text:
    Susan S. Gregg, as Administratrix, etc., Respondent, v. Jessie Stannard and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    Addie E Boyden, Respondent, v. George Harvey, Appellant.
   Oder affirmed, with ten dollars costs an:t disbursements.


text:
    In the Matter of Sanderson Brothers’ Steel Company.
   So much of the order appealed from as authorizes the referee to determine the facts aud law reversed, with ten dollars costs aud disbursements, aud the order in other respects affira.ed. Reference to proceed upon eight days’ notice.


text:
    John H. Bullard and others, Respondents, v. Justus Chase and others, Appellants
   Order affirmed, with ten dollars costs aud disbursements. Reid (1,) The County Court of Jefferson county had power to strike out the matter embraced in the amended return; (2,) There is no statute or rule of practice which authorizes interrogatories to a justice of the peace, to ascertain his reasons for reaching a result in the decision of a cause submitted to him on the evidence taken upon the trial before him.


text:
    Alexander Smith, Appellant, v. Merritt King, Respondent
   Order affirmed, with ten dollars costs and disbursements.


text:
    Etta J. Brace, Respondent, v. Edward G. Brace, Appellant.
   Ordered, that defendant pay the sums awarded to the plaintiff by the judgment for divorce within thirty days, or in default thereof the appeal be aud is hereby dismissed, with costs and ten dollars costs of motion.


text:
    The Davis Sewing Machine Company, Respondent, v. William J. Best, Receiver, etc., Appellant.
   Judgment affirmed, with costs.


text:
    Roxanna C. Larkin, Respondent, v. Paul C. Maxon, as Administrator, etc , Appellant.
   Judgment modified by striking therefrom the award of disbursements, and as modified affirmed, with costs, on the opinion of Kennedy, J., delivered at Special Term.


text:
    The People of the State of New York ex rel. George Snyder, Appellant, v. Dwight N. Miller, Respondent.
   -Order affirmed, with costs against the relator.


text:
    John F. McCoy, Appellant, v. The Utica and Black River Railroad Company, Respondent.
   Judgment affirmed, with costs.


text:
    Edson J. Vickery, Respondent, v. Edmund Merry, Appellant.
   Judgment and order affirmed, with costs.


text:
    Alonzo H. Failing and others, Respondents, v. James G. Fargo, President, etc , Appellant.
   Judgment affirmed, with costs.


text:
    William R. Olney Appellant, v. George H. Blaisier, Respondent.
   Judgment and order reversed and a new trial ordered in the Oneida County Court, with costs to abide the event. Reid, the trial judge had no right to correct the verdict by determining which sum, $2 51 or $16.45 the plaintiff was entitled to recover; that could omy be determined by the jury. »


text:
    Alvah Risley, Respondent, v. Justus Newell, Appellant.
   Judgment affirmed, with costs.


text:
    Mary Watson, as Administratrix, etc., Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
   Judgment and order affirmed, with costs


text:
    Frederick Strange, Respondent, v. Robert L. Gibson, Appellant.
   Judgment and order affirmed, with costs.


text:
    Ebenezer Mudge and another, Respondents, v. Burdette Sailsbury and another, Appellants.
   .Judgment affirmed, with costs.


text:
    Ithaca Fire Department, Appellant, v Henry Beecher, Respondent.
   Order affirmed, with ten dollars costs and disbursements. (Bellowed the 21st Hun, 109.) Follett, J., not sitting.


text:
    Charles E. Crouse and others, Respondents, v. Charles W. Morgan, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Eureka Cast Steel Company, Appellant, v. Syracuse Chilled Plow Company, Respondent.
   Judgment affirmed, with costs.


text:
    James H. Blair Respondent, v. William Duffus, Appellant.
   Judgment and order of the Onondaga County Court affirmed, with costs.


text:
    Benjamin F Lewis, Respondent, v. Elizabeth Gates and others, Appellants.
   Judgment affirmed, with costs.


text:
    Rosa Anna Spohre, Respondent, v. Syracuse and Liverpool Plank-road Company, Appellant.
   Judgment and order of the Onondaga Couuty Court affirmed.


text:
    Jackson Perry, Respondent, v. James H. Brister, Appellant.
   Judgment affirmed, with costs.


text:
    Milton De Lano, Respondent, v. Simon S. Harp and others, Appellants.
   Declined to hear, case imperfect, and ordered over ompayment of ten dollars costs.


text:
    Angelina Hollenbeck, Respondent, v. Adam C. Morey, Appellant.
   Judgment affirmed, with costs.


author: Hardin, P. J.

text:
    Charlotte O. Walrod, Administratrix, etc., Respondent, v. James G. Reynolds, Appellant.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    The People of the State of New York, Respondent, v. William D. Kinney. Appellant.
   Judgment of the Onondaga Court of Sessions reversed, and a new trial ordered in the Court of Sessions of Onondaga county.


text:
    Melissa L. Cloyes. Respondent, v. Norman S. Cloyes, Appellant.
   Judgment in action for divorce affirmed, with costs.


text:
    Wealthy M. Dexter, Appellant, v. Daniel C. Case, Respondent.
   Judgment of the County Court of Oswego county affirmed, with costs. Per Curiam opinion filed with the clerk of Onondaga county.


text:
    Maria A. Koehler, Respondent, v. Ignatius P. Fiesinger, Appellant.
   Judgment and order reversed, and a new trial ordered, with costs to abide the event.


text:
    Elias Heyman v. The Merchants’ Bank.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Anna W. Dwight and others, Executors, etc., Respondents, v. The Germania Life Insurance Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by Merwin, J.


text:
    Niagara County National Bank and others v. The Bank of Monroe and others.
   Ordered, that the decision of the court disposing of the appeal be corrected so as to give the respondents appearing by separate attorneys separate bills of costs


text:
    William H. Hill, Respondent, v. The Peekskill Savings Bank, Appellant.
   Motion for stay of proceedings pending the appeal in the Court of Appeals granted. •


text:
    John M. Steel, as Receiver, v. John Sweeny and others.
   Appeal dismissed.


text:
    Regina Zorn v. Joseph Zorn.
   Motion to dismiss appeal denied, no costs.


text:
    A. Hawley, Appellant, v. Robert H. Smith, Respondent.
   Appeal dismissed, with costs,, but without costs of this motion.


text:
    Nellie Benedict, Respondent, v. Roswell W. Driggs, Appellant.
   Motion for leave to appeal to tne.Court of Appeals denied.


text:
    Fitzgerald v. Bond.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Charles E. Bard, Respondent, v. Daniel F. Cridler. Appellant.
   Ordered, that the order dismissnig the appeal in this case be corrected so as to allow ten dollars costs and disbursements, without, costs of this motion to either pai tv.


text:
    John B. Smith, Respondent, v. Abram T. Kerr, Appellant.
   Motion for leave to appeal to the Court of Appeals granted.

Haight, J., not sitting.


text:
    The Bank of Batavia v. The New York, Lake Erie and Western Railroad Company.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    George Waterman and others v. Gideon Webster and others.
   Motion for reargument denied, without costs.


text:
    Seth G. Rowley and others, Appellants, v. The Methodist Episcopal Society of Medina, Respondent.
   Motion for reargument denied, without costs.


text:
    David R. King v. The United States Life Insurance Company.
   Motion for leave to appeal to the Court of Appeals denied, without costs.


text:
    William A. Lewis, Plaintiff, v. Charles Barton aud others, Defendants.
   Ordered, that the decision of this court be corrected so as to reverse the judgment as to defendant, Charles Barton, and as to him a new trial is granted, with costs, and as to the other defendants judgment affirmed, with costs. Motion by plaintiff for reargument denied, without costs of this motion


text:
    In the Matter of Petition of Lewis H. Clark, a tax-payer, etc.
   Motion for leave to appeal to the Court of Appeab granted.


author: Barker, J.

text:
    John A. Campbell v. Edmund Kelley.
   Motiou for leave to appeal to the Court of Appeals, or for rearguraent denied.

Mem. by

Barker, J.


text:
    The Throop Grain Cleaner Company v. H. Cordelia Smith.
   Ordered, that motion for reargument be granted.


text:
    The Commercial Bank of Keokuk v. Christian Pfeiffer.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    The People of the State of New York v. Frederick Jenner.
   Appeal dismissed.


author: Bradlejr, J.

text:
    Angeline C. Johnson and others, Administrators, etc., Respondents, v. Maria J. Meyers, as Executrix, etc., Appellant.
   Judgment modified by deducting therefrom as of the date of the report May 18, 1883, $10,446.31, and as so modified affirmed, without costs of this appeal to either party.

Opinion by

Bradlejr, J.


author: Bradley, J.

text:
    Angeline C. Johnson and others, Administrators, etc., Respondents, v. Maria J. Meyers, Appellant.
   Judgment modified by deducting therefrom as of the date of the report March 8, 1883, $3 394.33, and as so modified affirmed, without costs of this appeal to either party.

Mem. by

Bradley, J.


text:
    Same v. Same.
   Order granting additional allowance affirmed, without costs.


author: Haight, J.

text:
    Susan A. Smith, Respondent, v. Benjamin W. Stanton, Executor, etc., Appellant.
   Judgment affirmed, with costs.

Opinion by

Haight, J.


text:
    Esther Ann Stanton, Respondent, v. Benjamin W. Stanton, Executor, etc., Appellant.
   Judgment affirmed, with costs, upon the opinion of Haight, J., in Smith v. Stanton.


text:
    Henry French, Respondent, v. William H. St. John, Appellant.
   Judgment and order affirmed.

Opinion by

Bradley, J.


author: llaight, J.

text:
    Henry L. Wingate, Respondent, v. John H. Haskins, Appellant.
   Judgment affirmed.

Opinion-iby

llaight, J.


author: Bradley. J.

text:
    William Young and others, Respondents, v. Reuben Eastland, as Executor, etc., Appellant.
   Judgmcntaffirmed, with costs.

Opinion by

Bradley. J.


text:
    John Clough, Respondent, v. The Gilman Manufacturing Company, Appellant.
   Judgment affirmed.

Opinion by

Barker, J.


text:
    Daniel Gavin, Respondent, v. Ferdinand H. Duckwitz, Appellant.
   Judgment and order affirmed.

Opinion by

Haight, J.


author: Barker, J.;

text:
    Benjamin McElwain, Plaintiff, v. The Erie Railway Company, Defendant.
   Motion for new trial granted, with cos is to abide event.

Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    Jeannette Andrews, Respondent, v. Samuel D. Purdy, Appellant.
   Judgment and order reversed and new trial granted, with costs to abide the event.

Opinion by

Barker, J.;

Haight, J., not sitting.

Order denying new trial on the ground ot newly discovered evidence affirmed, without costs.


author: Haight, J.;

text:
    Christoff Schwinger v. Alonzo B. Raymond and others, Appellants.
   Judgment aud order affirmed.

Opinion by

Haight, J.;

Barker, J., not sitting.


author: Rumsey, J.;

text:
    James H. Swarthout, Respondent, v. Le Roy L. Chadwick, Appellant.
   Judgment affirmed.

Opinion by

Rumsey, J.;

Barker, J., not Bitting.


text:
    Collins C. Spencer, Respondent, v. Rowland Hall, Appellant.
   Judgment affirmed

Opinion by

Haight, J.;

Barker' J., not sitting.


text:
    The Trustees of the First Baptist Society of Forestville, Respondent, v. Horatio N. Farnum and others, Appellants.
   Judgmeut and order affirmed.

Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    John Kenally, Respondent, v. John Sellick, Appellant.
   Judgment of the County Court and that of the justice reversed, with costs.

Opinion by

Barker, J.;

Bradley, J., not voting.


text:
    Ambrose Fowler, Respondent, v. The Howe Machine Company, Appellant.
   Judgment reversed, and a new trial ordered before another referee, with costs to abide the event.

Opinion by

Barker, J.


text:
    Robert Simpson, Respondent, v. George B. Swikchard, Appellant.
   Judgment reversed on a question of fact, and new trial granted before another referee, with costs to abide the event, unless the plaintiff stipulates within twenty days after service of a copy of this order to deduct from the judgment $133.34 with interest thereon from April 30, 1879, and in that event the judgment so modified affirmed, without costs oí this appeal to either party.

Opinion by

Bradley, J.


author: Rumsey, J.

text:
    Thomas C. Parkhurst, Respondent, v. Lena Mitchell, Appellant.
   Judgment of the Comity Court affirmed, with costs.

Opinion by

Rumsey, J.


text:
    In the Matter of the Petition of William H. Dewey.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Barker, J.


text:
    Elijah Youngs, Sheriff, etc., Appellant, v. Clarence H. Williams, Executor, etc., Respondent.
   Judgment affirmed on the opinion of the referee. Barker, J., dissents ancl reads for reversal.


author: Brad* ley, J.

text:
    The People of the State of New York, Respondent, v. Erastus Newton, Appellant.
   Judgment aud conviction reversed and new trial ordered; proceedings remitted to the Court of Sessions of Erie county.

Opinion by

Brad* ley, J.


author: Lewis, J.

text:
    The Mercantile Trust Company, Appellant, v. The Rochester and Ontario Belt Railroad Company, Defendant, and Joseph C. Tone, Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Lewis, J.


text:
    Lewis E. Smith, Respondent, v. Elizabeth Askin, Appellant
   —Order affirmed, without costs.

Opinion by

Lewis, J.


text:
    William Manning, Appellant, v. Peter Ennis, Respondent.
   Judgment affirmed, with costs*

Opinion by

Bradley, J.


author: Bradley; J.;

text:
    The People of the State of New York, Respondent, v. Joseph Callahan, Appellant, Impleaded, etc.
   Judgment and conviction affirmed and proceedings remitted to the Court of Sessions of Chautauqua county.

Opinion by

Bradley; J.;

Barker, J„ not present.


text:
    Abram J. Vrooman, Respondent, v. Andrew B. Smith, Appellant.
   Judgment affirmed.

Opinio.i by

Bradley, J.


author: Barker. J.

text:
    Samuel L Jones, Respondent, v. Elizabeth W. Dusenberre, Executrix, etc., Appellant.
   Judgment and order reversed and-new trial granted, with costs to abide the event.

Opinion by

Barker. J.


text:
    Edward P. Stuart, as Trustee, Appellant, v. Thomas J. Patterson and others, Respondents.
   Reargument ordered.


text:
    Simon Marshall, Respondent, v. The Rochester Printing Company, Appellant.
   Judgment and order affirmed on the opinion of Kumsey, J.


text:
    The Mutual Life Insurance Company of New York, Appellant, v. Sarah E. Shipman, Respondent
   Judgment affirmed, with costs.

Opinion by

Haight, J.;

Angle, J., not sitting.


author: Angle, J.

text:
    John B. Howell, Appellant, v. Anna H. Manwaring, Executrix, etc., Respondent.
   Judgment reversed and new trial ordered, with cosjs to abide the event.

Opinion by

Angle, J.


author: Childs, J.

text:
    Arba Briggs, Appellant, v. John Langford and Austin Heath, Respondents.
   Judgment affirmed, with costs.

Opiniou by

Childs, J.


text:
    Matthew J. McCusker, Respondent, v. John Carlson, Appellant
   Judgment of the County Court reversed and that of the justice affirmed.

Opinion by

Haight, J.


text:
    J. Daniel Ackerman and others, Appellants, v. Charles C. Delude, Respondent.
   Order affirmed, with ten dollars co'sts and disbursements, on the opinion of Daniels, J., at Special Terra.


text: Ella A. Sabin, Appellant, v. The Grand Lodge of A. O. U. W. Respondent.


text:
    Andrew S. Phinney and others, Appellants, v. The Same.
   Order reversed, and all proceedings in the action of Phinney v. The Go'and Lodge are stayed until the determination of the action of Sabin v. The Grand Lodge and Phinney, or until the further order of the court, on condition that the grand lodge, within thirty days after notice of the entry of the order herein, pay into the treasury of Steuben county £3,000, and interest thereon from October 1, lh83, to the date of such deposit, to the credit of both actions, unless the money has been heretofore deposited under the order appealed from, in which case it may stand as a deposit under this order; ten dollars costs and disbursements to Ella A. Babin.

Opinion by

Angle, J.


text:
    Orrin Smith, Respondent, v. John Nelson and others, Appellants.
   Judgment ‘affirmed.

Opinion oy

Angle, J.


text:
    Salie Fankel, Respondent, v. Ferdinand Hays, Appellant.
   Order affirmed, with ten dollars costsjind disbursements on the opinion of Runisey, J , delivered at Special Term.


text:
    Yette Thalmeyer, Respondent, v. Ferdinand Hays, appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John E Saal and others, Appellants, v. David Abeles, Respondent.
   Judgment affirmed.

Opinion by

Childs, J.


text:
    Reuben R. Price, Respondent, v. William J. Fowler, Appellant.
   Judgment reversed on a question of fact, and a new trial ordered before another referee, costs to abide the event.

Opinion by

Bradley, J.


author: (. hilds, J.

text:
    Albert Dimock and others, Respondents, v. Samuel E. Haskins, Appellant.
   Judgment of the County Court and that of the justice reversed.

Opinion by

(. hilds, J.


author: Childs, J.;

text:
    Gotlieb F. Bauer, Plaintiff, v. The New York, Lake Erie and Western Railroad Company, Defendant.
   Motion for a new trial denied, and judgment ordered for the defendant on the nonsuit.

Opinion by

Childs, J.;

Bradley, J., not sitting.


text:
    Florence McPherson, Respondent, v. Patrick Rollins and others, Appellants.
   Judgment affirmed, with costs, on the opinion of the referee


text:
    The People of the State of New York v. The Mutual Benefit Associates, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Childs, J.


author: Bradley, J.;

text:
    The Discount and Deposit Bank of Clarion, Plaintiff, v. Samuel Oosterhoudt, Defendant.
   Motion for new trial denied and judgment on the verdict ordered.

Opinion by

Bradley, J.;

Haight, J., not sitting.


text:
    Henry C. Van Arsdale and others, Respondents, v. William Perry, Appellant.
   Judgment affirmed, with costs.

Opinion by

Childs, J.


text:
    James F Childs, Respondent, v. George C. Gordon, Appellant.
   Judgment reversed and new trial granted before another referee, with, costs to abide the event.


text:
    Timothy W. Gooding, Survivor, etc., Appellant, v. George Richards and others, Respondents.
   Judgment affirmed, with costs.

Opinion by Bradley, J.


text:
    Ira P. Bennett, as Receiver, etc., Appellant, v. William W. Bartlett, Respondent.
   Judgment affirmed.

Opinion by

Angle, J.


author: Bradley, J.

text:
    William Chappell, Plaintiff, v. The Rochester and Pittsburgh Railroad Company, Defendant.
   Motion for new trial denied and judgment ordered for the plaintiff on the verdict.

Opinion by

Bradley, J.


text:
    Elias A. Mead, Respondent, v. Charles E. Parker, Appellant.
   Judgmentand order reversed and a new trial granted, costs to abide the event.

Opinion by

Bradley, J.


author: Barker, J.

text:
    Abner P. Adams, Respondent, v. George P. Langmade, Appellant.
   Order appealed from reversed and taxation of costs set aside, and costs in the County Court awarded to the appellant, with ten dollars costs of this appeal and disbursements.

Opinion by

Barker, J.


text:
    James Woodmansee, Appellant, v. John Kennicutt, Respondent.
   Judgment affirmed on che opinion of the county judge, (Richardson v. Northrup, 66 Barb., 85; Hoyle v. The New York Central, 28 Hun, 363.) Held, that it does not appear that the justice set off the costs of the judgment against the defendant, as against the costs in the judgment, in favor of the other defendant. The words u two dollars and twelve cents in favor of plaintiff ” bear no such construction. They may mean the balance going to the plaintiff after the justice ‘ has deducted his foes.


text:
    Andrew J. Helmer, appellant, v. George Green and others, Respondents.
   Order affirmed, with-ten dollars costs and disbursements.


author: aight, J.

text:
    Frank Van Lone, Respondent, v. Nathan Scribner, Appellant
   —Judgment affirmed

Opinion by -

aight, J.


text:
    Hannah M. Woodard, as Administratrix, etc., Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Judgment affirmed.

Opinion by

Haight, J.;

Bradley, J., not sitting.


author: Haight, J.

text:
    Lauren Olmstead, Respondent, v. Thomas Read, as Sheriff, etc., Appellant.
   Judgment affirmed.

Opinion by

Haight, J.


text:
    Charles E. Tomion, Respondent, v. James H. Holton, Appellant.
   Judgment affirmed.

Opinion by

Haight, J.


text:
    Mary A. Bragley, as Administratrix, etc , Appellant, v. John Dow, Respondent.
   — Judgment and order affirmed.

Opinion by

Haight, J.


author: Haight, j.

text:
    The Board of Education of the Union Free School District No. 1 of Olean v. John King and others.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Haight, j.


text:
    Hiram C Pettibone, as Receiver, etc., Appellant, v. William E. Drakeford, Respondent.
   Order affirmed.

Opinion by

Childs, J.


author: Barnard, P. J.

text:
    Michael Coyle, Respondent, v. Henry E. Pierrepont, Jr., and others, Appellants.
   Motion granted.

Opinion hy

Barnard, P. J.


text:
    Leonard D. Tice v. Frank Dromgoole and another.
   Motion denied, with ten dollars c-sls

Opinion by

Barnard, P. J.

Pratt, J., not sitting.


author: Barnard, P. J.;

text:
    David Cromwell, Treasurer, etc., Respondent, v. John H. Hull and others, Appellants.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Samuel Firnsky, Appellant, v. L. Wilson, Respondent.
   Order reversed, with costs and disbursements.

Opinion by

Barnard, P. J.


author: Pratt, J.

text:
    Moses May, Appellant, v. Joseph M. Ohmeis and others, Respondents.
   Judgment and order denying new trial, and order granting allowance affirmed, with costs.

Opinion hy

Pratt, J.


author: Barnard. P. J.

text:
    Phoebe Angevine and others, Appellants, v. John M. Jackson, Executor, etc., Respondent
   Depree of surrogate reversed, andissues ordered to be framed for trial in Queens County Circuit Court, all questions or costs reserved until after trial of issues.

Opinion by

Barnard. P. J.


author: Pratt, J.;

text:
    Ellwood Birdsall, Respondent, v. The Board of Supervisors of Westchester County, Appellant.
   Judgment of affirmance, with costs.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Matter of Accounting of Executor of William Nelson.
   Motion granted.

Opinion by

Pratt, J.


text:
    Stephen Hasbrouck, Appellant, v. Charles T. Lunt, Respondent.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Alfred S. Bates, Respondent, v. William J. Riordan, Appellant.
   Judgment affirmed, with costs.

Opinion hy

Pratt, J.;

Dykman, J., not sitting.


text:
    John O. Hoyt, Plaintiff, v. The Continental Life Insurance Company, Defendant.
   Order affirmed, with costs and disbursements.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Stephen S. Morsht, Plaintiff, v. Maria McGee and others, Defendants.
   Motion denied.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


author: Dykman, J.

text:
    Edward W. Edwards, Appellant, v. Henry O. Nichols, Respondent.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.


text:
    Hiram B. Sarles, Appellant, v. Hopkins G. Barrett, Respondent.
   Judgment of County Court and of justice reversed, with costs.

Opinion hy

Barnard, P. J.


author: Dvkman, J.;

text:
    Hiram B Sarles, Appellant, v. Hopkins G. Barrett, Respondent.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dvkman, J.;

Barnard, P. J.. not sitting.


text:
    David Kidd, Respondent, v. William J. Embler, Appellant.
   Appeal withdrawn.


author: Dykman, J.;

text:
    Cornelia V. Phillips, Appellant, v. The Highland National Bank, Respondent.
   Judgment affirmed, with costs.

Opinion hy

Dykman, J.;

Barnard, P. J.. dissenting.


author: Pratt, J. ;

text:
    James B. Beers, Respondent, v. James B. Olney, Appellant.
   Order affirmed, with costs.

Opinion by

Pratt, J. ;

Barnard, P. J., not sitting.


author: Barnard, I'. J.

text:
    In the Matter of Alexander Hopkins.
   Order affirmed, with c^sts and disbursements.

Opinion by

Barnard, I'. J.


text:
    Margaret A. Allison, Respondent, v. Robert Weir, Appellant.
   Decree affirmed, with costs.

Opinion by

Dykman, J.


text:
    Enos Lee, as Executor, etc., Respondent, v. Amy Horton, Administratrix, etc., Appellant.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


author: Barnard, P, J.;

text:
    Isaac H. Cary and another, Respondents, v. The Duplex Safety Boiler Company, Appellant.
   Judgment and order deuying motion for judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P, J.;

Pratt, J., not sitting.


text:
    The Equitable Life Insurance Society of the United States, Appellant, v. John H. C. Doscher and others, Respondents.
   Reargument ordered.


author: Pratt, J.; Barnard, P. J.,

text:
    Sallie G. Thorington and others, Appellants, v. J. V. Merrick and William H. Merrick, Respondents.
   Order vacating attachment affirmed, with costs.

Opinion by

Pratt, J.;

Barnard, P. J.,

dissenting.


text:
    Lewis Abrams, by Guardian, Respondent, v. The Van Brunt Street and Erie Railroad Company, Appellant.
   Judgment and order denying new trial on minutes affirmed, with costs, and order denying new trial on the ground of newly discovered evidence affirmed, with costs and disbursements.

Opinion by


text:
    In the Matter of the Guardianship of Ludlow W. Valentine, an Infant.
   Decree or order appointing guardian affirmed, with costs.

Opinion hy

Barnard, P. J.


text:
    Franklin Woodruff and others, Respondents, v. Frederic C. Havemeyer and others, Appellants.
   Judgment affirmed, with costs.

Opinion hy

Pratt, J.


text:
    Thomas F. Donohue, Respondent, v. Christopher Malloy, Appellant
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.


text:
    Matthew C. Uhrig, Appellant, v. Charles A. Silver, Respondent.
   Judgment and order readjusting costs affirmed, with costs.

Opinion by

Pratt, J.


text:
    George W. Conselyea and another, as Executors, etc., Respondents, v. Dudley Blanchard and others, Appellants.
   Judgment upon the appeal of Blanchard and O’Rourke affirmed, with costs. Judgment upon the appeal of Drew and Bucko affirmed, with costs.


text:
    James A. Whalen, Appellant, v. Pierre T. Tunison, Respondents.
   Judgment affirmed with costs,

opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    William R. Clarkson and others, Respondents, v. Charles E Cooke, Appellant.
   Order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


author: Dykman. J.; Pratt, J..

text:
    Mary J. McKinney, Respondent, v. The Grand Street and Prospect Park and Flatbush Railroad, Appellant.
   —Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman. J.;

Pratt, J..

dissenting.


text:
    Ellis R. Thomas and another, Respondents, v. Thomas J. Evans and others, Appellants.
   Judgment against all the defendants for costs stricken out of the judgment appealed from. Judgment in favor of plaintiff, and defendant John B. Thomas against the other defendants-modified by allowing §1,117.78 upon the judgment, and affirming judgmentfor $183.78 witn costs of appeal. Order of May *¿1, 1884r affirmed, without costs. Order of June 3, 1881, affirmed, without costs.

Opinion by

Pratt, J.


text:
    Richard V. White, Respondent, v. The Twenty-third Street Railway Company, Appellant.
   judgment and order. denying new trial affirmed,wit.h costs.

Opinion by

Barnard, P. J.


author: Dykman. J.:

text:
    The People of the State of New York v. James McGuirk.
   Order affirmed.

Opinion by

Dykman. J.:

Barnard, P. J., not sitting


text:
    Mary E. Shafer, Respondent, v. James Sinclair and Charlotte Sinclair, Appellants.
   Judgment affirmed, with one bill of costs.

Opinion by

Pratt, J.


text:
    Bessie J. Cumming, Respondent, v. The Brooklyn City Railroad Company, Appellant.
   Judgment and order denying new trial affirmed, with costs

Opinion by

Barnard, P. J.


text:
    Ida Lindsay, Respondent, v. The Brooklyn City and Newtown Railroad Company, Appellant.
   .Judgment and order denying new trial affirmed. with costs

Opinion by

Dykman, J.


text:
    Florian Fleckenstein, Respondent, v. The Dry Dock, East Broadway and Battery Railroad Company, Appellant.
   Judgment aud order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    The People of the State of New York ex rel. Curley v. The Board of County canvassers of Queens County.
   Order affirmed, with costs and disbursements.

Opiuion by

Barnard, P. J.


text:
    Andrew Wills, Respondent, v. Conrad Huber, Appellant.
   Order confirming report of referee affirmed, with costs.

Opinion by

Pratt, J.


author: Dykman, J :

text:
    George W. Ten Eyck, Respondent, v. Lyman Freer, Appellant
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Dykman, J :

Barnard P. J., not sitting.


text:
    The People of the State of New York, Respondent, v. Guisseppe Guidici, Appellant.
   Conviction and judgment affirmed.

Opinion by

Barnard, P. J.


text:
    Richard Marshall, Administrator, etc., Respondent, v. Charles E. Bressler and others, Appellants.
   Order overruling demurrer and judgment thereon affirmed, with costs.

Opinion by

Dykman, J.


text:
    David A. Scott and another, Respondents, v. Augustus L. Case and another, Appellants.
   Judgment and order denying new trial aud granting allowance affirmed, with costs.

Opinion by

Pratt, J.


text:
    John P. Bailey, Respondent, v. Ulysses S. Grant, Jr., Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opiuion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    In the Matter of the Settlement of Esther Fleet, Executrix, etc.
   Decree of surrogate reversed, with costs against the executor .personally, and proceedings remitted to surrogate for new hearing.

Opinion by

Barnard, P. J.


text:
    Otis E. Scudder, Respondent, v. William Carroll, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.;

Barnard. P. J., not sitting.


author: Barnard. 1\ J.

text:
    Andrew F. Kindberg, Respondent, v. Alvah Mudgett, Appellant.
   Order overruling defendant’s demurrer and judgment tlvOueon affirmed, with costs.

Opinion by

Barnard. 1\ J.


text:
    Matter of Complaint of Michael Delahanty.
   •The papers are sufficient to require investigation ; referred to William S. Cogswell to take proof and report to the court.

Opinion by

Dykman, J.


text:
    Henry Sanger, Appellant, v. John C. Merritt, Respondent.
   Judgment and order denying new trial reversed and new tiial granted, costé to abide event.

Opinions by

Pratt and Dyls> mau, JJ.;

Barnard, P. J.,

dissenting.


text:
    James Dolan, Respondent, v. The Brooklyn, Flatbush and Coney Island Railroad Company, Appellant.
   Judgment and order denying defendant’s motion'for judgment, and order denying new trial affirmed, with costs.

Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    John H. Tredwell, Respondent, v. Isaac Newlin, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard. P. J.


text:
    Ellwood Birdsall v. The Board of Supervisors of Westchester County.
   Judgment affirmed, wi,h costs.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Mary A. Stone, as Executrix, etc., v. Henry A. Benedict, as Executor, etc.
   The deceased child of Mary A. Stone took a vested interest under the will; Mary A. Stone is not entitled to a lien for her improvements upon the farm in which, she has a life estate.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Francis McLaughlin, Appellant, v. George W. Campbell and another, Respondents.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.


text:
    Rowland Brill, Appellant, v. John Brill, Respondent.
   Re-argument, ordered.


author: Barnard, P. J.; Pratt, J.,

text:
    John P. Ames, Respondent, v. William B. Gurney, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Barnard, P. J.;

Pratt, J.,

dissenting.


text:
    Charles J. Quinby v. Horace B. Claflin and others.
   Order modified. Order to be settled Dy Justice Bartlett, without costs of appeal.


text:
    Charles J. Quinby v. Horace B. Claflin and others.
   Order modified. Order to be settled by Judge Bartlett, without costs.


author: Daniels, J.

text:
    John E. Furman, Respondent, v. The Union Pacific Railway Company, Appellant.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Daniels, J.


author: Davis, P. J

text:
    The Tradesman Bank of the city of New York, Respondent, v. James Longstreet, Appellant.
   Judgment affirmed, with costs of appeal in but one suit.

Opiniou by

Davis, P. J


author: Brady and Daniels, JJ.

text:
    James W. Whitney and others, Appellants, v. Adolphus Hoffstadt, Respondent.
   Orders affirmed, without costs.

Opinions by

Brady and Daniels, JJ.


text:
    The National Butchers and Drovers’ Bank, Respondent, v. Edward D. Bassford, Executor, etc., Appellant.
   Judgment modified as directed in opinion, and as modified affirmed, without costs.

Opinion by

Daniels, J.


author: Davis, P. J.

text:
    Harvey Kennedy, Respondent, v. Henry H. Porter and others, Appellants.
   Judgment reversed so far as relates to the common stock, and affirmed as to the preferred stock, and the proceedings directed by the court below ordered to be taken to ascertain the amount the plaintiff is entitled to recover in respect thereof. Neither party should have costs on this appeal.

Opinion by

Davis, P. J.


text:
    Same v. Same.
   Motion to dismiss motion for new trial under section 1001 of the Code denied, and motion for new trial denied, without costs.


text:
    Caleb E. Whitaker, Appellant, v. John M. Masterton, Respondent.
   Judgment affirmed.

Opinion by

Daniels, J.


author: Daniels, J., and Davis, P. J.

text:
    William P. Wentworth, Appellant, v. Thomas L. Wilson and others, Respondents.
   Order reversed, with ten dollars costs and disbursements, and order to be entered as directed in opinion of Davis, P. J.

Opinions by

Daniels, J., and Davis, P. J.


text:
    Edmund A. Saunders and others, Respondents, v. Bernard Reilly, late Sheriff, etc., Appellant.
   Judgment and order affirmed

Opinion by

Davis, P. J.


author: Davis, P.J.

text:
    Christian T. Christensen, Respondent, v. Amos F. Eno, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.

Opinion by

Davis, P.J.


text:
    Same v. Same
   Judgment reversed, with costs of appeal to the appellant, and complaint dismissed, with costs.

Opinion by

Davis, P. J.


author: Brady, J.

text:
    Elizabeth W. Reese, Individually and as Administratrix, etc., Appellant, v. Harold W. Pearsall, Appellant, Impleaded with Thomas W. Pearsall and others, Respondents.
   Order modified as directed in opiuiou, and affirmed aB modified, without costs.

Opinion by

Brady, J.


text:
    Horace K. Thurber and others, Respondents, v. Daniel H. Bower, Appellant.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Davis, P. J.


text:
    Charles T. Parks, as Receiver, etc., Appellant, v. Charles Turno, Respondent.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    James Talcott, Respondent, v. Jacob Harris and Abraham Berger, Appellants.
   Judgment reversed, new trial ordered, costs to abide event.

Opinions by

Brady and Daniels, JJ.


text:
    John Branigan, Respondent, v. Owen Donnelly, Appellant
   Order reversed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    Charles K. Billings, Respondent, v. Robert H. Parks and others, Appellants.
   Judgment and order reversed, and motion to strike out answer denied.

Opinion by

Brady, J.


text:
    James Bigler, Appellant, v. Edwin Atkins, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Daniels, J.


text:
    John H. Morris, as Assignee of James D. Fish, v. William Warner and others.
   Order affirmed.

Opinion by

Brady, J.


text:
    Charles L. Reason, Appellant, v. The Board of Education of the city of New York and others, Respondents.
   Order affirmed, without costs and without prejudice to any other motion the appellant may be advised to make

Opinion by

Brady, J.


text:
    Horace B. Claflin and others, v. Clinton H. Smith and others.
   Order reversed, entry of order hereon suspended as suggested in opinion of Davis, P. J.

Opinions by

Daniels, J., and Davis, P. J.


author: Davis., P. J.

text:
    Ferdinand Blumenthal and others, Respondents, v. Willis Bristol, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Davis., P. J.


text:
    Elvin O. Murdock, Respondent, v. George H. Burgess and Frank A. Newton, Appellants.
   Judgment affirmed.

Opinion by

Daniels, J.


text:
    Louisa Bliven, Appellant, v. Ella M. Bliven, as Executrix, etc., and others, Respondents.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Brady, J.


text:
    Nathan Arnold and others, Respondents, v. Albert Back and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Opinions by

Brady and Daniels, JJ., and Davis, P. J.


text:
    A. Barton Hepburn, Respondent, v. James McDonnell, Appellant.
   Judgment modified as directed in opinion, and as modified affirmed, without costs to either party.

Opinion by

Daniels, J.


text:
    John Pondir, Respondent, v. The New York, Lake Erie and Western Railroad Company and others, Appellants.
   Judgment affirmed, with leave t.o defendants to answer over on the usual terms.

Opinion by

Brady, J.


text:
    The People of the State of New York v. The Knickerbocker Life Insurance Company.
   Accounts allosved as stated in memorandum of Daniels. J.


text:
    Pleasant H. Pendleton v. The Knickerbocker Life Insurance Company.
   Account allowed.


text:
    George Ehrat, Appellant, v. Clement A. Auffim'Ordt and others, Respondents.
   Order reversed, with ten dollars costs and disbursements.


text:
    In the Matter of William Tilden.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Adam Geyer, Respondent, v. Henry D. Brewster and others, Appellants.—
   Order affirmed, with ten dollars costs and disbursements.


author: Daniels J.

text:
    Louisa A. Barclay, Respondent, v. Delos C. Culver, Appellant.
   —Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Daniels J.


text:
    Mary L. C. Rendon, Respondent, v. Ynes Verona Socarras and another, Appellants.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars


text:
    William H. Riblet, Appellant, v. Thomas H. H. Messenger, Respondent.
   Order reversed,with ten dollars costs and disbursements.


author: Daniels, J

text:
    Continental Store Service Company, Respondent, v. Curtis Clark and others, Appellants.
   Order modified as directed in opinion, and affirmed as modified, with costs to abide the event.

Opinion by

Daniels, J


text:
    Juan F. L. Sarrion, Respondent, v. Henry C. De Rivera and others, Appellants
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    James M. Smith, as Receiver, etc., Appellant, v. Henry M. Platt and others, Respondents.
   Order modified as directed in opinion, and affirmed as modified, without costs to either party.

Opinion by

Daniels, J.


text:
    Christian Muller, Respondent, v. Wilhelmina Muller, Appellant.
   Order reversed, with ton dollars costs and disbursements, and motion denied.

Opinion by

Daniels, J.


text:
    New York, Lake Erie and Western Railroad Company, Respondent, v. George W. Carhart and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements,

opinion by

Daniels, J.


text:
    Francis E. Burrows, Respondent, v. Charles M. Dickinson, Appellant.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Davis, P. J.


text:
    August Van Deventer and another, Appellants, v. John Blust, Respondent.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Opinion by

Davis, P. J.


author: Davis,. P. J.

text:
    Theodore H. Friend, Appellant, v. Mercantile Trust Company, Respondent, Impleaded with others.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Davis,. P. J.


text:
    John W. Gilbert, Plaintiff, v. Henry S. Deshon, Appellant. Margaret G. Westerfield, Respondent, and others, Defendants.
   Judgment affirmed.with costs on opinion of M&comber, J.


text:
    Thomas J. Pope and another, v. The Terre Haute Railway Company.
   Judgment and order affirmed on opinion of Daniels, J., on former argument.


text:
    Frieda Stachle, Respondent, v. Ferdinand Braun, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Toronto General Trust Company, Appellant, v. National Bank of Commerce, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements, to abide the event.


text:
    Alfred A. Cohen, Appellant, v. John W. Ellis and others, Respondents.
   Orders modified by reducing the costs in each of the orders below to ten dollars; and affirmed as modified, without costs.


text: The Attorney General v. The Continental Life Insurance Company.


text:
      In re Wieland.
   Order affirmed, without costs.


text:
    In the Matter of Francis F. Taylor.
   Order affirmed, with ten dollars costs and disbursements.


text:
    James W. Field, Appellant, v. James M. Allen, Respondent.
   Judgment affirmed.


text:
    The People of the State of New York ex rel. Robert Kent v. Board of Fire Commissioners.
   Order modified by directing the suspension of the relator for six months from October 8, 1884, without pa3r, instead of removing him. from office; without costs to either party.


text:
    George M. Birdsall, Respondent, v. James B. Davenport, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of William H. Ricketts, Receiver, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Donald R. Corbin, Respondent, v. J. P. Tuckerman, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Charles L. Vallard, Appellant, v. Robert L. Bamber and others, Respondents.
   Order reversed, with ten dollars costs and disbursements and proceedings remitted.


text:
    Charles C. Horton, v. Philip Beck, Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements, without prejudice to the renewal of the motion on proper notice to the assignee.


text:
    Samuel Bingham and another, Respondents, v. The Marine National Bank of the City of New York and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Barret H. Adams and another, Appellants, v. George Birdsall, Respondent.
   Orders affirmed, with ten dollars costs and disbursements.


text:
    Joseph Blumenthal, Appellant, v. Robert J. Anderson and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Leon Rheinstrom, Respondent, v. Bernhard Midas, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Austin G. Day, Plaintiff, v. Bankers and Merchants’ Telegraph Company, Defendant.
   Order affirmed, with ten dollars costs and disbursements. 4


author: Per Guriam.

text:
    Laura C. Delano, Respondent, v. Anthony McReynolds, Appellant.
   Order reversed; order entered canceling and discharging the judgment of record, without costs to either party.

Opinion

Per Guriam.


text:
    William Gibson Jones, Appellant, v. Ward H. Wakefield, Respondent.
   Order reversed, with ten dollars costs and disbursements.

Opinion

Per Guriam.


text:
    Millville Manufacturing Company, Appellant, v. John T. Salter, Respondent, Impleaded, etc.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion

Per Guriam.


author: Per Guriam

text:
    Jacob Zoller, Respondent, v. Joseph H. Groht and another, Appellants.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion

Per Guriam


text:
    Spencer Ervin and others, Appellants, v. The Oregon Railway and Navigation Company and others, Respondents.
   Motion denied, with ten dollars costs and disbursements.


text:
    Augustus De Bost v. Albert Palmer Company.
   Motion denied, with ten dollars costs and disbursements.


text:
    Ann McAdowery, Appellant, v. Margaret McKenna, Respondent.
   Decision modified so as to read “ decree affirmed, without costs.”.


text:
    In the Matter of the Second Avenue Railroad Company.
   Order entered appointing commissioners.


text:
    Henry C. Andrews v. George H. Moller.
   Reargument ordered.


text:
    The People of the State of New York ex rel. John Horan v. Board of Police Commissioners, etc., Respondents.
   Order modified so as to suspend the relator without pay until May 1, 1885, instead of removing him from office, without costs to either party.


text:
    Stephen De Wolfe, Appellant, v. Elizabeth D. Vail, Respondent.
   Judgment and order affirmed.

Opinion by

Daniels, J.


text:
    James S. Watt, Appellant, v. Peter Bowe, Sheriff, etc., Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion

Per Guriam.


text:
    Ann Maria Deen, Appellant, v. William Milne, as Executor, etc., Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion

Per Guriam.


text:
    Edmund Richardson, Appellant, v. Henry R. Jackson and others, Respondents.
   Judgment affirmed, with costs.

Opinion

Per Guriam.


author: Haight, J. :

text:
    PHINEAS O. STEVENS, Appellant, v. HARRISON C. CHENEY and JOHN CARTER, Respondents.

      Civil damage act — action by a father for an injury to Ms son — what proof of an injury to the father’s meams of suppoi-i must be given.

    This action was brought under the civil damage act, to recover damages alleged to have been sustained by the plaintiff by reason of the sale to his son, by the defendants, of intoxicating liquors. The son was a married man, thirty-one years old, and had always lived with his father. In consequence of his intoxication he was run over by the cars, and so injured as to render the amputation of both legs necessary:

      HeId, that in order to recover damages for an injury to his means of support the plaintiff must show:

      Mrst. That the son was poor and possessed no means of his own, so that the plaintiff would be legally bound to support and maintain him for the future, and that by reason thereof the plaintiff would be without means of support for himself; or,

      Second. That he, the plaintiff, was a poor person, unable to support and maintain himself, and that his son was legally bound to support him.
    That in the absence of proof of these facts he was properly nonsuited.
    Appeal from a judgment, entered upon a nonsuit granted at the Steuben Circuit, and from an order of tbe Monroe Special Term denying a motion for a new trial made upon a case and exceptions.

      Burrell <& Boimson- for tbe appellant.

      Eli Soule, for tbe respondents.
   Haight, J. :

This action was brought to recover damages which, it is alleged, the plaintiff has sustained by injuries to his property or means of support by reason of the intoxication of Carlton Steveus, his son. The defendant Carter was the owner of the hotel and premises known as the Canisteo House. He leased the same to the defendant Cheney for hotel purposes, and took a bond from Cheney indemnifying him against the consequences of violations of the civil damage act.

Carlton Stevens was a married man of the age of thirty-one years. He drank strong and spirituous liquors sold to him by the defendant Cheney at the bar of defendant’s hotel, and became so intoxicated that on his way home he was unable to properly care for himself, and, in consequence of such intoxication, was run over by the cars, making it necessary to amputate both of his legs. Carlton has always lived with the plaintiff. The statute provides that “every husband, wife, child, parent, guardian, employer or other person who shall be injured in person or property, or meams of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name against any person or persons who shall, by selling or giving away intoxicating liquors, have caused the intoxication in whole or in part of such person or persons, and any person owning or renting, or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable severally or jointly with the person or persons selling or giving away intoxicating liquors as aforesaid, for all damages sustained,” etc. (Chap. 646, Laws of 1873.)

It will be observed that a cause of action is expressly given by statute to a parent and no limitation is made as to the age of the child. It is contended, however, that there can be no recovery for injury in means of support, for the reason that the son was over twenty-one years of age at the time of the injury, and under no .egal liability to aid in the support of the plaintiff. Section 914 of the Code of Criminal Procedure, is in substance copied from the Revised Statutes. It provides that “ the father, mother and children of sufficient ability, of a poor person who is insane, blind, old, lame, impotent or decrepid, so as to be unable by work to maintain himself, must, at their own charge, relieve and maintain him.” Section 915 and the following sections provide for the manner in which' such support may be compelled. Under this statute, the child is bound to aid in the support of a parent if he is a poor person and unable to maintain himself, and if he fails to do so, the Court of Sessions may compel him. If the child recognizes the duty laid upon him by statute to care for his indigent parent, and voluntarily assume it without waiting to be compelled by the Court of Sessions, what right have third persons or wrong-doers to interfere and prevent ? The law affords the same protection to those who perform their duty voluntarily as it does to those who reluctantly act under compulsion, and we are of the opinion that if the parent is a poor person within the provisions of the statute, it was the duty of the son to aid in his support, and if he voluntarily did that, and the plaintiff has been deprived of his means of support by reason of the intoxication, that then he may recover •even though his child is over the age of twenty-one years. (Good v. Towns, 30 Alb. Law Jour., 370; 56 Vt., 410.) In ■order to recover, however, he must establish the fact that he has been injured either in his person, property or means of support. In this case there is no claim that the plaintiff has been injured in his person, and there is no evidence tending to show that he has been injured in his property. An injury to property is an ■actionable act whereby the estate of another is lessened other than .a personal injury or the breach of a contract. (Code, § 3343.) It was the plaintiff’s son that was injured, and the father has no property in the son. If it had been his horse or cow or slave (when the law recognized property in slaves) that was injured, then it would be an injury to property.

The taking of the foot-board out of the bedstead for the purpose of properly treating the amputated limbs of the son is not such an injury to property as will permit a recovery, for the reason that the intoxication was not the proximate cause of the injury to the bed. In order to entitle the party to recover for injury to property, the intoxication must be the proximate cause of the injury. If, therefore, the plaintiff is entitled to recover, it must be upon the ground that he has been injured in his means of support. Upon this branch of the case the evidence contained in the appeal boob is-exceedingly meager and unsatisfactory. The plaintiff testified that his son Carlton furnished some of the wood for the use of the family., at times some flour, also some tea and sugar, and raised some vegetables; that he cut hay with the horses, and drove the plaintiff to and from his office prior to the injury; that since the injury Carlton has not been able to labor, and has still continued te live with him. lie further testified that he owned a house and lot at Center Canisteo, a horse and wagon and an old buggy; that the house and lot was worth $350, the horse, seventy dollars, the buggy, thirty dollars, and the lumber wagon, eighteen dollars ; that he is a justice of the peace, and that his income does not exceed $250 per annum. He does not testify that this is all the property that he-has, or whether or not his son Carlton has any property, or the-amount of- it, if any. From aught that appears to the contrary, the son may be a man possessing ample fortune with which to sup- ■ port himself through life, and the plaintiff may be the owner of every vacant lot in the village of Canisteo. Carlton, by reason-of the loss of his limbs, is unable to work, and is a decrepid person within the meaning of the statute. If it had been made to appear by the evidence that he was a poor person, possessing no means of his own, then it would have become the duty of the plaintiff to-support and maintain his son; he would be liable therefor, and such support and maintenance could be enforced. The case, however, fails to show that he is a poor person, and it thus fails to-establish the liability of the father to support and care for him. after the injury.

Again, the plaintiff, in order to recover for injury to Ms means of support, must show that he is a poor person unable to maintain himself and that his son owed him the duty of support witMn the provisions of the stahite. That his accustomed means of support have been cut off or-curtailed and that he has no adequate means of maintenance from accumulated capital or property remaining. In the case of Volans v. Owen (reported in 74 N. Y., 526), the Court of Appeals, upon this question, say: “We are of the opinion that where injury to means of support ’ is the gravamen of the action, the plaintiff, in order to maintain the action, must show that by or in consequence of the intoxication or the acts of the intoxicated person, his accustomed means of maintenance have been cut off or curtailed, or that he has been reduced to a state of dependence by being deprived of the support which he had before enjoyed. And that in this case, the plaintiff cannot recover for the loss of services nr the expenses of his son’s illness under the words ‘ means of support,’ without proof that the services were necessary to his support, or that the charge brought upon him by his son’s illness diminished his means so as to render them inadequate therefor. The primary purpose of the legislature in giving a right of action for an injury of this character was the protection of the dependent and helpless. The diminution of ingome or loss of property does not constitute an. injury to means of support within the fair intendment of the statute. If the plaintiff, notwithstanding, has adequate means of maintenance from accumulated capital or property, or his remaining income, is sufficient for his support,” etc.

Applying this rule to the case under consideration, it became necessary for the plaintiff to show that the wood, flour, tea, sugar ■and vegetables furnished by Carlton to the plaintiff were necessary for the plaintiff’s support, that the plaintiff is a poor person, unable to maintain himself, that he is dependent and helpless and is not possessed of accumulated capital or property adequate for his maintenance without the aid of his son. These propositions the plaintiff has failed to establish. On the contrary, he has alleged in his ■complaint that he is possessed of sufficient ability to support his ■son. A party is bound by his pleadings. If he is possessed of sufficient ability, etc., upon what theory could the jury find that he is dependent and helpless and not possessed of accumulated capital •adequate for his maintenance without the aid of his son ? We are, ■therefore, of the opinion that the evidence fails to bring the plaintiff within the rule which authorizes a recovery for injury to means •of support, and that the court, at circuit, properly granted a nonsuit.

Judgment and order affirmed.

Smith, P. J., concurred; Barker, J., not voting; Bradley, J., mot sitting.

Judgment and order affirmed.


author: Haigi-it, J.:

text:
    JOHN M. AVERY, Respondent, v. GEORGE EVERETT, Appellant, Impleaded with LOUISA EVERETT.

      Oml death — effect of, on property rights, of sentencing a person to imprisonment for life — 3 B. 8. (6th ed.), 994, secs. 40, 48 — when word “death" means natural' death.

    A testator devised and bequeathed all his real estate to his wife so long as she should remain unmarried and his widow, but on her decease or remarriage,, then what remained he gave and devised to his son Charles. In case his son Charles should die without children, then after his wife’s death and his son’s-death, he gave all the property that remained to a Nephew. On October 14', 1875, the son was sentenced to imprisonment in the State prison for life on a conviction of murder in the second degree. The widow died on September 88,1878.

      Meld, that the civil death of the son, occasioned by.his sentence to imprisonment for life in a State prison, did not under 3 Revised Statutes (Bth ed.), 994, section 40, vest the title to or the right to possession of the property in the nephew.
    That the testator intended by the word “ death,” natural and not civil death.
    Appeal by the defendant George Everett from a judgment entered upon the decision of the court, on a trial before the court-without a jury, at the Cayuga Circuit.

      William Tiffany, for the appellant.
    Rhodes, Goon & JELiggms, for the respondent.
   Haigi-it, J.:

This is an action in ejectment brought to recover the possession of lands. The facts were agreed upon, and are in substance as-follows: John H. Southwick died seized of the lands in question on the first day of September, 1869, leaving him surviving his wife Eliza Ann Southwick, his son Charles H. Southwick, and some other children. He left a last will and testament, which was-subsequently admitted to probate as a will of real and personal estate. So much of it as is material is as follows: “ I give and bequeath to my beloved wife Eliza Ann, all my household furniture and all the rest of my personal property, after paying from the same the several legacies already named to be her’s forever. I also give, devise and bequeath to my beloved wife Eliza Ann, all my real estate as long as she shall remain unmarried and my widow, but on her decease or remarriage then what may remain of said real or personal property I give and devise to my son Charles H. In «ase my son Charles H. should die without children, then after my wife Eliza Ann’s death and my son Charles H.’s death, my will is, all the property, real or personal, that may remain shall go to Augustus Southwiek, of Pennsylvania, my brother Nathan’s son.” Eliza Ann Southwiek, the widow, resided upon ■ the real estate until her death September 28, 1878. Charles H. Southwiek Avas convicted of the crime of murder in the second degree, and on the 14th day of October, 1875, sentenced to imprisonment in the State prison at Auburn for the term of his natural life, where he ever since then and now is confined on such sentence, and has never had any children. Augustus Southwiek and wife, on the 7th of November, 1881, executed and delivered to the plaintiff a deed of the real estate in question. The defendant George Everett- is in possession of the premises under a parol lease from Charles H. Southwiek.- Louisa Everett is his wife and the daughter of Eliza Ann Southwiek. The court below held and decided that the plaintiff was entitled to recover the possession of the lands.

A question is raised in reference to the construction of the will. It, perhaps, is not free from difficulty. ¥e have not found it necessary to give this branch of the case a careful examination. The parties concede that if Charles is alive he took an estate in possession of the premises on the death of his mother, and that, at most, it can only be defeated in case of his death without children. Assuming this to be the case, it then remains to be determined whether or not the contingency has happened. Has Charles died without children? Section 40 (3 R. S. [6th. ed.], 994) provides that: “A person sentenced to imprisonment in a State prison for fife, shall thereafter be deemed civilly dead.” It thus becomes necessary to determine what is meant by the term “ civilly dead.” Section 42 of the same statute proA-ides: “ No conviction of any person for any offense whatever (except upon an outlawry for treason as hereinbefore provided), shall work a forfeiture of any goods, chattels, lands, tenements or hereditaments, or of any right or interest therein.” So that even though he may be sentenced to imprisonment for life and deemed civilly dead, no forfeiture takes place of any of his rights or interests in lands. Charles EL South-wick has brothers and sisters living. Augustus Southwick is his cousin, and is not, therefore, his heir-at-law. If Charles had not been sentenced to imprisonment for life, he, upon the death of his mother’, would have been entitled to the possession of the premises and to their use and enjoyment; and if he should die leaving children him surviving, the interest of the plaintiff would cease and determine. If the plaintiff is entitled to recover, it is upon the ground that Augustus Southwick,. by reason of the civil death of Charles H., became vested with the fee absolute to the land. So that in case Charles should subsequently be pardoned, or should escape to a foreign country, marry and have children, neither he nor his children, on his death, could take or regain the premises. This result, it appears to us, would be in the nature of a forfeiture, which the statute prohibits.

At common law there appears to have been a distinction between civil death as applied to a person who has entered into religion and become a monk professed, and civil death as applied to one convicted of a felony. A person who had entered into a monastery and become a monk, renounced all secular concerns and claimed an exemption from the duties of civil life and the commands of the temporal magistrates. The policy of the law was not to suffer persons to enjoy the benefits of the law who secluded themselves from it and refused to submit to its requirements. For these reasons a monk was considered ‘absolutely dead in law and his estate would go to his heir. Tie might make a testament and appoint executors, or if he made none, the ordinary might grant administration to his next of kin as if he were actually dead intestate. His executors and administrators had the same power to maintain actions for debt as they would in case he were naturally deceased. He was so effectually dead in law that a lease made even to a third person during the life of one who afterwards became a monk, determined by his entry into religion. (1 Black. Com , 132 ; Coke upon Littleton, § 200.)

Whilst a person attainted of felony and adjudged to imprisonment for life, was considered oiviliter mortuus, his disability was not considered to be the strict civil death that attaches to persons entering into religion or who have been banished the realm. He could not bring an action or enjoy his property, but he could be charged in a civil suit and be compelled to plead to the merits ; he was under the protection of the law, so that to kill him without warrant would be murder. He could acquire, even though he could not enjoy. He could purchase lands to him and his heirs, and could lease and demise, and his estate would not descend to his heirs. (Bullock v. Dodds, 2 Barn. & Ald., 268-275; Doe v. Pritchard, 5 B. & Adol. 765, see opinion of Denman, C. J.; Kynnaird v. Leslie, 1 Com. Pleas Law R., 389; Platner v. Sherwood, 6 Johns. Ch., 118-127.)

The statute of the 29th of March, 1799, provided that in all cases where any person should be duly convicted or attainted of any felony thereafter to be committed, and adjudged to imprisonment for life in the State prison, he shall be deemed and taken to be civilly dead to all intents and purposes in the law. Chancellor Kent, in commenting upon this statute, in the case of Troup v. Wood (4 Johns. Ch. R., 248), says : “ I apprehend that the act of March, 1799, was only declaratory of the existing law and enacted for greater caution. Lord Coke says: That every person attainted of felony or who is banished for life, or having committed felony abjures the realm, is extra legem positxhs, and is accounted in law civiliter mortuus.” In the case of Platner v. Sherwood (supra), the chancellor again refers to this question, and his remarks in the case of Troup v. Wood, and states that he did not pursue the subject to the extent that he should have done ; that he has since had the benefit of a full and able discussion, and of a diligent and accurate research upon the question. Particular stress is laid upon the concluding clause of this statute, “ to all intents and purposes in the law,” and he appears to have reached the conclusion that the statute did change the common law in that regard. Under this statute, it was held where a defendant in a •cause is sentenced to a state prison for life, he is considered as civilly dead and a suit against him is abated. (Graham v. Adams, 2 Johns. Cas., 407.) That a pardon would not affect the administration upon his estate, but would restore him to the relation of father and give him the right to the custody of his infant children. (Deming v. Daniels, 10 Johns., 232.)

On the adoption of the Revised Statutes, the statute of 1799 was repealed, and section 40, above quoted, enacted in its stead. Under this statute he is deemed civilly dead; the words to all intents and purposes in the law ” have been stricken out.

It appears to us that this change was for a purpose; that the object of the statute was to place a person under imprisonment for life under no greater disability than existed at common law. That-this is the effect of the decision of the Court of Appeals in the-case of Davis v. Duffie (reported in 1 Abbott N. Y. Ct. of App. Dec., 486), it seems to us. there can be no doubt. It held that the service of a process upon a convict in a State prison was valid and gives the court jurisdiction. If he is dead to the extent that his personal property passes to his administrators, and his real estate descends to his heirs, should not his creditors pursue the personal representatives ? Under a recent statute he may now testify as a witness upon civil or criminal trials, and in the discretion of the court a writ of habeas corpus may issue to take him from prison for that, purpose. He is also under the protection of the law and any injury to his person not authorized is punishable in the same manner as if he was not under sentence.

Tbe statute in force at the death of Mrs. Soutbwick also provided that a person entitled to claim lands after the death of another person having a prior estate, may petition the court for an order that the person upon whose life such prior estate depends may be produced and shown, to the end that it may be determined as to whether or not the person having the prior estate is still alive, and if it shall appear that the person entitled to the prior estate is in prison, a writ of habeas corpus may issue to bring out the body of such person, and if it shall appear that he is still alive and his identity established, that fact shall be entered in the minutes of the court, and the party petitioning for the order shall pay the costs, etc. If, however, it shall be found that he is actually dead, then the petitioner shall be awarded the possession of the premises.. (See tit. 8, chap. 5, part 3 of the R. S.)

If Augustus Southwick should institute proceedings under this statute, it appearing that Charles is confined in prison, a writ of habeas corpus would issue, to produce his body. His body being produced and identified, it would become the duty of the court to-discharge the proceedings and to order the costs of the proceedings to be paid by the applicant.

Although this statute in much detail makes provision for a careful inquiry as to the death of the person entitled to the prior estate, it in no place contains any provision for the awarding of the possession of the lands because of civil death. Thus by implication we are led to infer that no such thing was intended. These provisions, with some changes, are now embraced in the Code (§§ 2302-2319).

The remarks of Balcom, J., at Special Term, in the ease of Freeman v. Frank (10 Abb. Pr. R., 370), to the effect that the rights and liabilities of a person civilly dead are as entirely gone as though he were actually dead, was obiter and not well considered.

If we are correct in our conclusion that under the Revised Statutes-the disability caused by civil death is no greater than the disability existing at common law on the part of persons attainted with felony, then we regard the case of Platner v. Sherwood (supra) as controlling upon the question here presented. The civil death is not such a death as would cause the real estate to descend to heirs. If not, then the civil death of Charles would not operate to vest the-fee in Augustus Southwick, or entitle him to the possession of the-premises.

Again, whilst this view of the meaning of civil death makes it. unnecessary to further construe or interpret the will, still we can hardly believe that the testator in providing for the transmission of the estate to Augustus Southwick, on the death of his son Charles, without children, had in contemplation his civil death. True, he-was bound to know the law and perhaps did understand that a person convicted of murder and sentenced for life would be deemed civilly dead, but in the construing of wills words must be given their ordinary meaning, except where some other is necessarily or-clearly indicated. The word death, as used in wills, is ordinarily intended to mean natural death.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Barker and Bradley, JJ., concurred.

So ordered.


author: Hai&bt, J.:

text:
    WILLIAM H. SALSBURY, Respondent, v. THOMAS U. PARSONS, Appellant.

      Exempt property — Code of Civil Procedure, secs. 1390, 1391 — Fi'ust—when invalid as being a passive one.

    This action was brought to recover damages for the conversion of certain wheat which had been sold under an execution issued upon a judgment recovered by the defendant against the •plaintiff. The wheat was raised upon a farm occupied by the plaintiff, and which had been devised by his father to his son Abram, to be held in trust for and during the natural life of the plaintiff,-for his benefit or that of his family. The will provided that if the said Abrám aud another son, Guy, should think it would be for the best good of the plaintiff or his family, they might allow the plaintiff to occupy the farm without rent, but the term was not to be for more than a year at a time. The trustee and Guy were authorized to lease the farm to other persons, or to sell and invest the proceeds, and appropriate the interest or income of the estate to and for the benefit of the said William or his family.

      Held, that even if the trust were assumed to be valid, yet, as the wheat was in part the product of the plaintiff’s own skill and labor, it could not be held entitled to the exemption accorded to the trust estate..
    That if the trust were invalid, the wheat was not exempt from execution, under section 1390 of the Code of Civil Procedure, as necessary ‘ ‘ flour and vegetatables, actually provided for family use,” as “wheat” is not “flour” within the meaning of that section.
    That it was not exempt under the $250 clause of section 1391 of the Code of Civil Procedure, as that related only to necessary household furniture, working tools and teams, professional instruments, furniture and library.

      It seems, that the trust was invalid, and that the title to the farm was vested in the plaintiff. (Per Haight, J.)
    Appeal from a judgment of the County Court of Niagara county, •affirming the judgment of a justice of the peace in favor of the plaintiff.

      David Millar, for the respondent.

      M. 8. <& B. J. Hunting, for the appellant.
   Hai&bt, J.:

This action was brought to recover damages for the alleged conversion of a quantity of wheat. The defendant was a judgment-creditor of the plaintiff. The wheat in question was levied upon and sold under the directions of the defendant by virtue of an execution issued upon the judgment. The respondent claims that the wheat was trust property, and, under the statute, not subject te levy and sale on execution.

There is no doubt but that a trust in lands created by a person other than the debtor and designed for the support of the debtor is not liable to execution, and can only be reached in equity where there is a surplus. (Code, § 1879 ; 1 R. S., 729, § 57; Williams v. Thorn, 70 N. Y., 270; Graff v. Bonnett, 31 id., 1; Bramhall v. Ferris, 14 id., 41; Downing v. Marshall, 23 id., 376.)

The important question raised for our consideration is as te whether or not the wheat in question was trust property. It appears from the conceded facts in the case that Guy M. Salsbury died seized of the premises on which the wheat was grown; that he left a last will and testament, which was admitted to probate in March, 1880; that the plaintiff has occupied the premises referred to by leave of the executor and Guy M. Salsbury, the plaintiff’s brother, under the provisions of the will, and that the wheat in question was raised by him on the land referred to. The plaintiff testified upon the trial, and it was not disputed, that he had the entire management of the farm, paid the taxes, hired the help and paid them with money got from the sales of the products of the farm.

So much of the will as becomes necessary to consider upon this appeal is as follows: “Third. I give and bequeath to Abram L. Salsbury, fifty-one acres of land situate in the town of Wilson, county of Niagara and State of New York, and known and distinguished as a part of lot number fifty-eight, to have and te hold the same during the natural life of my son William H. Salsbury, in trust, for the benefit of my said son William BL Salsbury, or for the benefit of his family, subject, however, to the following conditions, to wit: If the said Abram L. Salsbury and my son Guy M. Salsbury, Jr., think it would be for the best good of the said William H. Salsbury or his family, they two may let the said William BE. Salsbury occupy said parcel of land free of rental, or otherwise, as they two may agree. But they shall not, in any case, grant the occupancy of said parcel of land to the said William IB Salsbury for more than one year at a time. Said parcel of land cannot be let or rented only by the agreement of the said Abram L. Salsbury and my son G-uy M. Salsbury, Jr., or their chosen successors. The said Abram L. Salsbury and my son Guy DJ. Salsbury, Jr., can let the aforesaid parcel of land to other parties than the said William H. Salsbury, or they may sell and transfer the same, and they are hereby empowered to sell and transfer the same and reinvest the purchase-money received therefor, or put the purchase-money on interest. If the said parcel of land should be sold, the money received therefor must either be put upon interest and kept inviolate or reinvested in real estate. The said Abram L. ■Salsbury and my son Guy M. Salsbury, Jr., may appropriate the interest upon the money held in trust by the said Abram L. Salsbury, or the use or income of any real estate held in trust by said Abram L. Salsbury, for the benefit of the said William H. Salsbury, or his family, to either his or their benefit.” It will be observed that the testator has attempted to create in Abram L. Salsjmry a trust estate, and that this trust is made for the benefit of William H. Salsbury, the plaintiff in this action, and his family. That it then provides that the trustee, with the consent of G-uy M. Salsbury, Jr., may let William JEL Salsbury occupy the land, rent free, but for not more than one year at a time. And under this provision of the will, William IT. Salsbury entered into the possession of the premises shortly after the will was admitted to probate, and has ever since continued to occupy the same, with the consent of Abram L. Salsbury and Guy M. Salsbury, Jr.

A serious question is here presented in reference to the estate or interest of the trustee. Section 55 of the Statute of Uses and Trusts (1 R. S., 728) provides that ■“ express trusts may be created for any or either of the following purposes: * * * 3. To receive the rents and profits of lands and apply them to the use of any person during the life of such person, or for any shorter term, subject to the rules prescribed in the first article of this title.”

In order to receive the rents, issues and profits, the trustee must be entitled to the possession, and to control and manage the property.

Section 58 (p. 729) provides that “ where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate shall vest in the trustee,” etc.

If, therefore, the trust attempted to be created is not one provided for by the statute, the interest of the trustee in the property falla ■and no estate vests in him. The statute further provides (sec. 47, p. 727), that every person who by virtue of any grant, assignment or devise, now is or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof in law or in equity, shall be deemed to have a legal estate therein of the same quality and duration, subject to the same conditions as his beneficial interest.”

Section 48. “ The last preceding section shall not divest the estate •of any trustees in any existing trust where the title of such trustees is not merely nominal, but is connected with some power of actual disposition or management in relation to the lands which are the subject of the trust.”

Section 49. “ Every disposition of lands, whether by deed or •devise, hereafter made, shall be directly to the person in whom the right of possession and profits shall be intended to be invested, and' not to any other, to the use of or in trust for such person, and if made to one or more persons to the use of or in trust for another, no estate or interest, legal or equitable, shall vest in the trustee.”

Under the provisions of the will, "William H. Salshury, on procuring the consent of the trustee and his brother Gruy M. Salsbury, was entitled to the actual possession of the lands and the receipt of the rents and profits thereof from year to year. If the will had ■dispensed with the necessity of procuring the consent of the trustee and Gfuy k£. Salsbury, he would be brought directly within the provisions of section 47 of the statute, in which he would be deemed to have a legal estate from year to year, or during life, dependent upon the conditions embraced in the will. This, however, would not divest the trustee of his estate, if connected with some power of disposition or management. If, however, the trust was merely nominal, it would divest his estate. Under section 49 the devise must be directly to the person in whom the right of possession and profits shall be invested, and not to any other, for the use of or in trust of such person, and if it is so made to another person to the use of or trust for another, the trustee takes no estate whatever. It becomes absolutely void, so that the right of the trustee to the possession and to receive the profits becomes an essential and necessary element, in order to constitute a valid trust under the statute.

Perry on Trusts, section 304, very forcibly expresses the rule that “ in order to create a trust, it is necessary to prevent the legal estate from vesting in the cestui que trust, and it is necessary that not only the legal title but the primary use, should vest in the-trustee.”

It was to prevent the vesting of the legal estate in a trustee with the use and occupancy in another that these statutes were enacted. Our statutes on uses and trusts are in the main copied from .the-statutes of Henry YIII, which became the law of England as early as the year 1535. Previous to this, a large portion of the land in England was held to uses. The legal tide was in one person, but upon the trust and confidence that such person would apply it to-the use of some person named, or that such legal owner would permit some other person to have the possession, use and income of the estate. In this way estates could effectually be kept from the hands of creditors. It was to remedy these abuses that the-statute of uses was enacted.

"We have thus shown that the testator could not create a trust estate by giving the tide to Abram L. Salsbury, and the use and occupancy of the lands to William H. Salsbury; that such trusts are passive and merely nominal, and are not authorized by the statute. It only remains to be determined whether the provisions of the will requiring the consent of Abram and Guy M. Salsbury change the rule in this regard.

Upon this precise question we have been unable to find any authority which appears in point. My own impression is to the effect that it does not change the character of the estate. After the consent is procured, the trustee does not appear to have any power or control over the lands during the occupancy of William H. Salsbury. No judgment or discretion appears to be given to him in reference to its control and management during such occupancy. The duties of his trust become merely nominal, and during the year-then ensuing William H. Salsbury takes an estate for that time as absolutely as if it was given to him by the express provisions of the will. If I am correct in this view it follows that the products of the farm are absolutely his, and that they are not the products of or the proceeds from a trust estate.

Again, in order to be within the provisions of the statute relieved from liability to seizure and sale upon execution, the property must Wholly proceed from a person other than the debtor, and must be held in trust for him. In this ease the wheat in question was in part the products of his own skill and labor. Certainly so much of it as was the product of his own exertions would not be clothed with any trust. It is a familiar rule that property exempt from levy and sale on execution only remains so, so long as it maintains its identity and is kept intact. A horse, under certain circumstances, may be exempt, but, if sold and the proceeds taken and invested in watches, they would not be exempt.

Again, the wheat in question is not exempt under sections 1390 and 1391 of the Code.

Under section 1390 all necessary meat, fish, flour and vegetables actually provided for family use are exempt. Wheat is not flour within the meaning of the section. The $250 clause in section 1391 has reference to necessary household furniture, working tools and team, professional instruments, furniture and library.

The judgment of the County Court and that of the Justices’ Court should be reversed.

Barker, Bradley and Corlett, JJ., concurred upon the last two grounds stated in the opinion.

Judgment of the County Court and that of the Justices’ Court reversed.


author: Haight, J.;

text:
    GEORGE BRISBANE, Respondent, v. BANK OF BATAVIA, Appellant.

      Justices’ Court — when an action does not involve the accounts of the parties, within section 2863 of the Code of Civil Procedure.

    In this action, brought in a Justice’s Court to recover the sum of twenty-five dollars, alleged to be due to the plaintiff from the defendant bank, being a balance of deposits made by him with it, the defenses were, a general denial, a settlement and payment. Upon the trial the plaintiff testified to having made deposits amounting to $6,128.50, and to having drawn and received back checks amounting to $5,351.01; but admitted that he had drawn checks, which had been returned to him, for all the money he had deposited except twenty-five dollars, which amount had been paid by the defendant upon a check, which the plaintiff claimed he had not drawn. Upon the defendant’s motion, the justice dismissed the complaint upon the ground that the sum total of the accounts of both paities exceeded the sum of $400.

      jMeld, that this was error.

      <GiUlland v. Campbell (18 How., 177); Stilwell v. Staples (3 Abb. Pr., 365); Glaekin v. Zeller (52 Barb., 147), distinguished.
    Appeal from a judgment of the County Court of Genesee county, reversing a judgment of a Justice’s Court in that county in favor of the defendant.

      George Bowen, for the appellant.

      William Tyrrell, for the respondent.
   Haight, J.;

This action was brought to recover the sum of twenty-five dollar's, balance alleged to be due the plaintiff upon deposits made in the defendant’s bank. The answer was a general denial, settlement and payment in full. Upon the trial the plaintiff testified to having made deposits in various sums with the defendant, amounting in the aggregate to $6,128.50. He also testified to the drawing of checks on the bank in various items, amounting to $5,351.01, but admits in his testimony that he has drawn and that the bank has returned checks to him for the whole fund deposited except the sum of twenty-five dollars; that it has charged to him, November 11, 1877, a check for twenty-five dollars, and that he did not draw that check. When the plaintiff rested, the defendant’s attorney moved ¡to dismiss the cause on the ground that the accounts of both parties proved on the trial exceeded the sum of $100, and that the justice did not have jurisdiction of the case. The motion was granted and judgment entered against the plaintiff for the costs of the action. It was from this judgment that an appeal was taken to the County Court, and from the judgment entered in that court reversing the judgment of the justice, an appeal was taken to this court.

The only question to be determined upon this appeal is whether or ¡not the evidence given upon the trial makes an account between the parties within the meaning of section 2863 of the Code. The provision is as follows: “A justice of the peace cannot take cognizance of a civil action in either of the following cases: * * * Fourth. Where, in a matter of account, the sum total of the accounts of both parties proved to the satisfaction of the justice exceeds four hundred dollars.” The amount deposited in the bank, as ■well as the checks drawn upon and paid by the bank, largely ■exceeds the sum of $100. If, therefore, these items are to be considered accounts and necessary to be proved upon the trial of this action the justice would not have jurisdiction. But these items we do not understand to constitute an account between the parties. When a check drawn upon the fund was presented at the bank and paid, it extinguished pro tanto so much of the demand as was paid, and only the balance remaining unpaid becomes an account between the parties, and that amount alone can be taken into consideration in determining the question of jurisdiction. In this case the plaintiff conceded that the whole sum had been paid except the single item of twenty-five dollars. That item then became the only amount that can be considered upon the question of jurisdiction. Consequently the justice had jurisdiction of the action and it was his duty to have proceeded with the trial. This question has recently received consideration in the Third Department in the case of Burdick v. Hale (reported in 17th Weekly Digest, 279), wherein this doctrine has been expressly held. To the same effect are the cases of Fuller v. Conde (17 N. Y., 89-92); Steele v. Macdonald (4 N. Y. Civil Pro. R., 227); Crim v. Cronkhite (15 How., 250); Lund v. Broadhead (41 id., 116); Hoodless v. Brundage (8 id., 263); Ward v. Ingraham (1 E. D. Smith, 538); Matteson v. Bloomfield (10 Wend., 555; see note on page 557).

The case of Gilliland v. Campbell (18 How., 177) is clearly distinguishable. The action in that case was brought upon a promissory note for $186, which note was given upon the settlement of the copartnership accounts of the parties. The defense interposed was that a mistake in fact had been made as to the amount due the plaintiff when the note was given. The trial in that case involved the trial of the mutual accounts between the parties, ■amounting to upwards of $2,000.

The ease of Stilwell v. Staples (3 Abb. Pr., 365) is also distinguishable, for in that case the contested demands of the respective parties exceeded the sum of $100.

The case of Glackin v. Zeller (52 Barb., 147) is not in conflict with the authorities before referred to. On the contrary, it exjiressly recognizes the piinciple that a payment upon an account extinguishes the account in the amount of the payment made. Potter, J., in delivering the opinion of the court in that case, says : It is doubtless true that in an action to recover a balance of' accounts, or upon an account stated or undisputed, payments made and applied do extinguish the account to the amount of the sums so paid.”

It therefore follows that the accounts of the plaintiff, by payments conceded to have been máde, were extinguished down to the amount of twenty-five dollars; that the only question to be litigated between the parties was the question as to the payment of that sum on the 11th day of November, 1877, upon a check claimed to have been drawn by the plaintiff. Of this the justice had jurisdiction.

The judgment of the County Court should be affirmed.

Barker and Bradley, JJ., concurred; Corlett, J., not sitting-

judgment of the County Court affirmed.


author: Haight, J.:

text:
    JOSEPHINE MYERS, Respondent, v. GEORGE S. RILEY, Appellant.

      Appeal from, an order of a County Court denying a new trial — when the County' Court may grant or refuse a new trial, in its discretion — its decision is notreniewdble at General Term.

    An order of a County Court, denying a motion for a new trial upon the ground' of surprise- and newly discovered evidence, is addressed to the discretion of that court, and is not reviewable upon appeal by the General Term of the Supreme Court.
    The Supreme Court has no power to review the exercise by the County Court of a discretionary power vested in the latter court.
    Appeal from a judgment, entered upon a verdict of the Monroe County Court, and from an order denying a motion for a new trial, made on the ground of surprise and newly discovered evidence. ■

      F. L. J. F. Durand, for the appellant.

      Thomas Raines, for the respondent.
   Haight, J.:

Tliis action was brought to recover damages for personal injuries •alleged to have been sustained by plaintiff in consequence of her stepping into a coal hole in a sidewalk in front of the defendant’s premises, in the city of Rochester. The jury rendered a verdict in her favor for the sum of $1,000. The undisputed evidence shows that there was a hole in the sidewalk of about the size of an ordinary pail; that it was covered with an iron cover; that it had become so worn that when the cover was upon the hole right side ■up, it would tip and turn over. The plaintiff, accompanied with her husband, about nine o’clock in the evening was walking along the sidewalk in question, when she stepped upon the cover, it turned and let her leg down through the hole, causing the injury complained of. That the sidewalk was in a dangerous and unsafe eondition, and that it had been in such condition for a long time there appears to be no serious question, so that it would ajipear that the plaintiff was entitled to recover some amount. The main question litigated upon the trial was that the plaintiff was not injured to the extent claimed by her. She claimed that her hip was severely sprained; that a contraction of the muscles had taken place, causing severe pain and lameness, and that such lameness continued at the time of the trial. Several witnesses were produced on the part of the defendant who testified to having seen her walk •after the injury, and that they discovered no lameness. After the verdict and before the entry of judgment, the defendant moved for a new trial upon the ground of newly discovered evidence, and upon such motion read his own affidavit and that of thirteen other persons, most of whom swear that they have seen the plaintiff walk at different times; that she walked with a firm step and showed no indication of lameness. Affidavits were read in opposition to the motion, tending to corroborate and sustain the evidence given upon the trial. The County Court denied the motion, and judgment was entered upon the verdict. Upon the argument of this appeal the appellant did not claim that there was any error occurring upon the trial, so that the judgment should be reversed. The only point argued was that the County Court erred in not granting the motion for a new trial upon the ground of surprise and newly discovered evidence.

The first question presented is, whether or not this order isappealable. It is contended, on the part of the appellant, that the order is appealable under section 1342 of the Code; that it is an order affecting a substantial right. The section in question was, in-substance, copied from the Code of Procedure, and has often been a subject of judicial consideration. It appears to be established^ beyond question, that a motion for a new trial on the ground of newly discovered evidence and surprise is addressed to the discretion of the court. (Lawrence v. Ely, 38 N. Y., 42; Smith v. Platt, 96 id., 635, and authorities there cited.)

Section 190 of the Code, subdivision 2, provides that the Court of Appeals has power to review an order made in an action affecting a substantial right, and not resting in discretion, etc. So that orders resting purely in the discretion of another court cannot be reviewed by the Court of Appeals. This, however, is not the case with the General Term; and it has consequently been held that orders of the Special Term, although discretionary, may be reviewed by the General Term, for the reason that the General Term is a branch of the same court, and that the court may review its own orders. The County Court, however, is a separate and independent court, and it is a fundamental rule that each court has control over its own judgments.

In the case of Wavel v. Wiles (24 N. Y., 635), it was held that an application for a new trial, under section 366 of the Code of Procedure, is addressed purely to the favor and discretion of the court; the court may, in its discretion, set aside the judgment and grant a new trial; that the rule governing the review by one tribunal of the proceedings of another is that orders or decisions resting in discretion are not reviewable. In the case of Stebbins v. Cowles (30 Hun, 523) it was held that an order of the County Court referring an action in that court, upon the ground that the trial would involve the examination of a long account, was a discretionary order, and it appearing that there was a long account to be examined, the order could not be reviewed in this court, and this decision ‘was placed upon the ground that the decisions of one tribunal resting in discretion are not reviewable by another. The case of Bowen v. Widner (12 N. Y. Wk. Dig., 525) is a decision of the General Term of the late Fourth Department, and is to the effect that the General Term cannot review an order of tlie County Court granting a new trial upon the ground of newly discovered evidence. (See, also, Lawrence v. Ely, 38 N. Y., 42.)

The case of the assignment of Rider, etc. (23 Hun, 91), is distinguishable. That was a motion to set aside a sale made by an assignee for the benefit of creditors, on the ground that the price paid was insufficient, and that a better price could be obtained. The court held that the order in this case affected a substantial right j that it was not an order resting purely in discretion. The court, however, remarks that it is true that the General Term will not review certain orders which rest solely in discretion. It consequently appears to us that the order is not appealable. Such, at least, appears to be the decision in this department.

It is contended that if the discretion of the Special Term is to be reviewed upon motions of this character ; that the discretion of the County Courts should also be reviewed; that the County Courts are quite as liable to err as the Special Term Court. We confess that there is force in the argument, but we do not make the law. We must take it as we find it.

Although unnecessary, in view of the result which we have reached in reference to the orders being appealable, we have read the entire case and the affidavits of the newly discovered witnesses. The only effect that the newly discovered evidence could possibly have would be to reduce the verdict, and it might not effect that result. The new testimony would cover a later period of time than that embraced in the testimony of the witnesses given upon the trial; in all other respects, it would be of the same character. This we regard as cumulative, and consequently not bringing the appellant within the rale recognized by the courts in which new trials are granted.

The order and judgment should be affirmed.

Barker, Bradley and Oorlett, JJ., concurred.

So ordered.