the board of supervisors and the duty of the clerk shall be to attend at such office during each week day and to aid the coroners in the discharge of their duties, and to receive, preserve and file each inquisition and to keep a record of the same.” Prior to that time the coroners of Albany county had not had an office nor a clerk.

      Held,, that the act did not authorize the supervisors to provide for the appointment of deputies, clerks and subordinate employes to every county officer.
    That the act only authorized the board of supervisors to prescribe the mode of appointment and fix the number, grade and pay of persons, such as deputies, clerks and messengers, who might be needed by such of the county officers as are required to keep public offices, such as the county clerk and the county treasurer.
    That the assignment of a room for the use of a county official did not make it a “ county office” within the meaning of this section.
    That the resolution in fact created a new office, charged with some of the duties of the coroner and with some of the duties of the county clerk.
    That it was unauthorized and void.
    Appeal from an order, made at a Special Term awarding a peremptory writ of mcmdamus, commanding the county treasurer of Albany county to pay to the relator his salary as clerk of the coroners of Albany county for the month of January, 1883.
    The relator was appointed under a resolution of the board of supervisors, purporting to have been passed by them under the authority conferred upon them by chapter 482 of 1875. The resolution was as follows:
    A resolution prescribing the mode of appointment and the number of clerics to the coroners of Albany county, and fixing the pay thereof:

      Resolved, By the Board of Supervisors of the county of Albany, that hereafter there should be one cleric only to the coroners of the county of Albany, who shall receive a salary of one hundred dollars monthly, payable on the first day of each month by the county treasurer. Such cleric shall be appointed by the coroners of said county, in the month of December in each year, by a written appointment, signed by a majority of such coroners, and acknowledged by each coroner signing the saíne before some officer authorized to take the proof and acknowledgments of deeds within said county, and the same shall be filed in the clerk’s office of said county. Such clerk shall hold his office for one year from such appointment, and until his successor is duly appointed. The office of the coroners shall be located in the rooms of the board of supervisors; and the duty of the clerk shall be to attend at such office during each week day and to aid the coroners in the discharge of their duties, and to receive, preserve and file each inquisition and to keep a record of the same.
    The foregoing resolution is passed by authority of chapter 482 of the Laws of 1875, subdivision second of section first, and was passed by a majority vote of all members elected to the board.

      Ma/reus T. Hun, for the appellant.

      Rufus W. Peekham, for the respondent.
   Bockes, J.:

The most serious question in this case is whether the resolution of the board of supervisors is within the authority of chapter 482, Laws of 1875. The part of that statute important in this case is as follows : To fix subject to the limitations of section 15, article 6 of the constitution, the salaries and jper diem allowance of county officers whose compensation may be a county charge, and which shall not be changed during the term of office of such officers respectively, and to prescribe the mode of appointment and fix the number, grade and pay of the deputies, clerks and subordinate employes in such offices. ” Under authority given by this law the supervisors passed a resolution appointing a clerk to the coroners of the county of Albany, and fixing his salary.

It is insisted by the defendant that this resolution was not so adopted as to be valid; and again, that it was not authorized by the statute. Ve pass the first point to examine the second.

The defendant urges that the authority given by the statute is only to regulate the number of clerks, etc., when some have been authorized by law. And the resolution of the supervisors seems to have been intended to make it appear that such was their action. It says “ that hereafter there shall be one clerk only to the coroners,” as if the resolution would make a reduction of a larger number, and as if it were passed in the interest of economy, while in fact prior to that resolution there had been no such clerk at all. We have, however, no occasion to pass on this construction given to the statute by the defendant.

Again, the defendant insists that the statute does not authorize the appointment of a clerk or clerks for every comity office, but that it authorizes only the regulation of clerks, etc., in the county offices which are by law required to be kept.

The statute is rather loosely drawn, as is customary. It uses the words “such offices” without having previously spoken of any offices. The word “ offices ” cannot be a mistake for officers, because the expression is “ in such offices. ” And the preceding words, “ the deputies, clerks and subordinate employes, ” are such as would not be applicable to every county officer. For instance, the county judge is a county officer, and, as the relator insists, the supervisors could under this statute authorize the appointment of a deputy clerk and subordinate employes for him. Yet it is plain that the words deputies, clerks and subordinate employes ” are quite inapplicable to the county judge.

On the other hand, those words are applicable, and peculiarly applicable, to the offices which certain county officers are required to keep. For instance, the county clerk is to keep an office which is to be open at certain hours. So the sheriff is to keep an office; and “ in such offices ” it is proper and necessary that there should be “ deputies, clerks and subordinate employes. ” And the supervisors seem to have appreciated this view, for their resolution not only appoints, the clerk, but it goes on to state where the coroners shall have their office and where the clerk shall attend. Thus the resolution indicates a suspicion that the words in such offices ” had a local meaning. But as there is no law requiring the coroners to keep an office this provision of the resolution does not help the relator. The relator construes the statute as if it read “ fix the number, grade and pay of the deputies, clerks and subordinate employes of such officers. ” This would be very different from the statute as it is. This view is strengthened by. a consideration of the duties attempted to be imposed on this clerk. He is to attend at the office each week day to aid the coroners in the discharge of their duties and to receive, preserve and file each inquisition, and keep a record of the same. But section 778, Code of Criminal Procedure, requires the coroner to file these papers in certain clerks’ offices; in Albany county, in the county clerk’s office, and therefore this clerk cannot file them in his own office. If the resolution means that he is to file them in the county clerk’s office, that is by statute one of the duties of the coroners. The duties of the coroners are not and cannot be discharged at the office provided for, so that it is difficult to see how this clerk attending there can aid them in those duties.

Indeed, by the language of this resolution, this so-called clerk of the coroners seems to be made a public officer with distinct duties; not subordinate to the coroners, not subject to their control. So that, in fact, there was an attempt on the part of the supervisors to create a new county officer. And this new county officer, so far as he -is charged with any duties, except those of sitting in -the supervisors’ room, is really to perform' the duties which the statute imposes on the coroners or the county clerk.

In our judgment, therefore, this subdivision of the statute above quoted authorized two things: First. To fix the compensation and* per diem allowances of county officers; and second. To prescribe the mode of appointment and fix the number, grade and pay of the persons who are needed in county offices, viz., the deputies, the clerks, the messengers and the like. Many such persons may be needed in county-offices, as to which the supervisors may judge.

"We do not mean to say, as was suggested* on the argument, that the assignment as a public room for the use of á county official mates that room a “ county office ” under this section. But the distinction is familiar that there are certain county offices, for instance those of the county clerk and county treasurer. These contain property of the county to be preserved and cared for by each successive officer, and by the words m such offices, that is,- in coirnty offices, we think that the legislature referred to such offices as above described. And we think that they did not authorize the supervisors to appoint deputies, clerks and subordinate employes to every county officer.

We are also of the opinion that the resolution in fact creates a new officer, charged with some of the duties of the coroner and with some of the duties of the county clerk, and is for that reason unauthorized.

For these reasons we think that the order should be reversed and the motion denied, without costs to either party.

Learned, P. J., and Boardman, J., concurred.

Order reversed and motion for mandamus denied, without costa to either party.


text:
    THE PEOPLE OF THE STATE OF NEW YORK. Respondents, v. MICHAEL McTAMENEY, Appellant.

      Petit larceny — one indicted for grand la/i'ceny may befoknd guilty of petit larceny in the Court of Sessions— Code of Criminal Procedure, sec. 56 — the punishment for petit larceny is prescribed by sec. 15 of the Penal Code — 2 B. S., 690, section 1.
    Section 56 of the Code of Criminal Procedure conferring upon Courts of Special Sessions exclusive jurisdiction to hear and determine charges of petit larceny, charged as a first offense, does not take from a jury in the Courts of Oyer and Terminer and of Sessions power to find guilty of petit larceny one who has been indicted and tried before such court for grand larceny.
    One convicted of petit larceny committed since the passage of the Penal Code is to be punished by an imprisonment of not more than a year or a fine of $500, or both, as prescribed in section 15 thereof. The punishment prescribed by section 1 of 2 Revised Statutes, 690, is inconsistent with that prescribed by the Penal Code, and is repealed by section 726 thereof.
    Appeal from a judgment of the Court of Sessions of Ulster county, adjudging the defendant guilty of petit larceny and sentencing him to imprisonment at hard labor in the Albany penitentiary for the term of one year.
    The defendant was indicted and tried for grand larceny.

      Augustus H. Va/n Burén, for the appellant.

      A. T. Glea/rwater, district attorney, for the respondent.
   Learned, P. J.:

The Penal Code, section 528, defines larceny; sections 530 and 531 define grand larceny in the first and second degrees, and section 532 declares every other larceny to be petit larceny. The prisoner was indicted for grand larceny and was convicted of petit larceny. We think that this was proper, under sections 444 and 445, Code of Criminal Procedure. The offense of which he was' convicted, was of a degree inferior to that of which he was indicted. And we do not think that section 56 of that same Code is to be construed to take from a jury in the Courts of Oyer and Terminer and of the Sessions the power to find a verdict of petit larceny, when the prisoner has been indicted for grand larceny, and is on trial before them for that crime. If such construction were to be given to that section and if such a jury should be obliged to acquit, in case they were satisfied the stolen property was not of the value of more than twenty-five dollars, probably the prisoner could not thereafter be tried for such stealing,

The next question is as to the length of the sentence. The sections of the Penal Code above cited are intended to take the place of 2 Revised Statutes, m. p. 679, section (63), and 690, section 1 Section 535 declares that petit larceny is a misdemeanor; meaning petit larceny as in that Code defined. Section 719 declares that an offense specified in the Code, committed after, etc., must be punished according to the provisions of that Code. Section 15 declares the punishment for misdemeanors to be imprisonment for not more than a year, or a fine of $500, or both, unless some other punishment is specially prescribed by the Code or by some other statutory provision. No other punishment is specially prescribed by the Code for petit larceny, and none by .any other statute, unless 2 Revised Statutes, m. p. 690, section 1, etc., be in force. This Penal Code is a general statute, intended to define nearly all offenses and to prescribe the punishment. Section 726 repeals all inconsistent acts, so far as they impose any punishment for crime. The penalty imposed by the section of the Kevised Statutes above cited, is certainly inconsistent with that imposed by the Code. It cannot be understood that the exception made in section 15 of the Penal Code was to take away the effect of section 726. The argument of the prisoner is that whenever a punishment had been prescribed for a misdemeanor previously to the Penal Code, which was not in express and specific language repealed, that punishment remains in force. Now, if we tu^n to 2 Kevised Statutes, m. p. 697, section 40, we find a provision for the punishment of all misdemeanors, of which the punishment is not prescribed by some other statutes. Therefore, according to the argument of the prisoner, a punishment is specially prescribed for every misdemeanor. And, therefore, every misdemeanor is excepted from section 15 of the Penal Code. This is plainly unreasonable.

Again, the definitions of larceny in the Penal Code, are not identical (in language) with those in the Revised Statutes. Therefore, that part of section 1, 2 Kevised Statutes, m. p. 690, which defines petit larceny, is not in force. Why, then, the residue of the section ?

The prisoner’s position, if correct, would apply apparently to other cases of misdemeanors. Por instance, section 651 of the Penal Code declares certain interferences with gas-meters to be a misdemeanor, but prescribes no penalty. This section is substantially the act of 1854, chapter 109, sections 1 and 2, by which the crime was declared and a penalty prescribed of six months’ imprisonment and a fine of $250. Are we to understand then, that a viola.tion of section 651, Penal Code, is not ■ punishable under section 15 of that same Code, but that the penalty prescribed in the act of 1854 is in force ? Under such a construction the Penal Code would cease to be a complete system as it was intended to be. (Sec. 7.)

The judgment and conviction should be affirmed.

Bookes and Boardman, JJ., concurred.

Judgment and conviction affirmed.


author: Per Ov/riam.

text:
    JOHN O’REILLY and CECILIA O’REILLY, Respondents, v. THE CITY OF KINGSTON, Appellant.

      Compulsory reference — ca/n only be ordm'ed, where the tn'ial requires the examination of a long account — Code of Civil Procedure, sec. 1013.
    Appeal from an order made at a Special Term granting a compulsory reference.
    The action involved the validity of a special assessment made by the city of Kingston. '
    “ By the Court. — In the case of Baa'nes v. West (23 N. Y. Sup. Ct. [16 Hun], 68) the court held that an equity action could not be compulsorily referred unless the trial required the examination of a lobg account. The words in section 1013 (Code), £ as prescribed in this section,’ were held to refer to the clause £ where the trial will require the examination of a long account,’ etc.
    “We see no reason to change the view expressed in that decision. We are satisfied that, except in the instances above specified, the court cannot refuse to try an equity action, and* cannot compel the parties to try the same before a referee.”
    The order appealed from is reversed, with ten dollars costs and printing disbursements, and the motion to. refer is denied.

      Wm. Lounshury, for the appellant.

      M. Sehoonmaker, for the respondents.
   Opinion

Per Ov/riam.

Present — Learned, P. J., Bookes and Boardman, JJ.

Order reversed, with ten dollars costs and printing disbursements.


text:
    Avery v. Village of Saratoga Springs.
   Motion for leave to go to the Court of Appeals denied.


text:
    National Bank of Kinderhook v. John Wilcoxson.
   Motion to correct order denied, with ten dollars costs.


text:
    The People of the State of New York v. Edward Simons.
   Motion to set aside order denied.


text:
    Kearney v. Van Dyke.
   Motion to modify order denied, with ten dollars costs.


text:
    Mary R. E. Goodspeed, Appellant, v. Damon H. Mead and others, Respondents.

   Motion for reargument or to go to the Court of Appeals denied, with ten dollars costs.


text:
    Ann Kline, Respondent, v. Lucy McDonnell and others, Appellants.

   Order affirmed, with ten dollars costs and printing disbursements.


text:
    William H. Hollister, Jr., as General Assignee, etc., Plaintiff, v. Henry R. Russell, Defendant.

   Order vacating order of arrest affirmed; the part imposing conditions reversed, with ten dollars costs and printing disbursements to defendant.


author: Boardman, J.;

text:
    Aaron Richardson, Appellant, v. Thomas B. Morrow, Respondent.

   Order affirmed, with ten dollars costs and printing disbursements. — Mem. by

Boardman, J.;

Learned, P. J., not acting.


text:
    Peter J. Gardner and others, as Executors, Respondents, v. Emeline Miller, Appellant, Impleaded, etc.

   Order affirmed, with ten. dollars costs and printing disbursements.


author: Learned, P. J.

text:
    In the Matter of the New York, West Shore and Buffalo Railway Company, Appellant, v. Theophilia G. Townsend, Respondent.

   Order affirmed, with costs. Mem. by

Learned, P. J.


text:
    Same v. Same.
   Appeal from order denying motion to vacate stay. Order reversed and stay vacated.


text:
    Emory A. Chase and William J. Hughes, as Executors, etc., Appellants, v. William Belden, Respondent.

   Order reversed, with ten dollars costs and printing disbursements, without prejudice to renewal of motion on same or new papers.


text:
    Elias Smith, as Superintendent, etc., Plaintiff, v. Hiram W. Brundage and others, Defendants.

   Motion for leave to go to the Court of Appeals denied.


author: 'Learned, P. J.

text:
    In the Matter of Benjamin Case, Respondent, v. Andrew Campbell, Appellant.

   Order reversed, with costs. Mem. bj

'Learned, P. J.


text:
    Oliver Porter, Appellant, v. William A. Robinson and others, Respondents.

   Motion for leave to go to the Court of Appeals denied.


text:
    William Holmes, Respondent, v. Elias H. Dunham, Appellant.

   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    In the Matter of the Attorney-General v. The Atlantic Mutual Life Insurance Company.
   Appeal from order of Follett, J., argued November, 1882; order affirmed. Mem. by

Learned, P. J.


text:
    James P. Farrell, Appellant, v. Franklin Krum, Respondent.

   Judgment reversed, new trial granted, reference discharged, costs to abide event. Mem. by

Learned, P. J.


text:
    National Bank of Kinderhook, Respondent, v. John M. Conway, Appellant.

   Judgment and order affirmed, with costs.


text:
    Alonzo Van Order, Respondent, v. Henry A. Mott, Appellant.
   Judgment affirmed, with costs. Mem. by

Learned, P. J.


author: Boardman, J.

text:
    William Slocum, Appellant, v. Mary R. Stoddard, Respondent.
   Judgment of County Court affirmed, with costs. Mem. by

Boardman, J.


text:
    The People of the State of New York, Appellant, v. The Long Island Railroad Company and another, Respondents.

   Judgment affirmed, with costs, on opinion of Court of Appeals in People v. B., F. B. and C. Island R. R. Co.


text:
    The People of the State of New York, Respondent, v. Walter V. Price, Appellant.

   Appeal dismissed.


text:
    John L. Snyder, Appellant, v. Sarah E. Snyder, Respondent.
   Judgment affirmed, with costs.


text:
    Joseph M. Perqua, Appellant, v. John L. Fraker, Respondent.
   Judgment reversed, with costs.


text:
    Alonzo Welch, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    William O. Jarvis, as Executor, etc., and another, Respondents, v. Gideon B. Vincent and others, Appellants.

   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    Edward C. Walrath, Appellant, v. Abraham Wohlgemuth, Respondent.

   Judgment of County Court reversed and that of Justice affirmed, with costs. Mem. by

Learned, P. J.


author: Martin, J.

text:
    Seba Jane Gedney, Appellant, v. Daniel Rogers, Respondent.

   Judgment affirmed, with costs, on opinion of

Martin, J.


text:
    Frederick Salow, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment affirmed, with costs.


text:
    Edward Brousseau, Respondent, v. George S. Shultz, Appellant.

   Judgment affirmed, with costs, without prejudice to. defendant’s right to apply for leave to answer on terms. Mem. by

Boardman, J.


text:
    George Clarke v. Ira Davenport, Comptroller, etc.

   Injunction granted in the four cases, only, which have not been tried, on giving security. Order to be settled by

Learned, P. J.


text:
    In the Matter of the New York, West Shore and Buffalo Railway Company v. William Lounsbury and others.
   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Mem. by

Learned, P. J.


text:
    The People of the State of New York ex rel. Edward Newcomb, as Receiver, etc., Respondents, v. John A. McCall, Jr., as Superintendent, etc., Appellant.

   Order affirmed, with costs. Mem. by

Boardman, J.


text:
    In the Matter of the New York, West Shore and Buffalo Railway Company, to Acquire Lands of Johanna Parr and others.
   Order affirmed, with costs. Mem. by

Boardman, J.;

Learned, P. J., not sitting.


text:
    George R. Adams, Respondent, v. William Gokey, Appellant.

   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    Charles F. Bowen, Appellant, v. Albert S. Willoughby and others, Respondents.

   Judgment affirmed, with costs.