text:
    JOSEPH FARLEY, Jr., and Others, Appellants, v. ABRAM CARPENTER, Respondent, Impleaded, etc.

      Sh'audulent conveyance — aciual knowledge of fraudulent intent must be shown in the case of a purchase for a valuable consideration.

    The title of one purchasing land for a valuable consideration from an insolvent debtor cannot be avoided by the creditors of the latter, unless it be shown that the purchaser had actual notice of the debtor’s fraudulent intent. It is not sufficient to show that lie had constructive notice thereof.

      Eteae'ns v. Gage (79 N. Y., 102) followed. »
    Appeal from a judgment, entered in Onondaga county, upon the repott of a referee.dismissing the plaintiffs’ complaint.

      J. K. ITopJcins, for the appellants.

      Zonsing <& Zyymam,, for the respondent.
   Haight, J.:

This action was brought to set aside a conveyance of'real estate made by the defendant Charles Carpenter, to the defendant Abram Carpenter, on the ground that the same was made witli intent to hinder, defraud and delay the plaintiffs, who were judgment creditors of the defendant Charles Carpenter. The referee found as a fact, that the conveyance was made by Charles Carpenter, with the intent on his part to hinder, delay and defraud his creditors, including the plaintiffs, and that he thereafter left the State with like intent. The referee also found, that the defendant, Abram Carpenter, purchased the land in question and paid full consideration therefor, without knowledge or notice of the fraudulent intent of the defendant, Charles Carpenter; and as a conclusion of law found that the conveyance was valid and free from fraud, and that the complaint should be dismissed.

The appellants’ attorney submitted to the referee numerous requests to find, as to the facts and conclusions of law. The referee has omitted to note in the margin the manner in which each proposition has been disposed of by him. In the report, however, he does find upon all of the questions necessarily involved in the case. His omission to note his finding upon these propositions does not affect the validity of his report. (Code of Civil Pro., § 1023.) The whole case turns upon his finding of fact, that the defendant, Abram Carpenter, purchased without knowledge or notice of the fraudulent intent of the defendant, Charles Carpenter, and to the conclusion of law based upon such finding of fact. To these findings exceptions were filed, and [they bring up for review the evidence bearing upon this branch of the case. As to the other questions of fact found by the referee, there is substantially no dispute.

The defendant Charles Carpenter is a brother of the defendant Abram Carpenter. The evidence upon which the appellant chiefly relies to establish knowledge of the fraudulent intent on the part of Charles Carpenter, is the testimony of Abram Carpenter, taken in an examination had before a referee in supplementary proceedings, which was read upon the trial of this action. Among other things he testified: “ I did not know at that time (meaning the time that the conveyance was made) that he owed anything aside from me; thought something up, from the way lie talked ; he asked me to deed this house and lot to his wife; Wednesday went to his house; he sent for me; he wanted to sell me his farm ; I said, ‘ what is up ? ’ he said, you need not ask any questions nor say anything for two or three days ; if I don’t sell this to you I shall to some one else; ’ and I did not; what was up didn’t know; but thought there was something; he was always a square fellow before this ; supposed he was at this time.” Further on he testified that he did not suppose he was hard up; only supposed he wanted some money ; that he purchased the property in good faith, and had not any intent to defraud any of the creditors of Charles Carpenter; that he did not know that his brother was going to leave the State; that he believed that he paid all the land was worth; that he has lived on and worked the farm since he got the deed; that he supposed Charles was trying to make some other shift, and that he did not wish anything said about it until he had closed the bargain. This is, in substance, the evidence bearing upon the question of notice, from which, together with the fact that he paid full value for the land, the referee has found that the conveyance was taken by Abram without knowledge of the fraudulent intent oí Charles. This finding, we think, ought not to be disturbed. Abram testified that Charles had always been a square fellow Defore this; that he supposed he was at this time. He was his brother. It was but natural that one brother should place confidence in another, unless previous conduct had been of such a character as to forfeit such confidence. Whilst Abram had reason to suppose that something was up, by reason of the manner in which he was approached and asked to purchase the farm, still it does not necessarily follow that he should infer that his brother was designing to cheat and defraud his creditors and flee from the State.

The other question which we are called upon to consider pertains to the conclusion of law based upon this finding of fact. The appellant contends that actual notice of the fraudulent intent is not necessary; that constructive notice is sufficient; that the manner in which Charles approached Abram to sell him the farm, and the conversation that took place between them on that occasion, was sufficient to have put Abram upon inquiry as to the fraudulent intent.

This question appears to have been decided by the Court of Appeals in. the case of Stearns v. Gage (reported in 79 N. Y., 102-107). It was held in that case that constructive notice of the fraudulent intent of the grantor was not sufficient, that the party must have actual notice. This case was criticised by the appellant’s counsel upon the argument of this appeal, and we notice an article containing a like criticism published over his name in 23 Albany Law Journal, page 126. The decision appears to have been the unanimous decision of the judges of the court voting. It is squarely in point, and we should not feel at liberty to disregard it even though we had doubts in reference to its being correct. Section 1, title 3, chapter 7, part 2 of the Revised Statutes (2 R. S., 137), provides: “ Every conveyance or assignment; in writing or otherwise, of any estate or interest in lands, * * * made with the intent to-hinder, delay or defraud creditors, * * * as against the persons so hindered, delayed or defrauded, shall be void.” Section L “ The question of fraudulent intent in all cases arising under the provisions of this chapter shall be deemed a question of fact and not of law.” Section o. “ The provisions of this chapter shall not be construed, in any manner, to affect or impair the title of a purchaser for a valuable consideration unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor.”

The question is, does the statute by the phrase “p?'evious notice of the fraudulent intent” mean actual or constructive notice. Actual notice is a knowledge of the fact and may be established by direct or circumstantial evidence. Constructive notice is a knowledge of circumstances which would put a careful and prudent person upon inquiry, or such acts as the law will presume the person had knowledge of, on the grounds of public policy; as, for instance, the laws and public acts of the government, instruments recorded pursuant to law, advertisements in a newspaper of a notice or process authorized by statute.

A person may be chargeable with constructive notice and still have no actual notice. Fraud implies an evil or illegal intent. Such intent can only exist in case of knowledge. Under this statute, fraud is not a question of negligence, it is a question of knowledge and intent; a party may be negligent in not examining the records for liens and incumbrances on real estate before purchase, and still be strictly honest, and innocent of fraud.

The appellant’s counsel contends that this decision is in conflict with numerous other decisions in the Court of Appeals, and he cites the eases of Williamson v. Brown (15 N. Y., 354); Baker v. Bliss (39 id., 70); Reed v. Gannon (50 id., 345); Bennett v. Buchan (76 id., 386). Neither of these cases bear upon the question. Neither of them was brought under the provisions of this statute. In neither of those eases was fraud alleged or claimed to exist on the part of the persons held to be chargeable with constructive notice. There are many cases in which a person purchasing real estate is chargeable with constructive notice of the existence of liens, incumbrances, and so on ; but our attention has not been called to a single case in the Court of Appeals, brought under this statute, where fraud is charged as the gravamen of this action, in which it has been held that there can be a recovery against the grantee, without actual notice of the fraudulent, intent of his grantor.

The judgment should be affirmed, with costs.

Smith, P. J., and Hardin, J., concur in the result, on the ground that this court is bound to follow the rule laid down in the Court of Appeals in Stearns v. Gage (supra); that the proof of actual notice to the vendee of the fraudulent iutent of the vendor is requisite in order to avoid a conveyance for fraud as against the creditors, where a valuable consideration has been paid.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Hai&ht, J.:

license: Public Domain

text:
    DAVID TRIMMER, Plaintiff, v. JOHN HISCOCK, Defendant.

      Slander against hotel-lceeper— what words are actionable per se — Answer — the defendant cannot dispute facts admitted by it.

    The defendant alleged that the plaintiff, who was keeping a hotel, "kept no accommodaiions, and a person could not get a decent meal or decent bed if he tried.”

      Held, that the words were actionable per se.

    The defendant admitted in his answer that the plaintiff was the keeper of a public inn or hotel, which he kept for profit and to enable him to support himself and his family.

      Held, that he was concluded by his answer from claiming upon the trial that the action could not be maintained because the plaintiff had failed to procure a license to keep a hotel as provided by chapter 419 of 1877.
    Exceptions ordered to be heard at thé General Term in the first instance, after a nonsuit granted at the Monroe Circuit.

      George E. Ripson, for the plaintiff.

      John M. Davy, for the defendant.
   Hai&ht, J.:

This action was brought to recover damages alleged to have been sustained by the plaintiff, by reason of the speaking by the defendant of certain false and scandalous words of and concerning the plaintiff personally and of his business as a hotel keeper. Upon the trial an attempt-was made to prove special damages. The evi- . dence tended to show that since about the time that the alleged slanders were uttered, there was a falling off in his business as a hotel keeper. This, however, was fully accounted- for by the plaintiff’s own witnesses, who testified that at about that time-there was a Good Templars’ organization effected in his village, and that many of his old customers and patrons had -joined that organization and ceased to frequent his house; that at about that time_ numerous prosecutions were instituted against him for violating the excise law; and that it was owing to this organization and these prosecutions that there was a falling off in the plaintiff’s business. The witnesses produced by the plaintiff, and wlio testified- to having heard the slanderous words spoken, stated that it made no difference with them as to their patronizing the plaintiff’s house. In the absence of evidence of special damages it becomes necessary to determine whether the words spoken were actionable per se. The general rule is that slanderous words are not actionable when spoken concerning a person unless the charge, if true, will subject the party to an indictment for a crime involving moral turpitude, or subject him to punishment for an infamous crime, or' unless the words spoken tend to prejudice one in his office, profession, trade or business. (Folkard’s Starkey on Slander and Libel, §§ 88,102; Burtch v. Nickerson, 17 Johns., 217; Fitzgerald v. Redfield, 51 Barb., 484; Ireland v. MeGarvish, 1 Sandf., 155.)

It is not contended that any of the slanderous words spoken, charge the plaintiff with the commission of a crimé, and as to those spoken of himself, they are not actionable per se. It is only those alleged to have been uttered concerning his business, which can be claimed to be within the rule as actionable.

Most of the words alleged in the complaint, which were proved upon the trial to have been uttered, have reference to the plaintiff’s character and conduct. The only words alleged in the complaint and proven, which have reference to his business, appear in the testimony of his son, and are as follows: “ He kept no accommodations, and a person could not get a decent meal or decent bed if he tried.” These words, to some extent, reflect upon the plaintiff’s business, and may tend to prejudice him in his employment of keeping a hotel. We are inclined to the opinion that they are within the rule of words spoken of and concerning one’s business, which are actionable per se.

It was claimed on the argument on the part of the respondent that the action could not be maintained, for the reason that the plaintiff had not procured a license to keep a hotel, under chapter 419 of the Laws of 1877. The defendant’s answer, however, admits that the plaintiff was and is the keeper of a public inn or Hotel, and. that he kept the said inn for profit and to enable him to obtain a livelihood for himself and family, as alleged in the complaint.

We are of the opinion that the defendant is concluded by this answer from raising that question.

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

Smith, P. J., and Hardin, J., concurred.

;So ordered.


author: Haight, J.:

text:
    MARY J. BURNETT, Appellant, v. JANE GOULD, Respondent.

      Reference of a disputed claim — fhestatute mustie strictly followed — 3 R. 8. (6thed.), 96, 97, secs. 47, 48 — A creditor’s action will not lie until a judgment lias leen procured.

    The provisions of the Revised Statutes (3 R. S. [6th ed.], 96, 97, §§ 47, 48) providing for the reference of disputed claims against the estate of a deceased person must be fully and strictly complied with. If any of the proceedings thereby required be not taken the judgment entered upon the report of the referee will be void.
    A creditor’s debt must be ascertained and determined by a judgment before he can proceed in equity to collect the same from the equitable assets of the debtor.
    Appeal from a judgment, entered in Monroe county at an equity term of this court in favor of the defendant.

      Martin W. Cooke, for the appellant.

      D. B. Beach, for the respondent.
   Haight, J.:

This action was brought to set aside a deed of lands in Monroe county, made by one Asa Bass to the defendant, upon the ground that the conveyance was made to hinder, delay and defraud the existing creditors of the grantor. Asa Bass, the grantor, died in September, 1872. The plaintiff claims to have recovered a judgment against the executor of the deceased for $721.48, and that Isaac Burnett recovered a judgment against the same executor for $1,104.47, and that such judgment was assigned to her. To sustain her action she offered these judgments in evidence. They were .objected to and ruled out by tlie court. It appears from the evidence in the case that the claims of the plaintiff and of Isaac Burnett were presented ,to the executor to be allowed; that the executor disputed the claims, and that thereupon an agreement was made and entered into in writing between the executor and li. Sargeant, as attorney for Mary J. Burnett and Isaac Burnett, by which they agreed to refer the claims to George W. Rawson, Esq., to hear, try and determine; that such agreement was approved by the surrogate of Monroe county on the 1st day of October, 1872. A careful search of the clerk’s office of such county fails to disclose the fact that the original agreement was ever filed. Copies, however, appear attached to the judgment roll. Mr. Sargeant testifies that according to his recollection he filed the original agreement in the clerk’s office. It further appears that no order was entered in the case of Mary J. Burnett upon such agreement, referring her claim to said Rawson. It also appears that no order was entered upon such agreement, referring the claim of Isaac Burnett to said Rawson prior to the 17th day of May, 1875. The referee made and filed his report in the office of the clerk on the 23d of April, 1875, in the case of Isaac Burnett, and on the 25th day of January, 1875, in the case of Mary J. Burnett. Judgments were entered upon the reports of the referee so filed without the report ever having been confirmed or judgment ordered thereon by the court.

The first question to be considered is, whether or not these judgments are valid judgments.' The statute provides that: If the executor or administrator doubt the justice of any claim so presented, he may enter into an agreement, in writing with the claimant, to refer the matter in controversy to three disinterested persons, or to a disinterested person, to be approved by the surrogate; and upon filing such agreement and approval of the surrogate in the office of a clerk of a Supreme Court, in' the county in which the parties, or either of them, reside, a rule shall be entered by such clerk, either in vacation or in term, referring the matter in controversy to the person or persons so selected. The referees shall thereupon proceed to hear and determine the matter and make their report thereon to the court in which the rule for their appointment shall have been entered. * * * The court may confirm such report and adjudge costs, as in actions against executors, and the judgment of the court thereupon shall be valid and effectual in all respects as if the same had been rendered in a suit commenced by the ordinary process.” (3 R. S. [6th ed.], 96, 97, §§ 47, 48.)

The provisions of this statute must be fully complied with in order to render the judgments valid. It requires:

First. An agreement in writing on the part of the claimant and the executors or administrators of the deceased, that the matter in controversy be referred. It requires that such agreement be approved by the surrogate of- the county. The agreement must be filed in the office of the cleric of the county, who must thereupon enter an order or rule of the court, referring it to the referee or referees agreed upon. The court only obtains jurisdiction by the filing of the contract and entering the order of reference. The referee appointed, after the taking of the evidence submitted by the respective parties, must make his report to the court, and before judgment can be entered, the report must be confirmed by the court, and judgment ordered thereon. None of these provisions of the statute can be dispensed with. If it should be found as a fact that the original agreement was in fact filed, the court would still be without jurisdiction as to the claim of IVIary J. Burnett; for in her case no order of reference was entered; and if it should be conceded that the court had acquired jurisdiction through the filing of the agreement, and the entering of the order of reference in each case, still these judgments would be void, for the reason that the referee’s report has never been confirmed, or judgment ordered by the court. (Robert v. Ditmas, 7 Wend., 522, 525; Comstock v. Olmstead, 6 How. Pr., 77; Tracy v. Suydam, 30 Barb., 110, 116; Bucklin v. Chapin, 1 Lans., 443; Coe v. Coe, 37 Barb., 232.)

The appellant upon the trial sought to'introduce evidence proving her claims against the estate of the deceased, and then to recover as creditor, without having her claims first prosecuted to judgment. Under the authority of Bucklin v. Chapin (35 How., 155), this evidence was excluded by the court, and, we think, properly. It has been repeatedly held that the creditor’s debt must be ascertained and determined by a judgment, before the creditor can proceed in equity for the collection of the debt out of assets liable only in equity. (Estes v. Wilcox, 67 N. Y., 264; Adee v. Bigler, 81 id., 349; Geery v. Geery, 63 id., 252; Southard v. Benner, 72 id., 424.)

The judgment should be affirmed, with costs.

Smith, P. J., and Hardin, J., concurred.

Judgments affirmed, with costs.


author: Hardin, J.:

text:
    EDMUND B. HYDE and Others, Respondents, v. GEORGE SALG, Appellant.

      Action upon a written instrument for the payment of money only— verification of the complaint by the plaintiffs’ attorney — when it is sufficient — Code of Girnl Procedure, sec. 525.
    In an action by tbe drawers of a draft against the acceptor thereof, the com plaint was verified by one of the plaintiffs’ attorneys. At the end of the verification, which was in the usual form, were added these words: “That said action is founded upon a written instrument for the payment of money only now in deponent’s possession for collection, which said instrument is the source of deponent’s information and belief.”

      Held, that the verification.was sufficient; that it was not necessary that it should state why the verification was made by the attorney instead of the party.
    Appeal from an order of the Special Term of Onondaga county, denying a motion to set aside a judgment, entered for want of an answer.
    The defendant served an answer and the plaintiffs returned it because it was not verified. The defendant claimed that the verification of the complaint was defective, and that therefore an unverified answer could be served. The two defects relied upon by the defendant were, viz.: 1st. That the affidavit of verification did not state some reason “ why the affidavit of verification was not made by the party.” 2d. “ That the affidavit did not state the grounds of the deponent’s belief and knowledge.”
    The action was upon a draft drawn by the plaintiffs on, and accepted in wilting by the defendant. The verification was as follows: ’
    “ William G. Tracy, being duly sworn, says that he is one of the attorneys for the plaintiffs in the above entitled action, and that the within complaint is true to his knowledge, except as to those matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. That said action is founded upon a written instrument for the payment of money only now in deponent’s possession for collection, which said instrument is the source of deponent’s information and belief.
    “W. G.' TRACY.”
    Sworn and subscribed before me, ) the 4th day of January, 1872. Í
    G. W-. Wisher,

      Notary Public, Onondaga Oounty.

      Kennedy <& Tracy, for the respondents.

      S. I. Billington, for the appellant.
   Hardin, J.:

Section 525 of the Code of Civil Procedure expressly enacts as to verification: “ Wheré the action or defense is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney.”

1. Mr. Tracy’s affidavit states (1) that he is one of the attorneys of the plaintiffs, and (2) that the action is founded upon a written instrument for the payment of money only, now in (his) deponent’s possession for collection, which said instrument, is the source of deponent’s information and belief.

If the affidavits had used the words, “ the ground of his belief,” instead of the “ source of deponent’s information and belief,” it would have been in the exact language of section 526, of the Code of Civil Procedure. However, it was in substantial compliance with the requirement of that section in that regard. The criticism made by the appellant, that the affidavit is wanting in “ the reason why it is not made by the party ” is unsound. The provision of section 525, we have quoted, allows the verification to be made by an attorney when the action is founded upon a written instrument for the payment of money, which is in the possession of the attorney, and those facts when stated constitute the reason why the attorney verifies.

If otherwise, those facts appear, he is by the statute authorized to verify, and we cannot see any more beneficial compliance with the statute to be gained by requiring the attorney to state as a reason why he verifies, that the facts he has stated authorize him to verify. He has, by the statement of those facts, brought, his case within the provision of the statute; and therefore, he has shown the reason why ” the verification is not made by the party. (See Ross v. Longmuir, 24 How., 49; Smith v. Rosenthall, 11 id., 442; lefevre v. Latson, 5 Sandf., 650; Wheeler v. Chesley, 14 Abb., 441; Gourney v. Wersuland, 3 Duer, 613.) The point decided in Kirkland v. Aiken (66 Barb., 211), has no bearing upon the questions presented by this appeal. The notice accompanying the' return of the defendant’s answer was sufficiently definite. (Snarpe v. Gilbert, 13 Hun, 495.) The order should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., and Haight, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: HakdiN, J.:

text:
    _ HENRY J. THIEM, Appellant, v. JANE MADDEN and Others, Respondents.

      Costs — the defendant is entitled to costs where the court has jurisdiction oner the parties, hut none over the subject of the action.

    Where in an action brought in a County Court it is decided that although the court has jurisdiction over the parties, it has none over the subject of the action, the defendant may have the costs taxed in his favor.
    Appeal from an order of the County Court of Monroe county, denying a motion by plaintiffs to set aside the taxation of costs and vacate a judgment in favor of defendants for costs, entered on an order of the said court, dismissing the plaintiff’s complaint on the ground that the court had not jurisdiction of the subject-matter of the action.
    The action was brought in the County Court of Monroe county, to recover the possession of a piece of land situate in the city of Rochester.

      The defendants answered denying the complaint, setting up the defense of the statute of limitations and adverse possession.
    On the trial in the County Court, the jury was directed to find a verdict for the defendants, on the ground that they had acquired a title to the premises in question by adverse possession, and the jury found accordingly. The question of jurisdiction was not raised. The plaintiff moved for a new trial on the judge’s minutes, and the court denied the motion, without costs, on the ground that the court had no jurisdiction of the subject of the action.
    The defendants’ attorney entered judgment for costs; plaintiff’s • counsel moved to vacate the judgment and allowance of costs, on the ground that the court not having jurisdiction of the subject-matter, and defendant’s counsel not having raised the question of jurisdiction by demurrer, or otherwise, costs were not recoverable.

      W. E. Edmonds and II. D. Tucker, for the appellant.

      John M. Demy, for the respondents.
   HakdiN, J.:

Omission to demur does not waive the objection to the jurisdiction of the court. Such an objection may be raised at any time during the trial. (Code of Civil Procedure, § 499; Code, § 148; Burnham v. De Bevorse, 8 How., 159; Budd v. Bingham, 18 Barb., 494; Volarino v. Thompson, 3 Seld., 576; People v. Banker, 8 How. Pr., 258; Mosselman v. Caen, 1 Hun, 648; S. C., 21 How., 248; S. C., 34 Barb., 66; King v. Poole, 36 Barb., 247.)

Upon the trial of this action the County Court had “ power to decide the question of its own jurisdiction or its right to proceed,” and having made a decision to the effect that it had not jurisdiction, and that, therefore, judgment should go against the plaintiff and in favor of the defendants, the defendants upon entering such judgment, in virtue of the statute as to costs, were entitled to their costs and to enter the same in the judgment, and the County Court properly refused to vacate the judgment and properly allowed the same to stand, so that the defendants in virtue thereof, could collect their costs. (King v. Poole, 36 Barb., 242; Cumberland Coal Iron Co. v. Hoffman Steam Coal Co., 39 id., 16; Rugen v. Collins, 8 Hun, 384; Cregin v. Brooklyn Crosstown R.R. Co., 19 id., 349 ; Humiston v. Ballard, 63 Barb., 11.) King v. Poole (supra), contains a sufficient criticism of Gormly v. McIntosh (22 Barb., 271), and Malone v. Clark (2 Hill, 658), to excuse ns from further comment upon the statements found in them.

¥e are satisfied that the weight of authority accords with the decision made below.

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

Smith, P. J., and Haight, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: HARDIN, S.:

text:
    CHARLES C. SNYDER, Respondent, v. GRIFFITH T. HUGHES, Appellant.

      Costs — when the defendant is entitled to them upon a successful appeal to the Oounty Court from a justice’s jtidgment.

    The plaintiff having recovered a judgment for nine dollars and eight cents in a Justices’ Court, the defendant appealed therefrom to the County Court, where a verdict was rendered in his favor; no offer was made hy the plaintiff as provided for in section 3070 of the Code of Civil Procedure.

      Held, that the defendant was entitled to have the costs taxed in his favor.
    Appeal from an order made by the County Court of Oneida county, denying a motion to set aside a judgment for costs entered herein.
    The plaintiff recovered a judgment for nine dollars and eight cents in a Justices’ Court.
    The defendant appealed to the County Court, where a verdict was rendered in his favor.
    The plaintiff taxed costs in his favor and entered a judgment therefor. The defendant then moved to strike them out, and his motion was denied.

      Melville & Melville, for the appellant.

      C. Q- Snyder and B. 0. Jones, for the respondent.
   HARDIN, S.:

“After an expiration of ten days from the time- of filing the justice’s return, the action is deemed an action at issue in the appellate court.” (Sec. 3071 of Code of Civ. Pro.) It was an action not specified in section 2863. It was an action in which the demand was for a sum of money only, and therefore fell within the class named in subdivision 4 of section 3228.

In the absence of any other provision the rule presented in section 3228 would entitle the defendant, upon succeeding in an action wholly, to recover his costs. But it is insisted that this case is taken out of such general rule by the language of section 3070. We must construe the several sections so as to harmonize them and give effect to all their provisions, as they relate to the same general subject, to wit, the recovery of costs in the county courts.

By section 3070 a special rule is laid down: (1) When the respondent serves an offer; (2) in case such an offer is accepted, a special provision is made as to the costs; (3) if an offer is not made and the verdict, report or decision upon the appeal is more favorable to the appellant by the sum of ten dollars than the verdict or decision in the court below; or if an offer is made and not accepted, and the verdict, report or decision upon the appeal is more favorable to the appellant by the sum of ten dollars than the amount of the offer,'the appellant is entitled to recover costs upon the appeal, otherwise the respondent is entitled to recover costs.” This provision was intended to apply to cases where, though there was a recovery against the appellant, he might recover costs if he succeeded in reducing the recovery against him ten dollars; (1) when there was no offer made, and (2) when an offer was made and not accepted, and a reduction of ten dollars was made; (3) In other cases, when there was a recovery against the appellant, the respondent is entitled to costs.

As this case does not fall within either of the exceptions to the general rule as to costs, it must be governed by the general rule to which we have referred. It follows, therefore, that as no recovery was had against the appellant, and the respondent was wholly defeated, the right of the appellant to costs, and the liability of the respondent to pay, are provided for by the general rule as to actions. (Secs. 3228, 3229.) The County Court improperly denied the motion. •

We must reverse its order, with ten dollars costs and disbursements, and grant the motion. As the question is new and somewhat involved by the notes made to section 3070, we think the motion should be granted, as it was denied, without costs.

. Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.

Smith, P. J., and Haight, ■!., concurred.

So ordered.


author: HaediN, J.:

text:
    JAMES E. GALLAGHER, Respondent, v. S. DUNCAN KARNS and OTHERS, APPELLANTS.

      Liens — for work rendered in “ torpedoing ” an oil well — 1880, chap. 440 — the proceeding prescribed by said statute, is an action — the court may appoint a receiver.

    In constructing and operating oil wells it is customary to explode torpedoes therein, for the purpose of increasing the flow of oil. The process does not produce oil, hut only serves to increase and quicken the flow thereof.

      Held, that one rendering services and pei'orming labor in “torpedoing” a completed oil well was entitled to a lien for the value thereof, under chapter 440 of 1880.
    The proceeding prescribed by that act for the enforcement and collection of the liens therein provided for, is an action, and the court has power, in a proper case, to appoint a receiver of the property during the pendency thereof.
    Appeal from the order of the Cattaraugus Special Term appointing a receiver “ of the oil wells and property mentioned in the notice and bill of particulars herein ” pendente Ute.

    One of the affidavits used upon the motion stated the “ torpedoing ” process as follows, viz.: “ That torpedoing is a process for increasing the how of oil in an oil well; that it does not produce oil, and is of no value unless there is oil in a sand rock when it is exploded; that it is a process resorted to at different times during the life of the well, but never until after the well is completed; that its object is to shatter up or make cracks in the oil-bearing rocks in order to increase tbe flow of oil; that it does not bring to the well oil that would not otherwise come, but it gets it there sooner than it would come if not resorted to.”
    Earns’ answer states that “the labor performed and materials furnished in torpedoing oil wells numbers one, two, three and four, as mentioned and set forth in the notice and bill of particulars herein, consisted in each case of the use of a torpedo constructed of a shell containing a powerful explosive substance, suspended in such oil well at or near the oil-bearing rock, for the purpose of increasing the productiveness of the well, with a superincumbent column of fluid to tamp the blast, and was exploded by means of a tap several hundred feet under such fluid tamping.”

      Johnson c& Ma/rhham, for the appellants.

      Phelps dk Eaton, foi the respondent.
   HaediN, J.:

Chapter 440 of the Laws of 1880 (3 R. S. [7th ed.], 2440) provides, viz.: Any person who shall hereafter perform any labor in or about the sinking, drilling or completing of any oil well, or any well sunk or drilled for oil or gas or other volatile or mineral substances within the State of New York, * * * shall on filing with the county clerk of the county in which the property is situated the notice prescribed by the next section of. this act home a lien for the value of such labor and materials upon such tank or other receptacle as aforesaid, and upon such well as aforesaid and appurtenances, and upon the lot, premises, parcel or farm of land upon which the same shall be situated to the extent of the right, title and interest of the owner of the property.” * * *

Section 2 provides for the filing -of a notice in the county clerk’s office of the county where the property is situated. Section 4 provides for serving notice of the claim upon the owner. Section 5 of the act provides for bringing “ an action in the Supreme Court in the county in which the property is situated * * * to enforce such lien. Which action shall be commenced and the proceedings therein conducted and judgment entered in the same manner and to the same effect as in actions brought in said courts to enforce liens provided by chapter 402 of the Laws of 1854, and the several acts amending the same; and the said courts shall have full power to adjust and enforce all the rights and equities between any or all of the parties to such actions, and enforce or protect the same by any of the remedies usual in said courts.” (1.) Torpedoing comes within the provisions of the act. (2.) Proofs made at the Special Term showed a compliance with the provisions of the act to the extent of creating a lien in favor of the plaintiff. (3.) Under the last part of section 5 the court may “ enforce ” the “ equities ” of the plaintiff by any of the remedies usual in the court. Liens and equities arising thereout are enforced in this court by the remedy reached through the instrumentality of a receiver, wherever and whenever such liens and equities are in danger and liable to fail without such instrumentality. (Code of Civil Pro., 713.)

Under section 5 of the act from which we have quoted, it must be assumed that the remedy to enforce the lien given by the act, is “ an action.” The section differs from the statutes under which the court held that the remedy to enforce a mechanic’s lien, in Sallaban v. Herbert (57 N. Y., 409), was a special proceeding. In the case in hand the court had power to appoint a receiver pendente lite. (Sec. 5, supra Webb v. Van Zandt (16 Abb. Pr., 314, in note); Poerschke v. Kedenburg (6 Abb. [N. S.], 177); (Gauhn v. Mills (2 Abb. N. C., 114.)

Facts were shown to the Special Term which called for its exercise of discretion as to the appointment of a receiver, and we are satisfied with the direction which the discretion took, and we therefore should affirm the order.

Smith, P. J., concurred; Haight, J., not sitting.

Order affirmed, with ten dollars costs and disbursments.


text:
    LEVI J. PEASE, Plaintiff, v. GEORGE F. BARNETT, Executor, Defendant.

      Bond — material alteration — when the question should he left to the jury

    In an action upon a bond given by a married woman to secure a debt due from ber husband, the defense was that after the execution of the bond, a clause charging her separate estate with its payment had been inserted without her knowledge or consent. The clause appeared, from an examination of the bond, to have been inserted after it was first drawn. The plaintiff and the attorney who prepared the bond testified that the clause was inserted in the bond before it was executed.

      Held, that the question as to when the clause was inserted in the bond, should have been left to 'the jury, and that the court erred in directing a verdict in favor of the plaintiff
    Motion by the defendant for a new trial upon exceptions taken at the Monroe Circuit, where a verdict was ordered for the plaintiff and the exceptions were ordered to be heard in the first instance at the General Term. The defendant requested to have the case submitted to the jury, but the court refused so to do.
    The action was brought upon a bond executed by Azubah Carpenter. Pending the action she died, and the same was revived and continued against the defendant, as her executor. The answer contained a defense alleging a material alteration of the bond, after its execution, by the insertion therein of the following clause, viz. : “And I, said Azubah Carpenter, for value received, charge my separate estate with the payment thereof.”
    The bond was in the handwriting of Origin Pease, a clerk and nephew of the plaintiff, except the words just above quoted. And after the condition clause there was drawn a diagonal cancelling line (apparently to prevent the insertion of other words, or so that the bond would show on its face the insertion of any other words), which diagonal line was drawn so as to extend over the blank space left in the printed form upon which the bond was written, from the end of the written words of the condition clause down to the formal concluding words of the bond.
    After the line was drawn, as the face of the original bond seemed to indicate, the words above quoted were inserted, and, as the evideuce tended to show, in a different handwriting and a different ink from the prior written words of the bond.

      J. A. Stull, for the plaintiff.

      J. D. Decker, for the defendant.
   HaediN, J.:

Upon the trial it appeared that the bond in suit was given for the debt of Dr. Carpenter, and that the defendant was not originally liable therefor.

In order to bind her to its payment, the words evincing her intention to charge and bind her separate estate with the payment of the bond, upon which she was to be made a surety, were essential and material to its validity as against her. Therefore, if the clause charging her separate estate was inserted after the execution of the bond, it was a material alteration, and such an alteration as to avoid the instrument as to her. (Paine v. Jones, 76 N. Y., 274; affirming S. C., 14 Hun, 580; Reeves v. Pierson, 23 Hun, 186; Kinney v. Schmidt, 5 Weekly Digest, 519.)

Whether the words which rendered the female obligor liable upon the bond, and charged her separate estate with the payment thereof, were inserted before or after execution of the bond by her, was a question of fact which should have been submitted to the jury. It is argued that Fuller, the attorney, who prepared the draught of the bond, and who brought this action, and Pease, the plaintiff, established the fact that the words were inserted before the execution and delivery of the bond. If their testimony was accepted as true, the argument would rest upon a safe foundation.

Before this testimony can be a'ccepted as true, the same must be submitted to a jury. (Elwood v. Western U. Tel. Co., 45 N. Y., 553; Kavanagh v. Wilson, 70 id., 177; Gildersleeve v. Landon, 73 id., 609; Koehler v. Adler, 78 id., 287; Wallace v. Marks, 13 Weekly Digest, 400.)

When the bond was produced upon the trial it bore upon its face evidence of an alteration, as we" saw when it was produced to us upon the argument.

Such indications upon the bond of a change after it was originally prepared, in a material part of the bond, called upon the plaintiff to explain them, and establish, by satisfactory evidence, that the alteration or addition was made before the bond was signed by Mrs. Carpenter. After such explanations were in evidence, it was for a jury to say whether they were satisfactory.'

The question of fact should have been submitted to the jury. (Van Buren v. Cockburn, 14 Barb., 122.)

Motion for a new trial granted, costs to abide the event.

Smith, P. J"., and Haight, <J., concurred.

New trial granted, with costs to abide the event.


author: HARDIN, J.:

text:
    ROBERT R. STEPHENSON and Others, Appellants, v. THE ONTARIO ORPHAN ASYLUM, Respondent, Impleaded with SPENCER D. SHORT and Another, Executors, etc.
    Will— bequest to charitable rnd religious corporation — the will must be made at least two months 'prior to the testator’s death — 1848, chap. 319, sec. 6 —Void legacies — when they go to the next of hin, and not to the residuary legatee.

    No devise or bequest made under section 6 of chapter 319 of 1848 (authorizing any corporation formed under that act, subject to the exceptions in said section specified, to take, hold or receive any property, real or personal, by virtue of any devise or bequest contained in a last will or testament) is valid, unless it be contained in a will made and executed at least two months before the death of the testator. It is not necessary, in order that the devise or bequest should be invalid, that the testator should have left a wife, child or parent.
    When the charter of a religious or charitable corporation subjects it “ to all the provisions of law relating to devises and bequests by last will and testament,” or “to the provisions of law relating to bequests and devises to religious societies,” it is subject to the provisions and restrictions contained in the said sixth section.
    A testator, after giving legacies to certain persons and charitable institutions, provided as follows: “I further direct that whatever amount may remain in the hands of my executors after fully carrying out the provisions of this will and defraying the proper expenses of s® doing, be paid over to the Home Missionary Society of the Presbyterian Church, hereinafter named. ” Certain of the bequests having failed, owing to the incapacity of the legatees to take them:

      Held, that such legacies should go to the next of kin, and not to the residuary legatee. ,

      Appeal from tbe decree of tbe surrogate of Ontario county, judicially settling tbe accounts of tbe executors, and construing tbeir testator’s will and directing a distribution of tbe funds in tbe bands of tbe executors. Tbe testator left about $9,000. He made a will two days before bis death.

      E. A. Wash, for Robert R. Stephenson et al., appellants.

      E. M. Morse, for Sibley Stephenson et al.

      Man & Parsons, for Presbyterian Board of Home Missions.

      W. II. 3/mart, for American Baptist Home Mission Society.

      John 3. Morgan, for Baptist Missionary Convention.

      0. A. Richardson, for Ontario Orphan Asylum.

      Wyncoojo c& Pice, for Spencer D. Short and another, executors, etc.
   HARDIN, J.:

Principally upon the construction of section 6 of chapter 319 of the Laws of 1848, depends tbe right of tbe Ontario Orphan Asylum to uphold tbe decree awarding it tbe legacy for $1,090, given in tbe ninth clause of the testator’s will.

First. Tbe asylum was incorporated under that act, on tbe 22d day of J uly, 1863.

Second. Being incorporated under that act, chapter 360 of the Laws of 1860 does not, as to it, sepersede or repeal section 6 of tbe act of 1848. (3 R. S. [7th ed.], 2288; Lefevre v. Lefevre, 59 N. Y., 443; Kerr v. Dougherty, 79 id., 328; Beehman v. The People, 27 Barb., 304.)

Third. It has been conclusively adjudged by tbe cases, supra, that such a devise and bequest in a will made less than two months prior to tbe death of tbe testator are void, if tbe testator left “ a wife, or child or parent.” •

Now, it is insisted, as tbe testator left no wife, child or parent, that tbe limitation or restriction does not apply. It was so declared by Calvin, surrogate, in Lawrence v. Elliott (3 Redf., 240), and by tbe surrogate whose decision is now before us for review.

Under section 6 of the Laws of 1848, certain corporations, to a limited extent, are made capable of talcing a devise or bequest, and ■then certain persons are authorized to give or devise a limited amount to such corporations.

The court in Lefevre v. Lefevre (supra), said: “ The enactment, and the proviso to it, are to be taken and construed together, and the meaning thus got is the true interpretation. Thus considered, the section ■first gives the capacity to take cmy property, by devise or bequest in any last will of any person, as general as it can be. Secondly, it limits the generality of the phrase ‘ any property,’ by providing ■that the devise or bequest shall not exceed, in clear annual income, the sum of $10,000. Thirdly, it limits the generality of the phrase £ any last will,’ by saying that it must be that of a person not leaving a wife, child or parent; or if he does leave such, that then the last will must devise or bequeath but one-fourth part of the estate .after the payment of debts. Fourthly, it limits the generality of ■the phrase ‘.‘any person,” by saying that it must he one who has made his will more them two months before his death.”

Reading this analysis of the statute, it is difficult to suppose the learned judge who wrote it recognized any such distinction as is contended for by the respondents, though in the case then before the court there was a wife left surviving, still the analysis has some ¡authority as being the interpretation of a statute by a clear judicial intellect, without evolving from it any different rule, when there 'is no wife, child or parent, than when such survived the testator.

We incline to the opinion that the last limitation or restriction oí .•section 6 applies to both classes, viz., to cases where a wife, child •or parent is left, and also to cases where no wife, child or parent survives.

The words, “ and no such devise or bequest shall be valid, in cmy will which shall not have been made and executed at least two ■months before the death of the testator,” are so broad and compre-, hensive, and stand in sirch connection, that we must give them ¡application to “ any will ” which carries a devise or bequest to a •corporation made capable of taking by the first part of the section.

We therefore hold the bequest to the Ontario Orphan Asylum void. Chapter 641 of the Laws of 1881 is not applicable to this •case, as the testator died November 27, 1878.

Since this opinion was prepared, we have been informed by one of the judges of the Court of Appeals that the question we have been considering was involved in- the case of Catharine H. Marx v. Edward McGlynn, as executor, decided in the first department, and argued in the Court of Appeals March 3, 1882, and decided by that court March 21,1882, and that the construction we have placed upon the statute was given by both courts in that case.

II. ¥e are satisfied with the conclusion of the surrogate in regard to the intent of the testator as to the corporations allowed to take by the decree.

III. The JBoard of Home Missions of the Presbyterian Church has a provision in its charter (chapter 287 of 1872), in section 5, subjecting it to all the provisions of law relating to devises and bequests by last will and testament, and it is therefore brought under the rule we have stated as to the orphan asylum. Those words were held, it is true by a divided court, in Kerr v. Dougherty (79 N. Y., 327), sufficient to subject the corporation to the restrictions and limitations in section 6 of the act of 1848. We must follow the majority, and the decision rendered by the court.

It- was the intent of the legislature to subject it to such restraint, and therefore it was done by the words used, as they may reasonably receive such a construction. (People v. Utica Ins. Co., 15 Johns., 381.)

The Baptist Missionary Convention of the State of New York, by chapter 41 of the Laws of 1862, was continued and authorized to take property, subject to the provisions of law relating to bequests and devises to religious societies,” and thereby brought within the provisions of law found in section 6 of the act of 1848. (Kerr v. Dougherty, supra.)

The general policy of the law-making power in respect to restrictions “in amy will” was applied to that corporation, as it has been in terms specifically as well as generally applied. (See opinion of Folger, J., in Lefevre v. Lefevre, supra.)

Legacies having failed because not valid, a fund remains not embraced nor intended to be embraced in the residuary clause of the testator’s will, and therefore it must pass to the next of kin, and not under the residuary clause.

The words of the residuary clause are: “ I direct that whatever amount may remain in the hands of my executors, after fully carrying out the provisions of this will and defraying the proper expenses of so doing, be paid over * * * etc.,” — and they evince a clear intent to give only, such residuum as would remain if all the legatees were paid.

A different residuum is created from the one the testator contemplated by our holding some of the legacies void, and that residuum must pass to the next of kin, by the rule now well established by the adjudications. (Lefevre v. Lefevre, supra; Kerr v. Dougherty, supra; Betts v. Betts, 4 Abb. N. C., 317; Iseman v. Myers, 26 Hun, 651.)

We must reverse the decree of the surrogate of Ontario county, with costs of these appeals of the next of kin, payable to the appellants out of the fund, and remit the proceedings with instructions to pronounce another decree !in accordance with this opinion.

Haight, J\, concurred ; Smith, P. J., not voting, being a trustee of the Ontario Orphan Asylum:

Decree of the surrogate of Ontario county. reversed, with costs of this appeal to the appellants appearing by Mr. Nash and appellants represented by Mr. Mo2-se, payable out of the • fund, and proceedings remitted to the surrogate, with instructions to pronounce further decree in accordance with the decisions of this court.'


text:
    WILLIAM I. PIPER and GEORGE A. KENYON, Respondents, v. GILES VAN BUREN, Appellant, Impleaded, etc.

      Notice of appeal — it must specify the intermediate orders sought to be reviewed— the■ court cannot allow them, to be inserted in the notice, after the time to appeal has-expired— Gode of Oi/oil Procedure, secs. 1301, 1316.
    Tie plaintiffs appealed from a judgment in favor of the defendant, entered upon the verdict of a jury. Amotion made "by the plaintiffs upon the judge’s minutes for a new trial had been denied prior to the service of such notice of appeal. After the time to appeal from the order denying this motion had expired the plaintiffs applied for and procured leave to amend the notice of appeal from, the judgment, by inserting therein a statement that they also appealed from.the said order.

      Held, that the court had no power to allow the amendment.

      Appeal from an order of the Oneida Special Term allowing an amendment of a notice of appeal, or an insertion therein of a specification of an order made in the action prior to the entry of the judgment appealed from.
    The action was brought to recover upon a promissory note and . was tried at the Herkimer Circuit in November, 1880. A verdict was rendered in favor of the defendant. Thereupon the plaintiffs made a motion for a new trial on the judge’s minutes, which motion was denied and the order was filed and entered in the Herkimer county clerk’s office on the 24th of February, 1881, and on that day a copy of the order denying^the motion for a new trial on the minutes was served on the attorney for the defendant, and a notice of the entry of the order and also a copy of the memorandum made by the justice who granted the order. March 7,1881, judgment was entered in favor of the defendant dismissing the plaintiffs’ complaint and for $180.89 costs.
    On the 8th day of March, 1881, a copy of the judgment and a notice of the filing and entry thereof were served by. mail on the plaintiffs’ attorney. On the 5th day of April, 1881, the plaintiffs’ attorney served a notice of appeal from the said judgment. The plaintiffs’ time to appeal from the order denying the motion for a new trial on the minutes expired on the 26th day of March, 1881.
    July 9, 1881, a proposed case and exceptions was served. July 26, 1881, proposed amendments to the case and exceptions were served. The twenty-third proposed amendment was to strike out of the plaintiff’s proposed case and exceptions the whole of the charge to the jury. On the 9th of November, 1881, the proposed case and exceptions was withdrawn, and another proposed case and exceptions served by consent.
    November 15,1881, proposed amendments were served. December 24,1881, the parties appeared before the justice for the settlement of the case and exceptions and amendments. The question arose in respect to the insertion of the judge’s charge in the case and exceptions. The defendant opposed the insertion of it in the case and exceptions, on the ground that no appeal had been taken from the order denying a motion for a new trial.
    On the 27th of May, 1881, the plaintiffs served a notice of argument before the General Term, to be held in June, 1881. January 10, 1882, plaintiff gave notice of a motion to be heard on the 21st of January, 1882, to amend the notice of appeal served as aforesaid, by adding thereto the words, “ and also appeals from the order denying the plaintiff’s motion for a new trial, or that the judgment be set aside and vacated so that the plaintiff in this action may serve a new notice of appeal therein.”
    The notice of motion specified, viz., “ that the said motion will be made on the ground that the plaintiffs have seasonably and in good faith serve 1 a notice of appeal to the General Term, and by inadvertence have omitted to appeal from the order herein, denying the plaintiffs’ motion for a new trial, or for such further order or relief as the court may grant in the premises.” Upon the hearing of the motion thus noticed, the Special Term, on the 21st of January, 1882, granted the order from which this appeal is taken, and ordered “ that the plaintiffs’ notice of appeal herein be and the same is hereby amended by adding thereto and inserting therein, viz.: “Also appeals from the order denying plaintiffs’ motion for a new trial herein, and which order was entered in an office of the clerk of the said county of Herkimer, on the 24th day of February, 1881.” The Special Term delivered an opinion, in which it is said that “ this is a proper case for allowing an amendment, providing there is power in the court to do it,” and coming to the conclusion that the court had power to allow such an amendment.

      Earl <& Prescott, for the appellant.

      J. J. Dudleston, Jr., and A. II. Prescott, for the respondents.
   Hardin, J.:

Clearly it appears that the time for an independent appeal from the order denying the motion for a new trial on the minutes expired on the 26th day of March, 1881. Therefore, when the notice of appeal from the judgment was served on the 5th day of April, 1881, the only right that remained in the plaintiffs to renew the order denying the motion for a new trial on the minutes depended upon section 1316 of the Code of Civil Procedure, which declares,viz.: “An appeal taken from a final judgment brings up for review an interlocutory judgment or an intermediate order which is specified in the notice of appeal and necessarily affects the final judgment. * * *

The right to review an interlocutory judgment or an intermediate order, as prescribed in this section, is not affected by the expiration of the time within which a separate appeal therefrom might have been taken; and upon section 1301, which is as follows: “ Where the appeal is from a final judgment or from a final order in a special proceeding, and the appellant intends to bring up for review thereupon, an interlocutory judgment or an intermediate order, he must, in the notice of appeal, distinctly specify the interlocutory judgment or intermediate order to be reviewed.”

Prior to these sections the party who sought to review an intermediate order was under the necessity of taking an appeal therefrom within the time allowed by statute, under the penalty of being conclusively bound by the interlocutory judgment or intermediate order if such an appeal was not taken. (See Throop’s note to section 1316 of the Code of Civil Procedure.)

Apparently the object of these sections, in their provisions in respect to an interlocutory judgment or an intermediate order, was to give an appellant a second opportunity to appeal therefrom if he desired to do so, in conjunction with an appeal from a final judgment; and as a condition of the enjoyment of such second opportunity of appeal, the statute made it necessary, as a condition precedent, that in the appeal from the final judgment the appellant must “ distinctly specify the interlocutory judgment or intermediate order to be reviewed.” Such specification is as essentially a condition precedent to the right to exercise a second opportunity to appeal as any other condition as to the right of appeal.

In other words, the second opportunity is statutory, and when the statute says “ he must,” in the notice of appeal, distinctly specify the interlocutory judgment or intermediate order to be reviewed, it annexes to the second opportunity to effectuate an appeal a condition which must be observed.

That condition was not observed in this case; therefore there was no compliance with the provisions of the statute. True, had the notice of appeal specified the order made upon the motion for a new trial on the minutes, then -the right of review would have been perfected, because section 1316 prescribes that “the right to review an interlocutory judgment or an intermediate order, as prescribed in this section, is not affected by the expiration of the time within which .a separate appeal therefrom might have been taken.” Having thus reached the conclusion that a specification in a notice of appeal is a condition precedent to the right to review an intermediate order, can such specification be inserted in a notice of appeal after the time has expired for the bringing of an appeal from a judgment? We think not.

V ery liberal powers are given to the court to allow amendments to pleadings and proceedings. (Secs. 721, 722, 723, 724.)

But it has been settled in numerous cases that courts have not the power to enlarge the time which statutes allow for the bringing of an appeal. (Fry v. Bennett, 16 How., 385; Lavelle v. Skelly, 24 Hun, 642; Code of Civil Proc., § 784.)

In Lavelle v. Shelly, the plaintiff appealed from an order denying a motion for' a new trial, and not from the judgment. Thereafter, and after the time to appeal from the judgment had expired, upon discovering that the questions he sought to review could not be considered upon the appeal from an order, he applied for leave to amend his notice of appeal by inserting therein a notice of appeal from the judgment as well as from the order; and the court held that, as the time to appeal from the judgment had expired, the court had not the power to grant the application.

Section 784 of the Code of Civil Procedure is as follows: “ A court or a judge is not authorized to extend the time fixed by law within which to commence an action or take an appeal.” Nor does section 1303 confer the power to extend the time within which an appeal must be taken, or to permit the party to specify an order which he seeks to review after the time to review has expired, after the appeal from a judgment has been taken, and after the right to appeal from such judgment has expired.

That section provides, viz.: “ Where the appellant seasonably and in good faith serves the notice of appeal, either upon the clerk or upon the adverse party or his attorney, but omits, through mistake, inadvertence or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, * * * * the court in or to which the appeal is taken, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made upon such terms as justice requires.”

The appeal taken in this case was perfect. The notice of appeal was perfect. No amendment is “.necessary to perfect the appeal.”

If the amendment authorized by law was allowed, it would not render any more perfect the appeal which was taken, than it was at the time of the service of the notice of appeal. It would rather insert a specification which should have the force and effect of a new appeal, of another appeal; would bring to the enjoyment of the appealing party a right which he allowed to pass from him by his omission to comply with the requirements of the statute in regard to the second opportdnity provided for a review.

The opportunity he allowed to expire. The flux of time cut-off his right, and section 784 declares that a court is not authorized to extend the time fixed by law to take an appeal. (Bryant v. Bryant, 4 Abb. [N. S.], 138; Humphrey v. Chamberlain, 1 Kernan, 274; Salles v. Butler, 27 N. Y., 638.) Irwin v. Muir (13 How., 409), much relied upon by the Special Term, was decided by a Special Term of the New York Common Pleas, and simply holds that after a notice of appeal was served to bring up a judgment of the Marine Court, that it might be amended so as to specify the grounds of the appeal. Such an amendment as that differs from the one here in review.

Here it is sought to draw into a review a decision made long anterior to the judgment appealed from, and to exercise a supposed right of review of such anterior decision, after the expiration of the time set by two limits found in the statutes, to which we have adverted.

We do not recognize the case as an authority justifying the order made at the Special Term.

These views lead to the conclusion that the Special Term had no power to grant such an amendment as was allowed.

We must therefore reverse its order, with ten dollars costs and disbursements.

Smith, P. J., and Haight, J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Haight, J.;

text:
    ELISHA W. SHERMAN, Appellant, v. THE TRUSTEES OF THE VILLAGE OF CLIFTON SPRINGS, Respondents.

      Incorporation of villages — raising extraordinary taxes — 1870, chap. 291, title-4; secs. 4, 5 — the validity of the tax cannot be disputed if the warrant and assessmenUroll are regular on their faces — remedies of taxpayers.

    Appeal from a judgment, entered upon a nonsuit granted by the County Court of Ontario county.
    This action was brought in a Justice’s Court to recover the value of a wagon alleged to have been wrongfully taken by the defendants and converted to their own use. The wagon was, in fact, taken by the defendants’ collector of taxes, by virtue of a warrant issued by the village trustees, for the purpose of collecting the amount of plaintiff’s tax, levied in the year 1876. The plaintiff alleges that such tax was illegal and void. The plaintiff recovered judgment before the justice for the value of the wagon. An appeal was taken to the County Court, where a new trial was had, resulting in a nonsuit, and from the judgment entered thereon an-appeal was-taken to this court.
    It was claimed on the part of the appellant that the trustees, in assessing that which is described as the extraordinary tax, acted without authority, and that their assessment was illegal and void.
    Section 4, title 4 of chapter 291 of the Laws of 1870, provides that “the trustees shall have power to raise money for an extraordinary expenditure for any purpose, by assessment and tax, by submitting a resolution stating the amount to be raised, and the specific object for which, to the annual election, or to a special election of the legal electors entitled to vote on such questions, to be held as in this act directed.”

      Section 5 provides: “ When extraordinary expenditures shall be necessary, in the judgment of the trustees, they shall have power to pass a resolution or resolutions to be entered in the records of their proceedings specifying the object and the amount required. No resolution shall express more than one object, and the amount required for the same.”
    The resolution adopted by the trustees and submitted to the electors was as follows:
    “ Resolved, That the sum of $900 be raised by tax as an extraordinary expense. Said sum to be used for “the purpose of refunding the several amounts claimed to be illegal paid by a portion of the taxable inhabitants of the corporation on tax warrant dated May 21, 1875.”
    At the election by the people this resolution was adopted, and the ■ trustees proceeded to assess the tax.
    The court at General Term said : “It is contended that-the resolution should have specified the name or names of each individual and the amount of illegal tax he had paid and for which it was proposed to refund. This does not appear to be required. The statute which we have quoted provides that the object shall be specified for which the extraordinary tax is levied, and that the resolution shall not express more than one object. But one object is expressed in this resolution; that is, the refunding of tax illegally paid by a portion of the taxable inhabitants. The amount, $900, was expressed. We are of the opinion that the resolution substantially complies with the requirements of the statute.
    The appellant further claims that the corporation was not bound to refund the tax of 1875. * * * • “We do not, however, consider it necessary to discuss this question further or to decide it, for from the view that we take of the case it must be disposed of upon other grounds.
    “By section 13 of title 3 of the act referred to the trustees are made assessors, and the. powers of assessors of towns are conferred upon them. As such they are quasi judicial officers, and the assessment-roll, when finally completed by them as trustees, stands as a judgment, and so long as the same remains in force no action will lie to recover back a tax, even though the payment was enforced by levy and sale of property. (The Buffalo and State Line R. R. Co.
      v. The Board of Supervisors of Erie County, 48 N. Y., 93-99; The Bank of the Commonwealth v. The ■ Mayor, eto., of the City of New York, 43 id., 184; Swift v. The City of Poughkeepsie, 37 id., 511.)
    “ True, this action is not in terms brought to recover back the tax, it is brought to recover damages for the levy and sale of the plaintiff’s property to pay the tax. But this makes no difference.
    “If it appears^upon the record that a judgment is void, then it is not binding upon the parties, and will not be enforced by the courts, but where the judgment is regular, no defects appearing upon the record, it is binding and will be enforced, and cannot be impeached in a collateral action or proceeding. So with the assessment roll and warrant. If it appears upon their face that the tax was- illegal and void, then the- roll and warrant are no protection to an officer in enforcing collection. If, on^ the other hand, no defects appear, then they are a protection, and cannot be adjudged null and void in a collateral action.
    “ It may be inquired in this connection, what remedy has the taxpayer to shield himself from the payment of taxes assessed for an illegal or unauthorized purpose \ We answer: 1st. That if he moves seasonably, he has- the right to review the action of the assessors by certiorari. (37 N. Y., 511-516.) 2d. He has the right to bring an action in equity under section 1925 of the Code of Civil Procedure, and to have the roll adjudged illegal and void. In such an action the court had full power to inquire, dehors the record, as to the validity of the claim or claims for which the tax is assessed. In-this case the action was commenced before a justice of the peace, before whom a recovery was had. The justice assumed the power to go-back and inquire, dehors the record,, as to-the legality of claims adjudged to be valid by the board of trustees of the village, and ratified by the electors on a submission of the question to them. This power does not exist in J ustices’ Courts. Such jurisdiction the statute has reserved for courts of equity.”

      Charles II. Paddock, for the appellant.

      Edwin Hicks, for the respondents.
   Opinion by

Haight, J.;

Smith, P. J., and Hardin, J., concurred.

Judgment of the County Court affirmed.


author: Hardin, J.;

text:
    WILLIAM H. DENNISTON, as Overseer of the Poor, etc., Respondent, v. DAVID TRIMMER, Appellant.

      Action to recover a penalty for a violation of the excise law — that money was loaned by the defendant to the plaintiff, as overseer of the poor, cannot be set up as' a counter-claim — An improper pleading used in a Justices' Court cannot be made the basis of a demand for a new trial on appeal in the County Court.

    Appeal from an order and .judgment of the County Court of Monroe county, affirming with costs the judgment of a Justices’ Court.
    The action was brought to recover a penalty of fifty dollars for selling liquor without a. license, contrary to the excise laws of the State.
    The answer set up a general denial, also a counter-claim against the plaintiff as overseer of the poor of the town of Parma, for money loaned and advanced by the defendant to the plaintiff in the sum of $118.
    The case was tried before Russell C. Bates, Esq., a justice of the, peace of the town of Parma, on the 24th day of October, 18Y8, and a judgment rendered in favor of the plaintiff and against the defendant for fifty dollars, with costs.
    A demurrer interposed by the plaintiff to the counter-claim set up by the defendant was overruled.
    An appeal was taken from the judgment of the Justicos’ Court to the County Court of Monroe county, for a new trial in that court.
    When the case was reached on the calendar in the County Court, on motion of the respondent’s attorney, the court ordered that all that part of the defendant’s answer which sets up a counterclaim be stricken out, and that the cause be transferred to the law calendar of said County Court, and that the appeal be argued on the justice’s return.
    The court, after hearing the argument upon the return, affirmed the judgment of the Justices’ Court, with costs.
    The court at General Term said: “No statute is cited and we know of none which authorizes the overseers of poop of towns to borrow money, and the off-set or counter-claim therefor in a penal action, and the attempt of the defendant to set up a claim for money loaned to plaintiff as overseer of the poor, against a demand for a penalty for violation of the excise law, is without precedent and sanction of any statute, and the justice erred in overruling the demurrer interposed in the Justices’ Court to that portion of the answer.
    “ When the cause was moved in the County Court, it was properly held by that court, that an improper pleading cannot be made the basis of a demand for a new trial in that court, under section 352 of the Code of Procedure.

      “ Such ruling the authorities sustain. (Houghton v. Kenyon, 38 How., 107; Johnson v. How, 11 Alb. L. J., 128; Nash v. White's Bank, 13 Weekly Dig., Ml; Smith v. Rail, 67 N. Y., 48 ; Pittman v. Ma/yor, 3 Hun, 370.) Hence the order made by the County Court was right.”

      George E. Bvpsom, for the-1 appellant.

      John M. Da/oy, for the respondent.
   Opinion by

Hardin, J.;

Smith, P. J., and Haight, J., concurred.

Judgment and order affirmed.


text:
    HORACE L. HODGE, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Raitroad company — duty of, to erect and repair fences — it is not liable if it was not negligent and had neithe¡' actual nor constructive notice of defects therein — in an action fUr-negligmoe, the allowance of interesPis in the discretion of the jury.

    Appeal from a judgment, entered upon the verdict of a jury in the County Court of Ontario county, in favor of the plaintiff; and from an order denying a motion for a new trial, made upon the minutes of the court.
    The action was originally brought in a Justices’ Court. Judgment was rendered in favor of plaintiff, from which an appeal was taken to the County Court, in which court a new trial was had.
    This action was brought to recover damages for the killing of four sheep, in the fall of 1871; of two cows in August, 1874, and three sheep in June, 1877, through the negligence of the defendant, in not keeping in proper repair the fences along the line of defendant’s railroad, and the cattle-guards at the highway crossing.
    The eourt at General Term said : “ The defendant’s counsel also1 requested the court to charge that, if the cattle or sheep got through the company’s fence or cattle-guard by reason of some defect therein, which defect was not brought home to the knowledge of the defendants or its agents, either directly or constructively, the plaintiff cannot recover. This the court refused to charge, and the defendant, excepted. We are of the opinion that the request was proper, and should have been charged. The statute requires that railroad companies must build and maintain fences along the sides of their road, and makes them .liable, for all stock escaping, and killed upon their tracks when such fences are not in good repair. The right to recover depends upon the negligence of the defendant. The inquiry is: Has the company discharged its duty under the statute ? Fences are liable to get out of repair; are liable to be blown down by sudden gusts of wind; to be let down by trespassers; to be destroyed by fire and other causes. It is the duty, however, of the railroad company, within a reasonable time, to cause them to be repaired. It is their duty to cause frequent examinations to he made to see if the fences are in repair, and if they neglect to do so they will be charged with negligence. Where they have actual notice that a fence is out of repair they are chargeable with negligence if they suffer if so to remain. Where fences are out of repair, and have been so for such a length of time that the company will be. presumed to have notice through its agents and servants, they are then chargeable with negligence, as having had constructive notice. Unless the company has actual or constructive notice of the defect in the fences, or ,are guilty of negligence in not making proper examination for the purpose of seeing whether the fences are in repair, there can be no recovery. (Wheeler v. The Erie Railway Go., 2 T. & 0., 634; Munch v. N. Y. G. R. R. Go., 29 Barb., 647.)
    “The court charged that if the jury found for the plaintiff they must allow interest on the value of the sheep and cattle killed, from the time they were killed to the present day. To this charge the defendant duly excepted. This was error. This action is to recover damages claimed to have been sustained on account of the defendant’s negligence. In such actions interest is not allowable as matter of law. It can only be awarded as damages, and is in the discretion of the jury. {Black v. The Camden and Amboy R. R., 45 Barb., 40; The Rome Ins. Co. y. The Penn. R. R. Co., 11 Hun, 182,188.)
    “ The authorities cited by the respondent upon this question were cases arising out of contracts, and are therefore not in point.”

      W. H. Adams, for the appellant.

      Edwin Iliclts, for the respondent.
   Opinion by

Haight, J.;

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

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


author: Smith, P. J.;

text:
    S. CLARK LEWIS, Plaintiff, v. WHITE’S BANK OF BUFFALO, Defendant.

      Forgery — one who has inspected am, indorsement alleged to home been made by Mm, and recognized it as genuine, cannot recover bach money paid upon it, if it proves to be a forgery.

    Motion by the plaintiff for a new trial on exceptions, ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendant directed at the circuit.
    This is an action to recover back money paid by the plaintiff to the defendant under an alleged mistake of facts. On the 6th of May, 1879, the plaintiff made and delivered to one Hunt for the accommodation of the latter his promissory note for $1,000, payable to Hunt’s order at defendant’s bank in Buffalo two months from date, with interest. At some time prior to June 1, 1879, another note precisely like the genuine note above described, but with the plaintiff’s name as maker forged thereto, was presented to and discounted by the defendant. About the first of June, Hunt absconded and his subsequent whereabouts have been unknown. On June 11, 1879, the plaintiff having heard that Hunt had absconded and that he had committed some forgeries went with his counsel to the defendant’s bank and asked if they had any of his paper there. He was shown the $1,000 note which the bank had discounted, and also a note for about $1,500 purporting to be signed by plaintiff and payable to Hunt’s order. He pronounced the $1,500 note a forgery, but the testimony is conflicting as to what he said about the $1,000 note. The testimony on the part of the defendant is that he stated it was genuine, while that on the part of the plaintiff tends to show that he expressed strong doubts as to its genuineness. However that may be, it appears that on the 7th of July, 1879, the plaintiff, at Lockport, mailed a letter to the defendant containing a draft for the amount of the $1,000 note which was about to mature on the ninth of Jujy. The letter was signed by the plaintiff, jpw his attorney, addressed to the defendant and was as follows: “ Inclosed find draft on New York, indorsed to your order for $1,012.25, with which I desire to take up note made by me to order of M. N. Hunt, dated May 6, 1879, at two months, payable at your bank for $1,000 and interest. Please return the note to me at this place.” Before the receipt of that letter the genuine'note for $1,000 had been forwarded to the defendant by a bank in Batavia for collection. On the receipt of the draft the defendant applied it to the payment of the $1,000 note, of which it was the owner, and on the same day mailed said note to the plaintiff and protested the note belongingto the Batavia Bank. The plaintiff subsequently paid the latter note and on the 16th of July, 1879, he presented the forged note to the defendant and demanded back the money he had paid upon it, which was refused. Upon these facts the judge at the circuit directed a verdict in favor of the defendant, holding that as the plaintiff had seen and inspected the note owned by the defendant’s bank before paying it he could not recover back the amount paid.
    The court at General Term said: “We are of the opinion that the case was correctly disposed of. Notwithstanding the general rule that money paid under a mistake of fact may be recovered back, however negligent the party paying may have been in making the mistake, unless the payment has caused such a change in the position of the other party that it ’would be unjust to require him to refund, it is well settled that where the alleged mistake consists in the recognition as genuine of a forged signature, either of the party paying or of his correspondent, whose signature he was held bound to know, an action to recover back the money paid will not lie. (Price v. Neal, 3 Burr., 1355 ; National Park Bank of N. Y. v. Ninth National Bank of N. Y., 16 N. Y., 17.) In the present case the plaintiff deliberately inspected his signature to the note before paying, and whatsoever doubts he may have expressed as to its genuineness .at the time of inspection, his subsequent payment was such a recognition of the genuineness of the signature as prevents a recovery. It is no answer to say that when the bank received the draft it had the genuine note in its possession, and that ■the direction in the letter containing the draft was to apply it on fhe note made by the defendant. Neither at the time when the plaintiff inspected the note at defendant’s bank, nor when he wrote ■the letter inclosing the draft, did he know that there was another note, $1,000, outstanding, bearing his name; and no other construction can be put upon his letter than that it referred to the note which he had inspected at the bank. It was equivalent to saying to the defendant that whatever doubts he may have entertained previously regarding the note shown to him, he was then satisfied that it was genuine.”

      A. K. Potter, for the plaintiff.

      Geo. Wadsworth, for the defendant.
   Opinion by

Smith, P. J.;

Hardin, J., concurred; Haight, J., not acting.

New trial denied, and judgment ordered for defendant on the verdict.


author: Smith, P. J.

text:
    William Kanna, Respondent, v. Michael Kester, Appellant.
   Judgment and order affirmed. Opinion by

Smith, P. J.


text:
    Emma E. Mapes, Respondent, v. Frederika Mathern, Survivor, etc., Appellant.
   Judgment and order affirmed.


author: Macomber, J.;

text:
    In the Matter of the Application of the New York Central and Hudson River Railroad Company for Appointment of Commissioners to Appraise Certain Lands of Fannie P. Cottle, and others.
   Order of the Special Term affirmed, without costs to either party. Opinion by

Macomber, J.;

Hardin, J., not acting.


text:
    The People of the State of New York, Respondent, v. James D. Buckley, Appellant, Impleaded, etc.
   Judgment and order affirmed on the opinion of Churchill, J., at Special Term.


author: Talcott, P. J.

text:
    Kelsey Todd, Executor, etc., Appellant v. The United States Life Insurance Company in the City of New York, Respondent.
   Judgment and order affirmed. Opinion by

Talcott, P. J.


text:
    Thomas F. Baker and others, Respondents, v. Levi Hotchkiss, Appellant.
   Judgment reversed and judgment ordered for the defendant, with costs. Opinion by

Smith, P. J.


text:
    Ezra W. Acer, Appellant, v. Levi Hotchkiss, Respondent, Impleaded, etc.

   Judgment affirmed with costs, with leave to either party to modify the same as suggested in the opinion. Opinion by

Smith, P. J.;

Haight, J., not sitting.


text:
    Alonzo Rozier, Appellant, v. The Buffalo, New York and Philadelphia Railway Company, Respondent.
   Judgment reversed, and another trial ordered before another referee, costs to abide event. Opinion by

Smith, P. J.


text:
    Valentine Cropsey, Respondent, v. Philetus R. Perry, Appellant.
   Judgment and order affirmed. Opinion by

Smith, P. J.


text:
    John T. Wheelock, Respondent, v. Josephine Looney, Appellant.

   Judgment affirmed. Opinion by

Smith, P. J.


text:
    Joseph Medberry, Respondent, v. Seneca M. Short, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    Amanda Lakey, Appellant, v. Lewis Scott, Respondent, Impleaded, etc.
   Judgment affirmed. Opinion by

Smith, P. J.


text:
    George B. Warner, Receiver, Respondent, v. Norman Gillett and others, Appellants.
   Judgment reversed and a new trial ordered before another referee, costs to abide event. Opinion by

Smith, P. J.


text:
    William Summerville, Appellant, v. Charles H. Metcalf and others, Respondents.
   Judgment reversed and new trial ordered in the County Court of Oswego county, costs to abide event. Opinion by

Smith, P. J.


text:
    Daniel W. Powers, Respondent, v. John H. Carpenter, Appellant.
   Judgment affirmed. Opinion by

Smith, P. J.


text:
    George W. Cramer and another, Respondents, v. Gardner D. Warren, Appellant.
   Judgment affirmed. Opinion by

Smith, P. J.


text:
    Richmond Putnam, Respondent, v. Alphonso Matthewson and another, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Smith, P. J.


text:
    Daniel Wallace, Appellant, v. Joab L. Clift, Surviving Partner, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    William Maher, Respondent, v. S. Hatch Gould and another, Appellants.
   Judgment reversed and a new trial ordered, costs to abide event, unless the plaintiff stipulates to reduce the judgment as indicated in the opinion, in which case the judgment so reduced is affirmed, with costs to the respondent. Opinion by

Smith, P. J.


text:
    William S. Peck and others, Appellants, v. Orrin C. Parker, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


text:
    Edwin C. Butts, Respondent, v. The Village of Lowville, Appellant.
   Judgment and order affirmed. Opinion by

Smith, P. J.


text:
    Christian Pfeiffer and others, Appellants, v. Patrick Moore and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    Martin S. Cuykendall, as Receiver, etc., Respondent, v. Peter Hood, Appellant.
   Judgment reversed and new trial ordered,' costs to abide event. Opinion by

Smith, P. J.


text:
    Samuel L. Jones, Appellant, v. George B. Dusenberre, Respondent.
   Judgment reversed and new trial ordered, with costs to abide the event. Opinion by

Hardin, J.;

Smith, P. J., not voting.


author: Hardin, J.

text:
    Harris Andrews, Respondent, v. Amasa Miles and Asa Miles, Appellants.
   Judgment and order affirmed as to Amasa Miles, and reversed as to Asa Miles, and new trial ordered in Ontario County Court, with costs to abide the event. Opinion by

Hardin, J.


text:
    John Delmers, Respondent, v. George Brown, Appellant.
   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    Oliver French, Respondent, v. Harlow C. Le Roy, Appellant.
   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    Myron Pardee, Respondent, v. Samuel C. Kennedy and others, Appellants.
   Judgment reversed and a new trial ordered before another referee, with costs to abide event. Opinion by

Hardin, J.


text:
    August Siegrist, Respondent, v. Edward W. Everson, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. ■ Opinion by

Hardin, J.


text:
    Hannah S. Lambert and others, Appellants, v Eben C. Sprague and others, Respondents.
   J udgment affirmed, with costs. Opinion by

Hardin, J.


text:
    Abraham Altman, Respondent, v. Myron P. Bush, Appellant, Impleaded, etc.

   Judgment reversed and a new trial ordered, with costs to abide event. Opinion by

Hardin, J.


text:
    Horace Smith et al., Appellants, v. The City of Rochester, Respondent.
   Judgment affirmed, with costs on the opinion of Bumsey, J. (See, also, Black, River Improvement Co. v. La Crosse Brewery Co., Opin. of Taylor, J., 25 Alb. L. J., 458.)


text:
    Richard Bullymore, Respondent, v. William R. Seward, Burrell Spencer, et al., Appellants.
   Judgment and order affirmed, with costs. Opinion by

Hardin, J.


text:
    The Metropolitan National Bank v. William B. Sirrit, Impleaded.
   New trial ordered, with costs to abide event. Opinion by

Hardin, J.;

Haight, J., not voting.


text:
    Carl John Jonsson, Respondent, v. Nelson Thompson, Appellant.
   Judgment affirmed. Opinion by

Hardin, J.


text:
    Milton H. Smith, Appellant, v. John G. Wagner and another, Respondents.
   Judgment reversed and a new trial ordered, with costs to abide the event. Opinion by

Hardin, J.


text:
    John G. Neal et al. v. Louis Sachs and Solomon Wile, Appellants.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Opinion by

Hardin, J.


text:
    Edward Collins, Appellant, v. Henry Rockwood, Respondent.
   Judgment of the County Court of Oswego county affirmed. Opinion by

Hardin, J.


text:
    John Paine et al., Commissioner of Highways, Respondents, v. Thomas East, Appellant.
   Judgment of the Monroe County Court affirming the judgment of a municipal court affirmed, with costs. Opinion by

Hardin, J.;

Smith, P. J., not participating in the decision.


text:
    Ira D. Hopkins, Respondent, v. Frank J. Nightingale, Appellant.
   Judgment of the County Court of Oneida and that of the justice reversed. Clpinion by

Hardin, J.


text:
    Alma A. Parker et al., Respondents, v. Henry Austin, Appellant.
   Judgment reversed and a new trial ordered before another referee, with costs of this appeal to abide the final award of costs in the action. Opinion by

Hardin, J.


text:
    Caroline Regney, Respondent, v. William H. Robinson, Impleaded, Appellant.
   Judgment modified by striking out the award of costs and disbursements, and as modified affirmed, without costs of the appeal to either, party. Opinion by

Hardin, J.


text:
    In the Matter of the Final Accounting of James Fraser et al., Executors, etc., of H. W. Wells, Deceased.
   Decree of the surrogate affirmed, with costs, on the opinion of the surrogate.


author: Haight, J.

text:
    Elizabeth Williams, Appellant, v. Orin F. Barton, Respondent.

   Motion for new trial denied and judgment ordered for the defendant upon the verdict. Mem. by

Haight, J.


text:
    Samuel Seeley, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment reversed and' new trial "ordered, costs to abide event. Smith, P. J., taking no part; opinion by

Haight, J.


text:
    Olin J. Wilcox, Respondent, v. Byron H. Daggett, Appellant.
   So much of the order appealed from as allows ten dollars costs to abide the event reversed, as to the remainder affirmed, without costs of this appeal to either party. Opinion by

Haight, J.


text:
    Frederick W. Ainsworth, late General Guardian, etc., Appellant, v. Elizabeth W. Aldrich, General Guardian, etc., Respon

      dent.
   Decree of the surrogate modified by crediting the late guardian with the sum of $2,676.63, being the amount of /he payments for interests and insurance made upon the Rutherford Park mortgage, and as so modified affirmed, without costs to either party. Opinion by

Haight, J.


text:
    Matthew Murphy, Respondent, v. Anna M. McLanahan et al., Appellants.
   Judgment and order reversed and new trial ordered, costs to abide the event unless the plaintiff stipulate within twenty days that the judgment may be reduced to the amount of $218.75, with interest thereon from the 12th day of April, 1876. If’stipu- , lation is given then judgment affirmed for that amount, without costs of this appeal to either party. Opinion by

Haight, J.


text:
    John B. Grow, Respondent, v. Horace Gerlock and Adam J. Snell et al., Appellants.
   Judgment affirmed, with costs. Opinion by

Haight, J.


text:
    Susannah B. Loveridge, Respondent, v. Lewis O. Hill and Clayton L. Hill, Appellants.
   Judgment affirmed. Opinion by

Haight, J.


text:
    Mary A. Warner, as Landlord, Respondent, v. Mercy Henderson, as Tenant, Appellant.
   Judgment of the County Court and of the Justices’ Court reversed, with costs. Opinion by

Haight, J.


text:
    John B. Lester, Respondent, v. Peter Crowley, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Mem. by

Haight, J.


text:
    Sylvester E. Brown, Respondent, v. Joseph F. Crawford, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Haight, J.


text:
    In the Matter of the Application of the New York Central and Hudson River Railroad Company to Acquire Lands of George E. Mumford et al.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Haight, J.


text:
    Jonathan D. Conklin, Respondent, v. William Smith and Thomas Smith, Appellants.
   Judgment and order affirmed. Opinion by Haight, J.


text:
    Mabel Clark, Appellant, v. William Candee, Respondent.
   The appeal book does not show that the order appealed from has ever been entered in the office of the clerk. Case not considered. Mem. by

Haight, J.


text:
    Jacob E. Fox, Respondent, v. William H. Abbott, Appellant.
   Case not considered. The case is not settled or certified by the clerk.


text:
    Mary E. Riley, Respondent, v. Elizabeth A. Hoyt, Appellant.
   Case not considered. The case does not appear to have been settled or filed in the office of the clerk.


text:
    In the Matter of James H. Kennedy, an Attorney and Counselor of the Supreme Court.
   Ordered, that the said James H. Kennedy be and he hereby is removed from the office of attorney and counselor of the Supreme Court.


text:
    Ruth P. Dimmick v. Elizabeth M. Cooley.
   Two cases. Motion to strike cases from the calendar denied, without costs.


text:
    In the Matter of the Final Accounting of Reuben Leffingwell, as Administrator, etc., of James B. Littlefield, Deceased.
   Motion to strike cause from preferred calendar granted, and case ordered to take its place on the general calendar.


text:
    Ella A. Dana, as Administratrix, etc., v. The New York Central and Hudson River Railroad Company.
   Motion for new trial. New trial denied and judgment ordered for defendant upon the verdict.


text:
    John Belden, Respondent, v. William H. Slade, Assignee, etc., et al., Appellants.

   Motion for reargument denied.


text:
    Sarah Richardson et al., Appellants, v. Frederick Chester, et al., Respondents.
   Motion to dismiss appeal denied, with ten dollars costs. Held, that the respondents having noticed the appeal for argument, waived their right to move to dismiss.


text:
    Same v. Same.
   Order appealed from reversed, with ten dollars costs and disbursements. Held, that the County Court had not power to make the order appealed from under section 3049 of the Code.


text:
    Harrison Sprague, Respondent, v. Turney W. Richards and Andrew W. Richards, Appellants.
   Ordered, that Elisha W. Gardner, who appears to be the assignee and owner of a part of the judgment appealed from in this action, be and he is hereby permitted to appear as a party and respondent therein in his own behalf and bring the appeal to argument on the usual notice, or take such other step in the action, according to the regular practice of the court, as he shall be advised, without costs to either party.


text:
    Elizabeth A. S. Read, Appellant v. Susan F. Davis et al., Respondents.
   Motion for reargument denied.

Haight, J., not sitting.


text:
    Horace Jones, Respondent, v. The Village of Charlotte, Appellant.
   Motion for reargument or for leave to appeal to the Court of Appeals denied.


text:
    Riley Knapp v. Jeremiah Fowler.
   Motion to modify the order of the April term of this court denied, without costs.


text:
    Joseph Iseman v. Jeremiah Myer et al.
   Motion granted in all respects.


text:
    Jacob L. Haas et al., Respondents, v. Edwin Roat, Impleaded, etc., Appellant.
   Motion for reargument or for leave to appeal to the Court of Appeals denied.

Haight, J., not sitting.


text:
    Van Buren Wheat et al. v. Harvey Rice, Impleaded, etc.
   Motion for reargument or for leave to appeal to the Court of Appeals denied. Held, that the points upon which reargument is asked were fully considered in deciding the cause (see 14 Weekly Dig., 399); and we are of the opinion that the case is one in which the appellants have the right to appeal to the Court of Appeals without the order of the court.


text:
    George W. Funk, Respondent, v. John W. Alexander, Appellant.
   Order of the ’Special Term reversed, with ten dollars costs and disbursements, and motion to dissolve injunction granted. Held, that the facts relied upon for the injunction order might have been set up as a defense to the notes, and no excuse is shown for not setting them up therein.


text:
    Jonah D. Decker, Respondent, v. John Kitchen, Appellant.
   Order modified by reducing the item for printing points to thirty-five dollars and twenty cents, and as so modified affirmed; without costs to either party.


text:
    Dennis Kennedy et al., Appellants, v. J. Cleveland Hall, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Sophia Awa, as Administratrix, etc., Appellant, v. Henry Schlender, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Held, that there is no evidence in the appeal book that the verdict was set aside as against evidence.