author:
Daniels, J.:
      Brady, J.:

text:
    PETER BRUNER, Respondent, v. HENRY MEIGS, Jr., and others, Appellants.

      Trust — Power to sell real estate — when terminated.

      A testator devised Ms estate to trustees, with directions to divide it into seven equal parts, and to pay over the income of one part to each child, and, upon the death of any child, leaving issue, to convey, etc., the said one-seventh part to his issue, and further authorized his trustees, at all times during the continuance of such trusts, to grant, sell, etc., all or any part of the real or personal property so held in trust. The will further provided, that certain charges entered on the hooks of the testator should he deducted from the shares of his children respectively. No division was ever made of said estate hy the trustees. In November, 1872, one child died, leaving a widow arid issue. Beld, that the power of the trustees to convey the share of the estate held hy them for such deceased child, terminated on the death of such child. (Brady, J., dissenting.)
    Appeal from a judgment recovered on a trial at Special Term, in an action to recover a sum of money, paid down by the plaintiff at a sale of certain real estate, purporting to be made under authority contained in the will of Jobn J. Palmer, deceased, and to have such sale cancelled. The will devised the rest and residue of the testator’s real and personal estate to trustees, “in trust, to take, receive and hold all the said rest, residue and remainder of my estate, effects, property and rights of property, during the life of my said wife, Margaret Palmer, to lease or let the real estate so to them devised, and to invest the personal estate and property and the proceeds thereof upon bond and mortgage, on improved and productive real estate in fee simple situated in the said city of New York, or in public stocks of the United States or of the State of New York or of the city of New York, and keep the same so invested; and to collect, get in and receive the rents, interest, income, dividends and profits thereof, and pay and apply such rents, interest, income, dividends and profits from time to time as realized and received, after paying with and out of the same and deducting therefrom all taxes, assessments, expenses of insurance and repairs, and other necessary and proper charges, upon my said residuary estate, to the use of my said wife, Margaret Palmer, during her natural life, and her receipts shall be sufficient evidences of such payment and application, and good and sufficient acquittances and discharges therefor. And upon this further trust, and I do hereby devise, order and direct, that immediately after the death of my said wife, all the said rest, residue and remainder of my estate, effects, property and rights of property, and the proceeds thereof, including all the rents, interest, income, dividends and profits thereof, or arising therefrom, not previously paid and applied in pursuance of the provisions hereinbefore contained, be, by the said Edwin A. Oelrichs, Henry Palmer and Henry Meigs, Jr., the survivors or survivor of them, their successors or successor, divided into seven equal parts or shares, and that in their ascertaining the amount of my said residuary estate for the purpose of such division into seven parts, they include in such estate, and compute as part thereof, all and every the sum and sums of money by me at any time advanced, or paid to, or for, or on account of my seven children hereinafter named, each, any, or either of them, and charged to or against them, my said children, respectively, in my own handwriting, in a book of accounts kept' by me at my dwelling-house, and marked on the inside of the cover thereof in my handwriting, “John J. Palmer, Number three;” but no interest shall be computed or charged upon any or either of said sums of money so paid or advanced. And that the said Edwin A. Oelriclis, Henry Palmer and Henry Meigs, Jr., the survivors or survivor of them, their successors or successor, thereupon take, receive, have, hold, use and dispose of the said seven equal parts or shares of my said residuary estate, and each of such parts or shares severally and separately, and the income thereof, and I give, devise and bequeath the same, and each of them severally and separately, and the income thereof, to, for and upon the trusts, uses and purposes following, that is to say: ” * * * * *
    “Sixth. That they, the said Edwin A. Oelriehs, Henry Palmer and Henry Meigs, Jr., the survivors or survivor of them, their successors or successor, upon and immediately after the death of my said wife, take, receive and hold one other equal one-seventh part or share of my said residuary estate, to be ascertained in the manner above provided, less the amount of the several sums of money by me advanced, or paid to, for or on account of my son Henry Palmer, and charged to or against him in the said book of accounts above mentioned during the natural life of my said son Henry. That they lease or let the real estate belonging thereto, and invest the personal estate aud property upon bond and mortgage on improved and productive real estate, in fee simple, situated in the city of New York, or in public stocks of the United States, or of the State of New York, or of the city of New York, and keep the same so invested. That they collect, get in and receive the rents, interest, income, dividends and profits thereof, and pay and apply such rents, interest, income dividends and profits, from time to time, as realized and received (after paying with and out of the same all taxes, assessments, expenses of insurance and repairs and other necessary and proper charges upon the said last mentioned one-seventh part), to the use of my said son Henry, during his natural life, and his receipts shall be sufficient evidence of such payment and application, and good and sufficient acquittances and discharges therefor; and that they upon and immediately after the decease of my said son Henry (after the death of my said wife) leaving lawful issue him surviving, or, in case of his decease before the death of my said wife, leaving lawful issue surviving at the time of her decease, then upon and immediately after the death of my said wife, convey, assign, transfer, make over, pay and deliver all the said last mentioned one-seventh part of my residuary estate (less the deduction last aforesaid), and the proceeds thereof then remaining, and all property and rights of property in which the same, or any part thereof, shall then be invested, and all interests, income, dividends .and profits thereof, or arising therefrom, not previously paid and applied in pursuance of the provisions hereinbefore contained, to the then surviving child or children of my said son Henry, and the then surviving lawful issue of any his child or children deceased, in equal portions (if more than one), .share and share alike ; such issue of any his child or children deceased, to have, receive and take the same share and portion to which his, her or their parent would have been entitled if living. But if it shall happen that my said son Henry shall depart this life after the decease of my said wife, without leaving lawful issue him surviving, or in case of his death before the decease of my said wife, without leaving lawful issue surviving at the time of her decease, then that they, said Edwin A. Oelrichs, Henry Palmer and Henry Meigs, J"r., the survivors or survivor of them, their successors or successor, in the former case upon and immediately after the death of my said son Henry, and in the latter case upon and immediately after the death of my said wife, convey, assign, transfer, make over, pay and deliver all such last mentioned one-seventh part of my residuary estate (less the deduction last aforesaid), and the proceeds thereof then remaining, and all property and rights of property in which the same or any part thereof shall then be invested, and all interest, income, dividend and profits thereof not previously paid and applied in pursuance of the provisions hereinbefore contained, to the wife of my said son Henry at the time of his decease, if such wife there shall be then surviving, and if there shall be no'such wife surviving, then to my own right heirs and legal representatives then surviving, in the same manner, shares and proportions in which they would have inherited and been entitled to the same if I had survived my said wife and son Henry, had owned and held said last mentioned one-seventh part in my own name and right at the time of my decease, and had died intestate.” * * * * * * * * *
    “ Eleventh. The better to enable the said Margaret'Palmer, Edwin A. Oelrichs, Henry Palmer and Henry Meigs, Jr., the survivors and survivor of them, and their successors or successor, to carry into effect the devises, bequests and directions hereinbefore con-tamed, I do hereby give and grant to them, and such of them as shall at any time be authorized to execute the several trusts hereby created, or any or either of such trusts, full power and authority at any and all times during the continuance of such trusts respectively, in their discretion, to change the investments of the estate and property by them held in trust, or any part thereof, and for such purpose or otherwise to grant, bargain, sell, convey, mortgage, lease, transfer and make over, as they may deem advisable, all or any part or parts of the real estate or personal property which shall be by them so held in trust, and to make, sign, seal, execute, acknowledge and deliver all and every such deeds, conveyances, mortgages, leases, transfers, agreements and other instruments in writing as may be necessary or proper therefor.”

      Alfred Roe and John J. Maoltlin, for the appellants.

      Osborn E. Bright, for the respondent.
   Daniels, J.:

At the conclusion of the trial, the learned judge presiding at the Special Term delivered the accompanying opinion, containing an exposition of the views adopted by him as the law of this case:

“Yan Brunt, J. On the 1st day of February, 1858, John J. Palmer, of the city of New York, died, leaving a last will and testament, by which he devised all his estate, real and personal, to certain persons therein named, to hold the same during the life of his wife Margaret, and pay the income thereof to her; and upon the further trust that, immediately after the death of his said wife, the said trustees should divide the said estate into seven equal parts. The income of each of said parts he directed his said trustees to pay to one of his children during life; and upon the death of any child, leaving issue him surviving, he directed his said trustees to immediately convey, assign, transfer and make over to such issue the said one-seventh part. The said testator also provided, in and by said will, that, the better to enable the said trustees to carry into effect the directions hereinbefore mentioned, that the said trustees should have full-power and authority, at any and all.times during the continuance of the said trusts, respectively, in their discretion to change the investments of the estate and property by them held in trust, or any part thereof, and for such purpose, or otherwise, to sell and convey all or any part or parts of said estate which should by them be held in trust.
“ Margaret Palmer, the wife of the testator, and two of his children, Robert G. Palmer and James H. Palmer, died before the testator, without issue, and unmarried. No division into shares, of the estate of said testator, was ever made by said trustees as directed by said will. On the 16th day of November, 1872, Henry, one of the sons of the testator, died, leaving him surviving a widow and several minor children. That, upon the 1st of July, 1873, the said trustees offered for sale certain portions of the real estate of the testator, which was stricken down to plaintiff at the price of $15,997.75. That the plaintiff, at said sale, paid the auctioneer’s fees, amounting to $225, and also the sum of $1,599.75, being ten per cent of the purchase-price, and signed a memorandum or contract of sale.
“ This action is brought to recover the money so paid and to cancel the said contract of sale.
“ In the case of Furness v. Furness, I held that under a will similar to the one now under consideration, the executors or trustees were bound to make partition of the estate as soon as the debts and legacies were paid.
“In this case it appears that the trustees have neglected to make such partition for the term of fifteen years after the time designated in said will. It evidently was the intent of the testator that each of the seven parts into which he directed his estate to be divided, should be held upon separate and distinct trusts, and that immediately upon the .death of any one of his children leaving issue him or her surviving, the share of such child, so dying, should vest immediately in the issue of such child. The power of sale given in the will was given to the trustees for the purpose of enabling them to make the divisions directed by said will, and also after the said divisions, to change the investment of any separate share. In this case it would appear, that the said trustees having neglected to make the divisions required by said will, the share of said estate belonging to Henry Palmer, upon his death, vested immediately in his children, and that they became tenants in com-moil with said trustees in the whole of said estate. If this view is correct, then the power of sale in the trustees which would enable them to convey the whole title, ceased upon the death of Henry Palmer. Many cases have been cited by the defendant, to show that the court will not allow a trust to fail through the neglect of a trustee; but these cases seem to have no application to the question now under discussion. The trust, by the terms of the will itself, has terminated as to the one-seventh part of the estate, and the cestui que trusts have become tenants in common with the said trustees in said estate. The court, upon a proper application being made to it, would undoubtedly partition the said estate into seven parts, and would transfer one of the seven parts to the children of Henry Palmer; but I am entirely unable to see liow it would be possible for the said trustees, by any deed which they might.give, to divest the vested interest of the children of Henry Palmer in said estate. The deed, therefore, offered by the said trustees did not convey to the plaintiiÍF the clear title to the premises purchased by him, and he is entitled, therefore, to recover back, with interest, the money paid upon such sale.
“ Judgment ordered accordingly.”

He seems to have overlooked the fact that by the decease of two of the children of the testator during his lifetime, the shares of the survivors were increased from sevenths to fifths. The testator provided for the contingency of any of his children dying before himself, unmarried and without issue. In that event' the interest in the estate otherwise designed for them was given to the survivors. Robert and James each died unmarried and without issue, during the lifetime of the testator. That reduced the shares to five; each of the testator’s children surviving him being entitled to the proceeds of a fifth part of his estate, to be set off andassigned according to explicit directions for that purpose given by his will.

"With that correction the views of the learned judge appear to have been well sustained by the facts established in the case ; and his opinion is adopted by this court as a proper exposition of the law for the disposition of the controversy between these parties. Por the reasons there stated, as herein modified, the judgment appealed from should be affirmed, with costs.

Davis, P. J., concurred.

Brady, J.:

The testator, after directing the payment of his debts and the expenses of his funeral, devised all the rest, residue and remainder of his estate, real and personal, effects, property and rights of property whatever and wheresoever, to the persons named, to have and to hold the same as joint tenants, and not as tenants in common, their successors and successor, heirs and assigns forever, upon trust, nevertheless, to take, hold and receive such residue during the life of his wife, and apply the rents, interest, income, dividends and profits, after certain payments and deductions, to her use during her natural life. And upon the further trusts, immediately after the death of his wife, to divide his estate into seven equal parts or shares, to hold each share, and to pay the income thereof to a child (one of his seven children), and, upon the death of such child, to convey such share to his or her issue, if living.

In declaring the trust in relation to such division, the testator directed Ins trustees that, in their ascertaining the amount of his said residuary estate for the purpose of such division into seven parts, they should include in such estate, and compute as part thereof, all and every, the sum and sums of money by him at any time advanced or paid to or for or on account of his seven children thereinafter named, each, any or either of them, and charged to or against them, his said children, respectively, in his own handwriting, in a book of accounts kept by him at his dwelling-house, and marked on the inside of the cover thereof, in his handwriting, “John J. Palmer, number three; ” but that no interest should be computed or charged upon any or either of said sums of money so paid or advanced; and, further, that they, the survivors or survivor of them, their successors or successor, should thereupon take, receive, have, hold, use and dispose of the said seven parts or shares of his residuary estate, and each of such parts or shares severally and separately and the income thereof; and he gave, devised and bequeathed the same and each of them severally and separately, and the income thereof, to, for and upon the trusts, uses and purposes, among others, namely, to take, receive and hold one-seventh part, to be ascertained in the manner mentioned, less* the amount advanced and chargeable thereto, according to the book of accounts mentioned, and to collect, get in and receive the rents, interest, income, dividends and profits, and apply them to the use of the child to whom the share was assigned, during his natural life, and immediately after his decease, leaving issue him surviving, to convey, assign, transfer, malee over, pay and deliver all of the one-seventh part, less the deduction mentioned,' of his residuary estate and the proceeds thereof remaining, to the then surviving child or children of the parent representing such share, and the then surviving lawful issue of any his child or children deceased, in equal portions, share and share alike. There are other provisions in the trusts, but they do not at all affect the question which is to be considered and passed upon in this case.

The trust for each of the children is the same. The will also contained the following clause; “Eleventh. The better to enable the said Margaret Palmer, Edwin A. Oelrichs, Henry Palmer and Henry Meigs, Jr., the survivors and survivor of them, and their successors or successor, to carry into effect the devises, bequests and directions hereinbefore contained, I do hereby give and grant to them, and such of them as shall at any time be authorized to execute the several trusts hereby created, or any or either of such trusts, full power and authority, at any and all times during the continuance of such trusts respectively, in their discretion, to change the investments of the estate and property by them held in trust, or any part thereof, and for such purpose or otherwise to grant, bargain, sell, convey, mortgage, lease, transfer and make over, as they may deem advisable, all or any parts or part of the real estate or personal property which shall be by them so held intrust, and to make, sign, seal, execute, acknowledge and deliver all and every such deeds, conveyances, mortgages, leases, transfers, agreements and other instruments in writing as may be necessary or proper therefor.” The trusts in reference to the wife of the testator failed because he survived her, and Henry Palmer died before the division directed by the will, leaving lawful issue living.

The learned justice presiding at Special Term held that, the trustees having neglected to make the divisions required by the will, the share of the estate to be set apart for Henry Palmer’s benefit upon his death vested immediately in his children, and that they became tenants in common with the trustees, in the whole estate.

If this view be correct, the trustees could make no contract of sale by virtue of any power given by the will without a proper proceeding to have the children mentioned unite with them.

Whether the conclusion thus expressed is right or wrong, is the question which this court is called upon to decide. It will be perceived that the estate vested in the trustees. The testator gave and devised his estate to them to have and to hold the same as joint tenants, their successors, heirs and assigns forever, and by the eleventh clause he gave them full power and authority, at any and all times during the continuance of the trusts respectively, in their discretion, to change the investments of the estate and property so held by them in trust, or any part thereof, and for such purpose or otherwise to grant, bargain, sell, convey, etc., as they might deem advisable, all or any parts of the real estate or personal property, and to make, seal, execute, acknowledge and deliver all such conveyances, deeds, etc., as might be necessary or proper therefor.

The validity of the trusts created is not questioned. The whole estate, legal and equitable, was, by the will and statute of uses and trusts, vested in the trustees, subject only to the execution of the trust. (1 R. 8., 739, § 60; Noyes v. Blakeman, 2 Seld., 567.)

Henry Palmer was a life tenant only therefore, entitled to nothing but the income of the seventh part of the whole estate, which was to be set apart for his benefit, and of his share in the same proportion of the estate, prior to the division to be made, until made. He was from the time of the division to receive the income of one-seventh, provided no advances were made to and charged against him; the income of less than one-seventh if any deductions were to be made for advances affecting his right to the whole, and nothing if the advance exceeded one-seventh of the residuary estate. There can be no doubt that this was the intention of the testator.

There can be no doubt either that he considered it possible that nothing would be due to one or more of his children out of the contemplated seventh part, because he provided as follows: “ Tenth. If it shall happen, that at the time of the division of my residuary estate into seven shares or parts, as above provided, the sum and sums of money by me advanced or paid to, for or on account of any one or more of my said children respectively, and charged to or against him or them severally in said book of accounts above mentioned, shall exceed the one-seventh share or part of my said estate, to which such child or children respectively will then be severally entitled, then and in that case it is my will, and I do devise, order and direct, that the excess of money so advanced paid, and charged to either of my said children, over and beyond said one-seventh share or part of my said estate, shall not be required of or collected from the child or children respectively, to or against whom the same shall be so charged, but I do hereby give and bequeath such excess to such child or children respectively, and each of them.”

Whether, therefore, any income would be payable to any of his children would depend upon the condition of the account as shown by the book to which he referred, and which was to be the controlling guide for the trustees; and whether it would become the duty of the trustees to pay any income to. Henry Palmer, or to convey any estate to his children after his death, would necessarily depend upon the result of an examination of that book, and the application of the rule in making the division which the testator prescribed.

Henry Palmer took no other than a life estate as suggested, subject to the trust, and, therefore, to such defeasance as the advances might create, in whole or in part; and his children took nothing more than the share, intact or diminished as the case might be, the income of which their parent was entitled to receive. The entire estate being in the trustees, subject only to the execution of the trust, the only interest which the children of Henry Palmer possessed was to the one-seventh, or share of their father, when ascertained (see Bernard s.Montague, 1 Merivale, 422; Blwimv. Elwin, 8 Ves., 547), and set apart, subject also to the trust which vested the estate in the trustees, and gave them the power to sell it, if in their judgment they should deem it advisable. The interest itself was not only subordinate to and controlled by the trust, but it was a contingent or limited one, dependent upon the advances made to their parent during the lifetime of the testator. They could enforce the performance of the trust (R. S., 729, § 60, supra), but nothing more, and in that way acquire whatever was their right under the provisions of the will, and their due application to the facts and circumstances disclosed, which limited or controlled them. It follows from the views thus expressed, that the children of Henry Palmer acquired by his death no estate which was independent of the trust, and over which they could exercise .independent control.

It was entirely subordinate to the trusts conferred by the will, which were to be exercised or terminated before they could interfere with the estate vested in the trustees, both by the will and the operation of the statute. It also follows that it was not necessary to consult them, or to unite them with the trustees in the contract of sale which they made to the plaintiff, the trustees having full power and authority, under the will, to make the transfer contemplated. The learned justice at Special Term based his decision-entirely upon the converse of this proposition ; and his conclusions being erroneous the judgment rendered must be reversed, and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Beady, J.:

license: Public Domain

text:
    THE PEOPLE ex rel. HERMAN A. SCHUMACHER, Consul-General of the German Empire, Appellant, v. THE MARINE COURT OF THE CITY OF NEW YORK and ALBERT WEISE, Respondents.

      Treaty of 1871 between United States and Gee-man empire — jurisdiction of consuls under.

    Under tlie treaty of 1871, between Ibe United States and the German empire, the courts of this State have no jurisdiction over an assault and battery committed by the mate of a German vessel aipon a sailor thereof, both being German citizens, on board of such vessel while lying in the port of New York, unless it is of such a character as to disturb the peace and public order.
    ' Appeal from an order at Special Term, denying an application for a writ of prohibition.

      Salomon dé Bwrke, for the appellant.

      Robert W. Andrews, for the respondent.
   Beady, J.:

On the 16th of February, 1875, Albert Weise, a sailor and member of the crew of the German barque “Philip Weyergang,” then lying in the port of New York, by service of a summons, commenced an action in the Marine Court of the city of New York against William Junker, chief mate of said barque, to recover damages for an alleged assault and battery committed on board of said barque on the 6th of February, 1875. Upon an affidavit setting forth this alleged cause of action, the plaintiff obtained an order of arrest, by virtue of which the defendant was arrested. The plaintiff and the defendant were both citizens of the German empire, and members of the crew of said barque, which was a merchant vessel belonging to the empire. After such arrest the master of the vessel, as well as the defendant, the mate thereof, applied to the relator, the consul-general of the German empire at the city of New York, complaining of the arrest, and requesting him to take cognizance of the matter under the treaty between the United States and Germany. The relator thereupon, through counsel, applied to the justice of the Marine Court who had granted the order of arrest to have the same vacated, which was done, and thereupon, on notice to the plaintiff'’s attorneys, further applied at the Special Term of the Marine Court for an order dismissing the suit for want of jurisdiction under said treaty of December 11, 1871. This motion was denied.

The relator then applied to this court for a writ of prohibition to be directed to the Marine Court and to Albert Weise, his guardian ad litem, Dominick Healy, and his attorneys, commanding them to desist and refrain from any further proceeding in the action mentioned. The application was denied, and from the order made thereon the relator appeals. The treaty between the United States and the German empire of December 11, 1871, by article 13, provides as follows: “ Consuls-general, consuls, vice-consuls or consular agents, shall have exclusive charge of the internal order of the merchant vessels of their nation, and shall have exclusive powers to take cognizance of, and determine differences of every kind which may arise, either at sea or port, between the captains, officers and crew, and especially in reference to wages and the execution of mutual contracts. Neither any court or authority shall, on any pretext, interfere in these differences except in cases where the differences on board ship are of a nature to disturb the peace and public order in port or on shore, or when persons other than officers and crew of the vessel are parties to the disturbance.”

The exclusive cognizance relates to “ differences of every kind ” and no court or authority shall on any pretext interfere in these differences, except in cases where the differences are of a nature to disturb the peace and public order in port or on shore.” These provisions clearly cover the case which was commenced in the Marine Court, and deprived that tribunal of jurisdiction. The clause which admits of interferences by court or authority in cases where the differences are of such a nature as to disturb the peace and public order, demonstrate that differences of a violent character were in the contemplation of the high contracting parties, and were to be interfered with only when likely to disturb the public peace, and for the purpose of preventing such an occurrence. Hence if a quarrel arose between two of the crew, and it resulted in blows, unless it were so marked and with its attending circumstances so calculated to disturb the public peace as to demand interference, it would not be within the exception mentioned, giving cognizance to the power of the local authorities to intervene. This being the effect of the treaty it becomes, under the Constitution of the United States (art. 6), the supreme law of the land. For the purpose of preserving the peace, which no government would surrender the right to do, the local courts may exercise their power, but beyond that there is nothing reserved. It is not necessary perhaps to show that this result is in perfect harmony with the rule of international law, which declares that a vessel in a foreign port, for the general purpose of governing and regulating the rights and duties of those aboard, is to be considered as a part of the territory of the nation to which she belongs (Halleck, 112, § 26), because when we determine that the difference which forms the gravamen of the complaint, is one of which the persons named in the treaty shall have exclusive cognizance, the conclusion is inevitable that our courts have no jurisdiction, and cannot proceed against the objection taken to its attempted exercise. (Ex parte Newman, 14 Wall., 152; Peterson v. Brookelman, Marine Court, General Term, reported in pamphlet, opinion by Ch. J. Shea; Constitution U. S., article 6; Halleck International Law, 191, § 19; Nosberg v. Hillgren, 5 N. Y. Legal Observer, 177.) In discussing this subject Halleck says: It therefore follows that with respect to facts happening on board which do not concern the tranquillity of the port or persons foreign to the crew, or acts committed on board while such vessel was on the high seas, they are not amenable to the territorial justice. All such matters are justiceable only by the courts of the country to which the vessel belongs. So firmly is this doctrine incorporated into the practice of nations, that the French regard it as a positive rule of international law, and the French laws do not hesitate to prescribe that when crimes are committed on board a French vessel, in a foreign port, by one of the crew against another of the same crew, the French consul is to resist the application of the local authority to the case. (Halleck, supra, p. 173, § 26, and citations.)

The German empire, in reference to matters which form the subject of civil actions in legal contemplation, has secured, by treaty, the recognition of this doctrine of France, and it is, as we have seen, in accord with the proposition that a private vessel, in merchant service, is, by the rules of international law, regarded as still within, or of the territory of the country to which she belongs; or, in other words, is viewed as a part of the country whose flag she bears. It is not necessary to pursue the subject further, however.

The supreme law of the land having vested jurisdiction exclusively in certain persons named in the treaty, it is clear that the Marine Court did not possess it, and that the prohibition sought should have been accomplished by the necessary process.

The order made at Special Term must, for these reasons, be reversed.

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

Order reversed.


text:
    WILLIAM GOURLEY, Administrator, etc., Respondent, v. JOSEPH CAMPBELL, Appellant.

      Will — conversion of real estate into personalty — when it takes place.

    When it is the intention of a testator that.his real estate shall be converted into a pecuniary fund, to be held by trustees, for purposes indicated in the will, it is deemed to be personalty from the time of the testator’s death, nor is such change prevented by the death of the person entitled- to the proceeds before the execution of the power.
    If the power of sale is contingent, and, upon the happening of the event authorizing it, the object for which it was granted be defeated, by death or otherwise, the sale will not be ordered or allowed.
    Appeal from a judgment of the Special Term construing a will and ordering the appointment of a trustee, and directing him to sell certain real estate.
    The following are the material portions of the will:
    “ In the first place, I desire, will and determine that my executors, hereinafter named, shall collect all sum and sums of money due to me from any person and- persons whatsoever; that they shall close my store and other business and concerns, and settle the same; that from the proceeds thereof they shall liquidate and pay all •debts, dues and demands owing by me to any person or persons whatsoever.
    In the second place, my executors, to be hereinafter named, shall place the proceeds thereof, and all my property, both real and personal, at interest on bond and mortgage, or otherwise, as in their judgment they may .deem best, and the proceeds, rents, income or interest shall be employed and used for the support and maintenance of my beloved wife Elizabeth, and my children, William and Mary and James, and for the education of my said children. * «■ * -x- -x -X -X- -x

      Item. I will, devise and bequeath unto my said children, William and Mary and James, all my estate, both real and personal, of all kind whatsoever, to be equally divided between them, share and share alike, upon the event of the death of their mother, my said wife Elizabeth.”

      Robert Johnstone, for the appellant.

      Gassecly & Brown, for the respondent.
   Beady, J.:

The question presented on this appeal was substantially decided in the case of Hays v. Gourley (8 S. C. [1 Hun], 38). The court held in that case, that, as the whole estate was to be turned-into money, the will was to be construed as a will of personal property; and that, under the statute of distributions, the mother took all the property as the next of kin of the deceased children.

This result was predicated of the legal proposition, that the estate vested immediately in the children upon the death of the testator, subject to the trust. It is said by the appellants, that that adjudication is not conclusive of this appeal, because the parties litigant therein contested on the theory that the real estate had actually been converted into personal estate, and because the doctrine of an equitable conversion had been studiously kept out of view.

The language of Justice Westbeook indicates a different impression. He says : “As the estate was to be turned into money the will is, of course, to he construed as a will of personal property.” The surrogate had decided upon the accounting of the administrator, with the will annexed, that, under the statute of distribution, the mother took all the property of the deceased children as their next of kin. All the property of the testator, subject to the trust, was by his will given to his children. The learned justice presiding at Special Term took the same view, here expressed, of that case, and felt bound by its results. The question, however, if it had not been thus disposed of would meet with a similar fate now. It is quite apparent that the testator intended that all his estate should be converted into personal property. This is manifest from several features of his will. He directs his executors to collect all sums of money due to him; to close up his store and other business and concerns, and to settle the same. He then says, they shall place the proceeds thereof, and of all his property, both real and personal, at interest on bond and mortgage, or otherwise, as, in their judgment, they shall deem best, and employ the proceeds, rents, income or interest for the support and maintenance of his wife and children. He authorizes them, as soon as his children shall respectively arrive at lawful age for the transaction of business, to give each of them not exceeding $1,000, or at the time of their marriage, provided they married with the consent of the mother, if she should then be living. He also intrusted them with the management and control of all his concerns and estate, to manage and employ them for the benefit and behoof of his wife and children. These provisions are inconsistent with the retention of the real estate, as such, and are equally inconsistent with the theory that his particular object in giving to his executor the power of converting it into personal estate was the support and maintenance of his wife and children. His first intention and design was to create a pecuniary fund of all his property. He directs this before any disposition of it is made. It is not until after his direction so to do that he disposes of his estate, and the first intention in reference to that, is to employ the proceeds. The direction to sell is not, therefore, discretionary. It is positive, and in this respect differs from the class of cases cited on hehalf of the appellant, and in which a different result must be obtained from that circumstance. The executors shall place the proceeds of the store and other business and concerns, cmd all his property both real cmd personal, at interest, on bond and mortgage or otherwise, as in their judgment they should deem best, and the proceeds employ for the purposes named. It is the proceeds that must be “ placed ” at interest, and this could only be done by selling the whole estate not in funds. The further provision in relation to the payment of $1,000, is in harmony with this view. The fund to accomplish that direction would be in hand in contemplation of the testator, arising from the nature of his estate as he had left it. It is true that he subsequently devises and bequeaths to his children all his estate both real and personal, of all kinds and nature, but the use of the word real in that relation is not sufficient to overcome the positive provisions expressing this intention that there should be none to descend. It would be repugnant to the intention of the testator to give it such significance, and it could not for that reason be so enlarged in its meaning. The intention must prevail; and when it is that the real estate shall be converted into a pecuniary fund and held by the executors and trustees for the purposes indicated, that estate is deemed to be personalty from the time of the testator’s death, upon the principle of equitable conversion; and if the person entitled to the proceeds die before 'the execution of the power the estate does not change its character but continues to be personal and must be treated as such. (Stagg v. Jackson, 1 Const., 206; Marsh v. Wheeler, 2 Edw. Ch., 157; Bramhall v. Ferris, 14 N. Y., 46; Bunce v. Van der Grift, 8 Paige, 37; Meakings v. Cromwell, 5 N. Y., 136 ; Bogert v. Hertell, 4 Hill, 492; Hayes v. Gourley, supra; Phelps’ Exrs. v. Pond, 23 N. Y., 69 ; White v. Howard et al., 46 id., 162.) In equity, the rule applied to wills is that acts lawfully directed to be done are regarded as done at the time directed. On this principle rests the doctrine of equitable conversion. {Mcunice v. Manice, 43 N. Y., 372, and cases cited.) There are -cases to which the appellant refers which seem to make inroads upon the doctrine stated, but do not. If the power of sale be coupled with a trust but is dependent upon a contingency, and upon the happening of the event authorizing the sale the object in view be defeated by death or other cause, the particular object of the testator being thus destroyed, the sale will not be ordered or allowed. This was the feature of Sharpsteen v. Tillou (3 Cow., 651). The trustees were not directed, in the first instance, to convert the real estate into personal.

In Slocum, v. Slocum (4 Edw., 613), the question was whether the power granted to the executors had not expired, and whether a conversion had not taken place, although the real estate had not been sold. The power to sell was declared a naked power, not imperative on the executors but discretionary. Where the object of the sale is to accomplish a particular design or purpose and that is done, as between the next of kin and the heir, the courts favor the heir. The case of Robinson v. Taylor (2 Bro. C. C., 589) illustrates this. The testator, after giving several legacies, devised the rest of his real and personal estate in trust to sell the real estate and place the proceeds at interest, and thereout and out of the remaining part of the personal property to pay a particular annuity. This is entirely different from a provision declaring that the corpus of the estate shall be immediately converted into a pecuniary fund and all of the distributions be made from it as in this case. The general scheme of the testator in disposing of his property was evolved from the conversion directed. Such, also, is the scope of Hill v. dock (1 Ves. & Bea., 173). Again, where the real estate is to be sold to pay debts,- in aid of the personal estate, and no sale is made because the personal is sufficient for the purpose, a trust in the devisee for the heir was clearly implied. Such is the case of Buggins v. Yates (9 Mod., 122). In Hawley v. James (5 Paige, 447), the chancellor said: "Where the objects of the conversion fail either in whole or in part, there will be a resulting-trust in favor of the heirs. In this case there is no failure of the object of the conversion. There was no object except to convert the estate and make it all a pecuniary fund for investment. It was not to pay debts or legacies, or annuities, but to establish one character for the whole body of the estate, and then from it thus changed and invested to apply its proceeds. The testator may have considered it more advantageous, from any of the many reasons present to his mind, and he had a right to think of it as his judgment or fancy dictated. In Harris v. Clark (7 N. Y., 242), there is nothing in any way militating against the doctrine of equitable conversions. The court held that a fair construction of the will made the sale of the real estate a subject of discretion. In White v. Howard (supra), Grover, J,, said that, “ to constitute a conversion of real estate into personal in the absence of an actual sale it must be made the duty and obligatory upon the trustees to sell in any event. A mere discretionary power produces no such result.” It should be imperative not discretionary. (Slocum v. Slocum, suyjra.) In this case as we have seen the trustees were to sell absolutely, and not in their discretion. The conversion was to be made primarily. Their omission to do it does not therefore affect the question.

The estate being treated as personal from the death of the testator, must necessarily be distributed as such. The trust having vested in this court, the appointment of a trustee to execute it was necessary to carry out the intention of the testator, and should be made upon a proper application therefor.

The plaintiff as the administrator of Elizabeth Hayes, the mother of the deceased children sought in this action a construction of the will and the appointment of a trustee, in place of the original trustees now deceased, to sell the-real estate and the payment to him of the proceeds, as such administrator.

The judgment granted was to that effect, and it was correctly-pronounced for the reasons assigned.

It must be affirmed but without costs.

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

Ordered accordingly.


author: Brady, J.:

text:
    TRENOR W. PARK, Appellant, v. THOMAS B. MUSGRAVE et al., Respondents.

      Injunction — referee to compute damages — extra allowance in action — denial of.

    After an order of the General Term, reversing an order continuing an injunction, plaintiff was allowed to discontinue the action upon payment of costs, and a motion of defendants for an extra allowance was denied. Subsequently an order was made directing a referee to compute the amount of defendants’ damages. Meld, that this was proper.

      Disbrow v. Garcia (52 IST. Y., 655) followed.
    Appeal from an order made at the Special Term, directing a reference to ascertain the damage sustained by the defendants by reason of an injunction granted in this action.

      F. L. Fancher, for the appellant.

      John Sherwood, for the respondents.
   Brady, J.:

The plaintiff obtained ex¶curte an injunction which, after argument upon the order to show cause granted, was continued, but which on appeal to the General Term was dissolved. The plaintiff then applied for leave to discontinue the action upon payment of costs, and the defendants moved for an extra allowance. Both motions were decided in favor of the plaintiff. The defendants then applied for a reference to ascertain their damages occasioned by the injunction proceeding. The motion was granted and from the order therefor the plaintiff appeals. He seems to think, through his counsel, that the decision of the motion for an extra allowance is conclusive upon the present phase of the defendants’ case until reversed, and this proposition is based upon the case of Disbrow v. Garcia (52 N. Y., 655). This view is erroneous.

The reference was granted in that case, but exceptions were taken to the report of the referee and sustained. He allowed counsel fees upon the motion to dissolve, also counsel fees upon the trial and upon appeal, and the taxable costs in the action, but these allowances were held to have been improperly made chiefly, because on a motion for that purpose, an extra allowance had been granted, which, by the order entered, it was declared was intended to cover all allowance of extra costs to be made in any event in the action to the defendants. The order was accepted and the allowance received without objection, and without appeal. It was, of course, conclusive upon the defendants. It was in full, in any event, of all allowances for extra costs. It was the character of the order that made it conclusive. The right to a reference was not questioned in that case and cannot well be in this. The exceptions, if any be taken to the referee’s report herein, will determine the rights and obligations of the parties. The refusal of the court to grant an extra allowance does not affect the right of the defendants to such damages as the laws allow in such a proceeding as this. The right to recover counsel fees for services rendered on the motion to dissolves the injunction, and also on the reference, is established by the decision of the court of last resort. (Rose v. Post, 56 N. Y., 603.) And it has been correctly held that the costs accruing in the action, including the extra allowance awarded by way of indemnity for the expenses of the action, do not affect such special damages as were occasioned by the issuing of the injunction. It may well happen that the extra allowance is totally inadequate to the expenses incurred in efforts to dissolve the injunction, and unless the order granting it is restrictive or prohibitory of their recovery, they may be obtained by a reference it) in the judgment of the referee, they should be allowed.

The motion for an allowance may be upon affidavits; the reference contemplates proofs to be given by which the referee’s judgment is to be affected and guided. The order appealed from, as already suggested, however, is one directing a reference to ascertain the damages, and this we think the defendants were entitled to.

The order made at Special Term, should, therefore, be affirmed, with costs.

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

Order affirmed.


author: Davis, P. J.:

text:
    THEODORE MARTINE, Respondent, v. ANNA LOWENSTEIN and HENRY M. LOWENSTEIN, Appellants.

      Foreclosure suit — when party to may appea/r.

    A party to a suit brought for the foreclosure of a mortgage may serve a notice of appearance at any stage of the action («. g., after entry of judgment), and is then entitled to notice of all subsequent proceedings.
    Appeal from an order of the Special Term denying defendants’ motion for leave to be heard upon exceptions to the report of a referee.

      Samuel J. Oroohs, for the appellants.

      A. J. Va/nderjpoel, for the respondent.
    Notice of appearance after judgment does not entitle the party serving such appearance to notice of any proceedings upon such judgment. {Abbott v. Smith, 8 How. Pr., 463; lynds v. West, 12 Wend., 235; White v. Featherstonhaugh, 7 How. Pr., 357.)
   Davis, P. J.:

This was an action to foreclose a mortgage. The appellants were made parties defendant, as owners of the equity of redemption. They did not appear and defend the action, and judgment was entered against them by default, for want of an answer, on the 14th May, 1872. On the 31st May, 1872, the defendants served affidavits and notice of motion that the judgment be opened, and that the defendants be let in to defend, which motion papers were indorsed, F. W. Townsend, attorney for defendants Lowenstein. No other notice of appearance was served. The motion was heard and denied on the 12th July, 1872, when the defendants, by their attorney, served notice of appeal from the judgment, and from the order denying the motion. Afterward, and on the 25th June, 1873, on the consent of'R. W. Townsend, an order was entered ex f arte, substituting Samuel I. Crooks as attorney for said defendants. The mortgaged premises were sold by a referee appointed for that purpose by the court, and said referee filed his report of said sale with the clerk on the 23d September, 1873. No notice of the filing of such report was given to the appellants or their attorney, and on the 27th of October, 1873, the appellants’ attorney filed with the clerk exceptions to the report of the referee, and served upon him, and upon the attorney for the plaintiff in the action, copies thereof, which were returned to said attorney on the twenty-ninth October following, with the indorsement that they were served too late; that the report was filed more than eight days ago.” The motion that the exceptions be heard was denied, on the ground, as it appears by the memorandum indorsed by the judge on the papers, that the defendants did not appear in the action until after judgment had been rendered by default, and were not entitled, under rule 39 of this court, to file exceptions to the report of the referee. The appearance on the part of the appellants, which was by attorney, was made in a form which has been recognized by the cases as sufficient. (Kelsey v. Covert, 6 Abb., 336 ; McKenster v. Van Zandt, 1 Wend., 13; Baxter v. Arnold, 9 How. Pr., 445.) The service of the motion papers, with the indorsement above stated, was therefore a sufficient appearance in form in the action. Notwithstanding the defendants had no defense to the action, they still had the right to appear therein, for the purpose of preventing any misapplication of the avails of their property, when sold, and to see that a proper surplus was produced and properly applied, and they can, we think, appear even after judgment, for the purpose of taking care of their interests in any subsequent proceedings that must necessarily be taken by the plaintiff. It was the rule in chancery that a party who had appeared in a ease was entitled to notice of such subsequent proceedings as might affect his rights or interest, although he is in contempt, and a bill has been taken, as confessed, for want of an answer. (1 Barb. Ch. Pr. [2d rev. ed.], 78; King v. Bryant, 3 M. & C., 191.) It is difficult to see any sound reason which should preclude a party from appearing at any stage of a foreclosure suit, to supervise proceedings that may affect his interest, yet remaining to be taken in the suit. If this be not permitted, gross abuse highly injurious to him may occur, which he will be powerless to prevent. Rule 39 of this court contemplates and requires service of notice of the filing of a referee’s report upon all parties entitled to notice, and the report does not become absolute and stand as in all things affirmed at the expiration of eight days from the filing, but at the expiration of eight days from the service of notice of the filing of the same. Hence, where no such notice is served upon a party entitled to notice, the report is not affirmed by the rule so as to preclude such party from filing his exceptions at any time. In this case we think the appellants were entitled to notice of the filing of the report, which should have been served upon their attorney, and that their exceptions, although filed more than eight days after the report of the referee was filed, were in time. The motion to bring them to a hearing was therefore regular and it ought not to have been denied. The order of the court below must be reversed with ten dollars costs, besides disbursements.

Daniels and Brady, JJ., concurred.

Ordered accordingly.


author: Daniels, J.

text:
    THE PEOPLE ex rel. FREDERICK S. HIESER, Executor, Appellant, v. THOMAS B. ASTEN and others, Respondents. THE PEOPLE ex rel. WILLIAM MEYER, Appellant, v. THOMAS B. ASTEN and others, Respondents.

      Gha/p. 729 of 1872 — duty of hom'd of assessors to Jtte statement of damages.

    Under chapter 729 of 1872, relating to the change of the grade of Eighth avenue in the city of New York, the board of assessors are required to make and file in the finance department of the city, a just and equitable statement of the amount of the damage, loss or injury which the owner or owners .of buildings fronting on the avenue, and opposite to the improvement, sustained by the change of grade, without reference to any certificate or assessment list received from any source whatsoever.
    Accordingly, held, that where the board of assessors refuses to make and file such statement, on the ground that they had not as yet received from the department of public works, a certificate of the completion of the work or any list of the assessments, a peremptory writ of mandamus should issue, requiring them to hear and determine the relators’ claims and make and file awards, in case the damages claimed or any part thereof appeared to have been occasioned by the improvement.
    Appeals from orders made at the Special Term, denying motions for writs of peremptory mandamus.

      H. M. Whitehead, for relator Hieser. James A. Deerimg, for relator Meyer. William Barnes, for respondent.
   Opinion by

Daniels, J.

Brady, J., concurred.

Orders reversed with ten dollars costs and disbursements, and writs directed to be issued.


author: Davis, P. J.

text:
    HENRY L. ROGERS, Respondent, v. JOHN P. GOULD, Appellant.

      Contract for pv/rchase of stock — statute of frauds — duty of broleer.

    One who gives a verbal order to his broker to purchase certain stock, in pursuance of which the broker purchases the stock, and the same is on the following day-delivered to and paid for by him, cannot insist that the contract is void, on the ground that no part of the stock was delivered and no money paid at the time of giving the order. The delivery by the seller, and the acceptance by the broker, acting as the agent of the buyer, renders the contract valid and binding.
    The obligation of a stock broker,.who has purchased stock for a customer, is to keep at all times on hand or under his control ready for delivery to his cuS' tomer, upon his paying the sum due him thereon, either the particular shares purchased, or an equal amount of other shares of the same kind. (Horton v. Morgan, 19 2ST. Y., 170; Stewart v. Drake, 46 id., 449; Bourse v. Prime, 4 Johns. Oh., 490; S. 0., 7 id., 69; Tmssig v. Hart, 58 N. Y., 435.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Nelson Smith, for appellant. Wm. Henry Anthon, for respondent.
   Opinion by

Davis, P. J.

Beady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    THE PEOPLE ex rel. AUGUSTUS MILLER v. THE BOARD OF POLICE COMMISSIONERS OF THE CITY OF NEW YORK.

      Common-la/w ceni,wrari — what may be inguvred into under — mode of procedure of inferior tribunal may not be.

    Upon a common-law certiorarri it is the duty of the court, in addition to inquiring whether the court had jurisdiction, to examine the evidence also, and determine whether there was any competent proof of the facts necessary to authorize the adjudication, and whether in making it any rule of law affecting the rights of the parties has been violated. (People ex rel. v. Smith, 45 N. Y., 776,777; Peoples. Board of Metropolitan Police, 39 id., 506; People v. Assessors, 40 id., 154.)
    Matters of mere detail in the order or mode of proceeding not violating any rule of law to tlie prejudice of the party ; and matters which are clearly submitted to the judgment or discretion of the inferior tribunal When the evidence presents a case for its exercise cannot be reviewed by certiorari. (People v. Bowrd, of Police, 39 N. Y., 517.)
    Certiorabi to review proceedings and judgment of removal of relator, from the office of sergeant of police.
    The relator was a member of the police of the city of New York. A charge had been lodged against him on the 4th day of February, 1875, in due form, charging him with neglect of duty. This charge was accompanied with a specification stating the particular offense, which, if true, was just ground for removal. On the fifth day of February, a formal notice of the charge, with a copy of the same and of the specification, were served upon him personally, whereby he was notified and required to answer the charge in accordance with, and in the manner required by the rules and regulations for the government of the police force, and that his trial, upon said charge, would take place at a meeting of the board to be held át the office, No. 300 Mulberry street, in the city of New York, on the 10th day of February, 1875, at one o’clock p. m., and continued, as ordered by the board, until concluded.
    The relator admitted, in writing, due personal service of all these papers; and he also afterward signed a separate paper indorsed on said notice charges and specifications, in these words: “ I hereby admit the within charge as specified, and waive trial thereon.”
    On the eighth day of February following, he made a statement addressed to the board, verified by his oath, and accompanied by the affidavits of four other persons, which substantially denied the charge and specification, and which, if true, ought to have secured his acquittal. On the tenth day of February the board met for the trial of the relator at the time and place designated in the notice, and at one o’clock of that day the relator was called but failed to appear, and thereupon the board, as stated in their return, proceeded to hear, in the absence of said Miller (the relator), the proofs and allegations in support of said charges, to wit, “ the herein-before mentioned admission of said Miller of the truth of said charges.” On the twelfth of February the relator presented his petition asking leave to withdraw his admission and for a trial of the charge, and at a meeting of the board on-the sixteenth of February the petition was denied, and the board proceeded to pronounce a formal conviction and judgment of removal.

      William W. Ladd, Jr., for relator. Oharles F. MoLecm, for respondent.
   Opinion by

Davis, P. J.

Daniels, J., concurred.

Lawrence, J., dissented, because the adjudication of the police commissioners was based upon the relator’s confession, which was considered by Judge Lawrence to have been so explained in and by the subsequent papers furnished to the board, as not to justify his- removal.

Judgment affirmed, without costs.


author: Davis, P. J.,

text:
    THE CHATHAM NATIONAL BANK, Appellant, v. JAMES O’BRIEN, Sheriff, Respondent.

      Ohaitel mortgage — agreement that moiipagor may sett property — powm' of court to dvrect a verdict.

    “Where, in an action brought to recover property described in a chattel mortgage, the defendant alleges that the mortgage is void, because the mortgagors were authorized and allowed to sell the mortgaged property for their own benefit, the court cannot direct a verdict for the defendant unless an agreement has been made either in the mortgage itself or between the parties to it, the necessary construction of which permits such sales to be made. (Frost v. Wa/rreni 43 N. Y., 304; Gfczrdner v. McBwen, 19 id., 133; Bdgell v. Han't, 9 id., 313; Gi-iswold v. Sheldon, 4 id., 581; Ford v. Williams, 34-id., 359; Oonkling v. Shelley, 38 id., 860; Mitt&r v. Lockwood, 33 id., 393.)
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court.

      Abbott Brothers, for appellant. A. J. Yanderpoel and B. 8. Green, for respondent.
   Opinions by

Davis, P. J.,

and Bradt, J.. Daniels, J., concurred

with Davis, P. J.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK v. JOHN DOLAN.

      Grandjury — irregularity in summoning jurors for — presumption as to.

    The prisoner, upon his trial, in the Court of Oyer and Terminer, for murder, interposed a plea in abatement, alleging that the grand jury by which he was indicted was irregularly organized, for. the reason that some of its members were not on the list of petit jurors prepared by Douglas Taylor, the commis- ' sioner of jurors. It did not appear by the plea how the names of the'persons not on the list were placed among those to be summoned, nor how, nor by whom, the names of the persons summoned, sworn and acting as grand jurors were drawn. Held, that the plea was properly overruled; that in the absence of all averments upon the subject, it was to be presumed that the names were drawn by some person acting in the capacity of commissioner of jurors, and that he, in form, certified what had been done by him in the execution of that authority to the sheriif.
    It is sufficient, to maintain the authority oi the grand jury to investigate criminal charges and find indictments valid in their nature, that the body acted under color of lawful authority.
    Motion for writ of error to the Court of Oyer and Terminer, to review the conviction of the applicant of murder, with stay of proceedings.

      B. K. Phelps and D. G. Rollins, for plaintiffs. W. F. Howe, for prisoner.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Motion denied.


text:
    ISAAC DAYTON, Public Administrator, Respondent, v. JOHN McCAHILL and others, Appellants.

      Lease — renewal — rights of joint lessees.

    Upon the expiration of a lease containing a covenant for renewal, a new lease was executed to several persons claiming to be entitled thereto; under which one of the lessees therein named collected the rents from the sub-lessees of the premises, no opposition thereto or claim therefor being made by the lessor or any other person or persons.
    In an action by one of the lessees to recover his share of the rents, held, that the person who had received them could not refuse to pay them over, on the ground that the persons to whom the lease had been made were not entitled to receive the same, under the covenant of renewal contained in the original lease. The second lease furnished sufficient authority to collect the rents, and, at the same time, imposed the obligation upon the party receiving the same, to pay over to the other lessees, in said renewal mentioned, their respective portions thereof. (Niekolson v. Knowles, 5 Mad., 47; Rixsony. Samond, 2 B. & Aid., 310; Sardman v. Wilcox, 9 Bing., 38»; 23 E. C. L., 626; Roberts v. Ogilby, 9 Price, 269; Grosbie v. Leary, 6 Bosw., 312; Merrittv. Millard, 10 id., 309; affirmed, 4 Keyes, 208; Ross v. Curtiss, 31 N. Y., 606; Aubery v. Visite, 36 id., 47.)
    Appeal from a judgment recovered in favor of the defendant John McCahill, dismissing the plaintiff’s complaint as to him, without costs, and in favor of the plaintiff against Virginia P. Kelly, as executrix, for $5,538.55, besides costs, in an action for an accounting.

      Moses Ely, for appellants. Thomas Brachen, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed.


text:
    EUGENE N. ROBINSON and others, Respondents, v. JOHN NORRIS, Appellant.

      Stock broker — commissions paid on borrowing money for principal — duty of principal as to — loam by broiccr himself.

    Where a broker,- authorized by his principal to borrow money in order to carry stocks for him, renders an account to him, by which it appears that in borrowing money he has been compelled to pay to other persons as commissions sums exceeding the amount allowed by 2 Revised Statutes (5th ed.), 979, for effecting loans, it is the duty of the principal promptly to object to the payment of such commissions, and in case he fail so to do, he cannot, in an action by the broker to recover a balance due to him, insist that such payments were illegal and unauthorized.
    Where, however, the broker is himself the lender of the money, he cannot charge a rate of interest beyond that allowed by statute, and the assent of the customer to the payment of such excess of interest, cannot affect the operation of the laws forbidding usury.
    ■ Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      Thomas Oorlebt, for appellant. JohnE. Burrill, for respondents.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Judgment affirmed.


author: per Ouriam.

text:
    HERMAN H. EISNER, Respondent, v. NANET HAMEL and others, Appellants.

      Attorney — when cha/rged with costs of motion.

    Defendant’s attorney applied for an order dismissing the complaint herein, for want of prosecution, on the ground that the parties had, by a collusive agreement, settled the suit, in order to deprive him of his costs. The motion was denied, without leave to renew. Subsequently, defendant’s attorney applied for leave to renew the motion, which was refused. Held, that as the motion was made by the attorney for his own benefit, and not for that of his client, that the costs of the motion were properly imposed upon him.
    Appeal from an order denying leave to renew a motion, and imposing costs on tbe attorney applying for such leave.

      Henry H. Morange, for appellants. 8. 8. Swain, for respondent.
   Opinion

per Ouriam.

Present — Brady and Daniels, JJ.

Order affirmed, with costs.


text:
    JAMES G. POWERS and another, Appellants, v. ANTON GROSS, Respondent.

      Costs — Code, §§ 30Aa/nd 305.
    Where, upon the trial of an action brought to recover damages for the wrongful conversion of personal property, alleged in the complaint to be worth $500, evidence is given tending to show that it was worth more than $400, but the jury bring in a verdict in favor of the plaintiff for thirty-five dollars only, held, that the defendant is entitled to recover costs.

      Seaman v. Gleckner (10 S. C. [3 Hun], 119) followed.
    Appeal from an order made at the Special Term, denying a motion to readjust costs, and to set aside the taxation of costs by the clerk in the defendant’s favor.

      Estes <& Barnard, for appellants. J. J. Perry, for respondent.
   Opinion by

Davis, P. J.

Brady and. Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Brady, J.

text:
    WALTER S. PIERCE and others, Appellants, v. EDWARD H. MORRISON and others, Respondents.

      Arbitration — authority of one pa/rtner to consent to — oma/rd — presumption in fa/oor of.

    Although the weight of authority may be in favor of the rule, that one partner cannot bind his copartner by a submission to arbitration (Morse on Arb., 7), yet any manner of actual authority given by one partner to his copartner, will be sufficient to bind the firm. It is enough, whatever its form, if it contain a distinct expression of the intent, to allow the partner acting, to do it for him. (Morse, supra; Mackay v. Bloodgood, 9 Johns., 285; Rand, on Arb., 20; McBride v. Hagan, 1 Wend., 326.) The non-signing partner, by consenting to and authorizing the signing of the other, and by subsequently ratifying the deed thus done by act and words, renders the submission valid. (Harrington v. Higha/m, 15 Barb., 527.)
    It will be presumed that the arbitrators have acted within the terms of the submission unless the contrary appears. (3 Phil, on Ev. [Cow. & Hill’s Notes], 1027; Morse on Arb., 179.)
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      J. S. L. Oummvns and A. II. H. Dcmson, for appellants. Thomas Allison, for respondents.
   Opinion by

Brady, J.

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

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


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    In the Matter of the Petition of G. D. S. TRASK, Respondent, v. THE PEEKSKILL PLOW WORKS, Appellant.

      Ohapter 960 of 1867, § 2 — appraisal of stock under — interest.

    Where, upon the application of a stockholder, who objects to the consolidation of the corporation of which he is a member with another, appraisers are appointed, under section 2 of chapter 960 of 1867, to estimate and certify the value of his stock at the time of his dissent, the value of the stock being unknown and it not appearing to have any market-value, heldthat as his claim partook of the nature of an unliquidated account, he was not entitled to interest upon it until the report of the appraisers, which established its value.
    Appeal from an order made at the Special Term, confirming the report of appraisers, appointed to estimate and certify the value of the stock of the respondent at the time of the consolidation of the Peekskill Plow Works with the New York Plow Company.

      E. Luther Hamilton, for apipellant. Henry F. Pultzs, for respondent.
   Opinion by

Brady, J.

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

Report modified, and as modified affirmed, without costs of the appeal to either party.


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    CHARLES SCHULTZ, Respondent, v. CLARISSA L. CRANE and others, Executors, Appellants.

      Guarantee — how construed.

    A guarantee is a mercantile contract, and is to be construed so as to give effect to whatever is fairly presumable to be the intention and 'understanding of the parties, and not according to any strictly technical nicety. (Story on Cont., § 854; 2 Pars, on Cont. [5th ed.], 5.)
    Where a mortgage was assigned to the plaintiff to discharge a prior indebtedness, under the following agreement: “Due Charles Schultz, $2,500, to be paid in mortgage, said mortgage to be guaranteed,” held, that the agreement was that the payment of the mortgage should be guaranteed, and not merely, that it was a charge upon the land described in it. (Ovrtis v. Smallman, 14 Wend., 281; OookeY. Nathan, 16 Barb., 842.)

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Trwmcm E. Baldwin, for appellants. George W. Carpenter, for respondent.
   Opinion by

Brady, J.

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

Judgment affirmed, with costs.


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    HENRY E. P. SUTTON, Appellant, v. GEORGE T. M. DAVIS, as Executor, etc., Impleaded, Respondent.

      Attachment — reference.
    Before an attachment can issue against a party for a failure to comply with a judgment or order of the court, what he can properly be required to do must be distinctly settled and ascertained. This may either be done by the court itself, on the hearing of the application for the attachment, or a reference may be ordered for that purpose.

      People v. Alexander (10 S. C. [3 Hun], 211); Matter of Bohm (11 S. C. [4 Hun], 558) followed.
    Appeal from an order denying a motion for an attachment, and ordering a reference to ascertain the amount due from the defendant.

      A. J. Reguier, for appellant. Moses Ely, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    KATE B. HOWLAND, Respondent, v. LAURA S. TAYLOR, Appellant.

      Attorney — protection of.\ Try courrt, upon application of client to change,
    When application is made by a client for leave to change his attorney, no professional misconduct on his part being alleged, and it appearing to the court, that the attorney has advanced large sums of money in the progress of the case, relying for compensation upon the interest of the client in the subject-matter of the action, the court will require the client to pay the amount due, or, in case he is unable to do so, to execute to the attorney a present assignment of so much of his interest in the subject-matter of the action, as may be necessary to insure the payment thereof.

      Appeal from an order made at the Special Term, directing the substitution of'Messrs. Wingate & Cullen as attorneys for one of the defendants herein, in the place of Rufus F. Andrews.

      Rufus F. Andrews, appellant, in person. Wingate ds Cullen, for respondent.
   Opinion by

Brady, J.

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

Order modified, and as modified affirmed.


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    JOHN KNEIB, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Ordinance — publication of.

    Where ordinances are required to be published before they go into effect, this requirement is essential and the publication must be made in the designated mode. (Dillon on Munic. Corp., § 265.)
    Certiorari to the Court of Special Sessions to review the conviction of the plaintiff in error, of the misdemeanor of keeping and exposing for sale, adulterated milk.

      Lawrence & Waehner, for plaintiff in error. - B. K. Fhelps, for defendants in error.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred in the result for the reason that the evidence was not sufficient to justify the conviction.

Judgment reversed.


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    ROBERT MARTIN, as Executor, Appellant, v. CATHERINE N. E. HICKS, Respondent. CATHERINE N. E. HICKS, Respondent, v. ROBERT MARTIN, as Executor, Appellant.

      P&rpetuating testimony of witness — right of pa/rty.

    The perpetuation of the testimony of any witness within this State, by any party to o, suit, is a matter of right in cases wliere the facts required by the statute are shown to the proper court or officer, and the application appears to be made in good faith.

      Appeal from an order denying a motion to vacate an order made in the above entitled actions, to perpetuate the testimony of a witness.

      Joseph Larocque, for appellant. John A. Wright, for respondent.
   Opinion by

Davis, P. J.

Bradv and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    JAMES BIGLER and others, Respondents, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.

      Wraud — what evidence propen' to establish.

    Appeal from a judgment in favor of the plaintiffs, entered on a verdict directed by the court.
    This action was brought to recover the balance, alleged to be due from the defendant to the plaintiff, for lumber and timber delivered to the department of docks, and used in the construction of docks.
    The complaint is upon a contract made between the plaintiffs and the department of docks. The contract contains no safeguards to protect the city against the delivery of unmerchantable and worthless material, except what is contained in the clause providing, that all material delivered under it shall be “ subject to the inspection and approval of the superintendent of repairs and supplies of the department of docks.” The defendants, by their answer, alleged that the materials furnished by the plaintiffs were unfit and improper to be used in the docks, and were unmerchantable; and that, with full knowledge of such facts, the plaintiffs fraudulently procured the certificates of inspection and approval set forth in the complaint. The answer also alleges that the plaintiff did not furnish the timber and lumber required by the contract, as to size and quality, but furnished an inferior quality, and fraudulently caused the same to be certified to the defendants, as being the kind of materials and supplies called for by the contract, and alleges damages, in consequence of such fraud, in excess of the amount due to the plaintiffs under the contract, which the defendants claim to recoup against the plaintiff's. The plaintiffs took issue as to the alleged recoupment by reply.
    Upon the trial,’evidence offered on the part of the defendants to show that the timber and lumber were bad and of an inferior quality was rejected, on the ground that the contract did not call for merchantable lumber and timber, or for any particular quality of those articles, and that defendants were precluded from showing their quality or defects, because they had been accepted by the officers of the dock department. The General Term held, that this was error. That for the purpose of establishing tire alleged fraud, it was important for the defendants to show that the timber and lumber delivered under the contract were not only not in compliance with its terms, but were unfit for the uses of the dock department. That this was a necessary element in the defense of fraud, and it was also one, which, if proved with sufficient clearness, and to such an extent as to satisfy the jury that the lumber and timber delivered were so worthless and unfit for the use of the docks, by reason of being rotten, shaky, wavy and unmerchantable, and by reason of deficiency in size, that these facts must have been known from simple inspection by the plaintiffs and the officers of the dock department, and would have justified the jury in finding collusion between the plaintiffs and the officers, sufficient to have proved the defendants’ allegations of fraud in making the certificates. That it was altogether too narrow a view of the case, to hold that the defendants were precluded from going into any facts material to show the alleged frauds, because such facts would not be allowable as a defense to the contract if no fraud were alleged or set up.
    The General Term further held, that the testimony of those experts who had examined the docks in which this lumber was put, on the subject of the quality and fitness of the material with which such docks were constructed, and the size of the timber and lumber used, was competent to lay before the jury in connection with other evidence identifying the timber and lumber, with greater or less force, as that delivered by the plaintiffs, for their consideration.

      James M. Smith, for appellants. E. L. Fanoher, for respondents.
   Opinion by

Davis, P. J.

Daniels, J., concurred. Beady, J., did not take part in the decision.

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


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    CHARLES A. LEWIS and another, Respondents, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Appellants.
    Appropriation— expendiim'e in excess of — when a defense.

    Appeal from a judgment, in favor of the plaintiff, entered on a verdict directed by the court.
    This action was brought to recover the sum of $548.38, being the price of a quantity of fish delivered by the plaintiffs to the department of public parks for its use. The deliveries were made daily between the 30th July, 1873 and the 1st January, 1874, upon two orders, in writing, of the department of public parks, given to the plaintiff, for the delivery of seventy-five pounds of fish per day, at seven cents per pound. The bills of the fish were presented monthly by the plaintiffs; and it appears that the bill from June first to September thirtieth, amounting to $267.20, had been audited and allowed by the officers of the department of public parks, and that another bill, from October to and including the 31st December, 1873, amounting to $280.98, had also been so audited and allowed, and in their certificates of audit and allowance the officers of the department certified “ that the articles named in the said bills have been received, in good condition, by the department, solely for its use, and were necessary for the lawful uses and purposes of the said department, and that the prices charged therein are reasonable and proper, and that the amount of said bills does not exceed the unexpended balance of the appropriation duly made to the said department therefor.” The answer denied none of the allegations of the complaint, but set up that the sum of $487,966 was appropriated to the department of the public parks, and that prior to the 13th February, 1874, that sum had been paid out and expended, in paying claims lawfully

      incurred and chargeable to and payable from said appropriation for the year 1873, except the sum of $54.64; and the answer insisted that “ the department had no power or authority to incur any expense, for any purpose, in excess of the appropriation made for such purpose, and that the claim of the plaintiff, if incurred, had been incurred in violation of the aforesaid provision, and in excess of such expense as made chargeable by law.”
    The General Term held, that it was incumbent on the defendants, if they wished to assert that the department had exceeded its authority in incurring the expenses, to have shown upon the trial that the amounts paid out subsequent to January 1, 1874, were paid upon claims which existed, or were prior in right and obligation to those of the plaintiffs, and that as they had failed to show this, a verdict was rightly directed in favor of the plaintiffs.

      D. J. Deem, for appellant. W. H. Townly, for respondents.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.'

Judgment affirmed.


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    GEORGE OPDYKE, Respondent, v. JOHN S. PROUTY, Appellant.

      Miidenee — Counter-claim — lease — damage because of want of repair of demised premises.

    Appeal from a judgment in favor of the plaintiff, entered upon the v.erdict of a jury.
    This action was brought to recover rent unpaid, and for damages sustained by the failure of the defendant to surrender the demised premises in the condition, in which the plaintiff was entitled to receive them at the expiration of the lease. The ease on the part of the plaintiff was satisfactorily proved, and no question was made as to the validity of the demand made by him. But the defendant insisted upon an allowance, by way of counter-claim, for damages sustained by injuries to his stock from water in the subbasement, and from a water pipe extending from the roof through the apartments occupied by him, to the street sewer. His claim was rejected as not the proper subject of a counter-claim, and his counsel excepted to the decision, by which that disposition of it was made.
    The lease from the plaintiff to the defendant was in writing, subscribed by the parties, and it contained no agreement or covenant by which the risk of injury to the defendant’s goods from water, was imposed upon, or assumed by the plaintiff. The foundation of the counter-claim, as it was asserted in the answer, was that the plaintiff owned the building containing the demised premises, and that the leader and pipes extending from the roof to the sewer had been negligently constructed, improperly connected, and of a size wholly insufficient, in consequence of which the water overflowed from them and the pipes and sinks connected with them, into the defendant’s premises, causing great injury to his goods.
    The General Term held, that as the defendant took the premises as they were when the lease was made, and agreed to pay the rent reserved for their use in that condition, if his goods were injured by such use, no obligation rested upon the plaintiff to recompense him for such injury. The loss was his own, and the risk of it had been assumed by him from the manner in which the premises had been taken. (Taylor’s Land, and Tenant [2d ed.], §§ 327-329, and cases referred to ; Oleves v. Willoughby, 7 Hill, 83; Jaffe v. Harteau, 56 N. Y., 398; Lochrow v. Horga/n,, 58 id.,- 635.) That as the evidence failed to show any negligence or lack of proper care or precaution on the part of the plaintiff, the defendant was not entitled to recover. That, though it was not intended to be affirmed that the reason given by the court for the rejection of the counter-claim was in any respect erroneous, yet even if it were, the decision made was fully justified by the facts in the case, which were all before the court, and that a correct decision would not be reversed because it may have been founded upon a wrong reason. (Monroe v. Potter, 22 How., 49.)

      Morris & Hillhouse, for appellants. Livingston K. Miller, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


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    GEORGE E. PHELAN, Appellant, v. HUGH A. COLLENDER, Respondent.

      Trade mark — use of name.

    Appeal from an order of the Special Term, denying a motion for an injunction, pendente lite.

    The defendant is the survivor of the firm of Phelan & Oollender. On the decease of his partner, he purchased of his executors all their right, title and interest in and to, and all the right, title and interest of the said Michael Phelan, prior to his death, in and to the fixtures and personal property of every description, in the building occupied by the firm, and all the letters patent owned by the firm or in which the firm had any interest, and in and to all trade marks used by the late firm. The leases of the places of business occupied by the late firm were assigned to him by the executors, and he has since carried on' the business of manufacturing billiard tables, describing himself in his business card, advertisements and business transactions as “ H. W. Oollender, successor to Phelan & Oollender,” and describing his billiard tables as “Phelan & Collender’s Standard American Tables.”
    The plaintiff, a son of Michael Phelan, is also engaged in the manufacture of billiard tables, and he alleges that the defendant, by assuming to use the words “ successor to Phelan & Oollender,” and to describe his tables as “ Phelan & Oollender’s Standard American Tables,” is injuring his business, by inducing customers of the late firm, who would otherwise have dealt with plaintiff, but who have been misled by the use of such name, to deal in billiard tables and articles pertaining thereto with defendant.
    The General Term held, that the plaintiff’s right of action did not rest upon his relationship to his deceased father, nor upon any right or interest in the concerns of the late firm, but solely on the ground that his name was Phelan, and that he was engaged in the business of manufacturing and selling billiard tables, and that his business was injured by the use of that name by defendant, in connection with his business; that any other Phelan, who happened to be in the same business, would have the same legal right to enjoin the use of the name by defendant, and could maintain an action for that purpose if plaintiff could do so; and that as he did not allege that the defendant had used the name Phelan in such a way as to make it appear to be that of plaintiff himself, or had resorted to other artifice, to induce the belief that the establishment of defendant was the same as that of plaintiff, or to mislead customers to purchase of him under the belief that they were buying of plaintiff, or were buying articles of plaintiff’s manufacture, he was not entitled to an injunction.

      Richard O’ Gorman, for appellant. M. Nolan, for respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs, besides disbursements.


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    ROBERT M. CUSHMAN, Respondent, v. WILLIAM R. MARTIN, Appellant.

      Tax — assumption of — ■ liability of person receiving money to pay.

    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.
    The plaintiff conveyed certain real estate to the defendant’s wife, and covenanted in the deed, that it was free from incumbrance. At that time it was subject to an unpaid tax of $352. The defendant, having applied to the plaintiff for money to pay this tax, received from him two checks for the amount of the tax upon the agreement, that he, defendant, would pay it off within a few days. This, however, he wholly failed to do. In the mean time Mr. Kittredge, from whom the plaintiff purchased the property, and who was liable for the payment of the tax, paid it off.
    The General Term held, that, as Kittredge was liable for the payment of the tax, he would have been bound to pay the amount of it to the plaintiff, if the defendant had applied the money received by him to its extinguishment, as he agreed to do; and for that reason, as well as the circumstance that the plaintiff was bound by his. deed to the defendant’s wife to pay it, he had sufficient interest in the subject-matter to support the agreement made with him by the defendant; that merely delivering the money to the defendant for the payment of the tax, did not extinguish the plaintiff’s covenant against incumbrances contained in his deed. Nothing less than payment, or the acceptance of the amount in satisfaction by the wife of the defendant would be sufficient for that purpose.
    It appeared that the defendant’s wife had sold the property to another person, who assumed to pay the taxes upon it, including the tax in controversy in this case. Held, that this did not release the plaintiff from liability to her under the covenant in his deed. By a sale of that nature the amount of the taxes to be paid would be deducted from the consideration, and, as between the parties to the conveyance, would be equivalent to a payment of them by the grantor, and could have no effect upon the liability of the person ultimately bound for payment, by reason of such a covenant as the plaintiff made when he conveyed the property.

      Charles Jones, for appellant-, A. K. Hadley, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., concurred.- Brady, J., concurred, on the ground that defendant’s remedy was against the grantee of his wife, to whom the property was sold subject to the tax.

Judgment affirmed.


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    JOHN S. PROUTY, Respondent, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD COMPANY, Appellant.

      Supplemental complaint — consolidation of corporations — acts authorizing, need, not l>e specifically alleged,.

    . Appeal from an order of the Special Term, denying a motion to strike out a supplemental complaint, and to strikeout portions thereof as irrelevant, or to have certain portions made more definite and certain.
    This action was brought against the Michigan Southern and Northern Indiana Railroad and others, to compel that corporation to apply its future net earnings to the payment of dividends upon its preferred stock.
    Hpon an appeal from an order confirming the report of a referee, it was decided by the General Term of this department (8 S’. O. [1 Hun], 655) that the action could not be maintained for the reason, that the corporation issuing the stock had ceased to exist, having become merged in a new corporation which had assumed all the obligations of its predecessors. Subsequently an order was made allowing the plaintiff to file a supplemental complaint, bringing in the Lake Shore and Michigan Southern Railroad Company as defendant. Upon this appeal it was held, by the General Term, that it was not necessary for the plaintiff to recite the specific acts of the legislature at length, or their several titles in the complaint. That it was sufficient for him to allege generally the consolidation of the defendants under the laws of the several States.

      Matthews da Foley, for appellant. Birdseye, Gloyd da Bayliss, for respondent.
   Opinion by

Davis, P. J.

Brady and Daniels, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    SARAH BROWN, Respondent, v. JOSEPH CROMIEN and others, Appellants.

      District Oou/rt in city of New York —jurisdiction of.

    Appeal from an order of the Special Term, continuing an injunction.
    This action was brought to restrain the defendants Liddy, from prosecuting proceedings, instituted by them before one of the district justices of the city of New York, against the plaintiff for forcible entry and detainer, under the provisions of the act entitled, “ Summary proceedings to recover the possession of land in certain cases ” (2 R. S., 507), to remove the plaintiff from the possession of certain premises in the city of New York, into which she had forcibly entered. The General Term held, that although the Revised Statutes (2 R. S., 510, § 18) expressly conferred jurisdiction over proceedings of this character upon the district justices, yet as section 77 of the act entitled, “An act to. reduce the several acts relating to District Courts of the city of New York into one act ” (Laws of 1857, chap. 344), expressly enumerated proceedings for the summary removal of tenants, provided for by article 2, title 10, chapter 8 of Revised Statutes, but entirely omitted the proceedings under article 1 of the same chapter, relating to forcible entry and detainer, it was a matter of grave doubt, whether any jurisdiction over proceedings of the latter character now existed .in the District Court. It was therefore considered best to retain the temporary injunction until the trial of the action.

      John Goodlet, for appellants. George W. Lord, for respondent.
   Opinion by

Davis, P. J.

Bradt and Daniels, JJ., concurred.

Order affirmed, without costs to either party.


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    In the Matter of the Petition of M. LEGENDIE, to Vacate an Assessment, etc., Respondent, v. THE MAYOR, Etc., Appellant.

      Practice — appeal.

    Appeal from an order changing the number of the petitioner’s lot, from 2,168 to 2,163, in an order made on the 13th of October, 1873, vacating an assessment. The change was made to correct a mistake, which was shown to have been made in the number of the lot intended to be relieved. It appeared that' the proofs were materially defective upon the hearing which resulted in the order vacating the assessment, and for that reason the correction of the mistake was opposed. The objection, however, was disregarded, and the mistake corrected. No appeal was taken from the order by which the assessment was directed to be made. The General Term held, that it was to be assumed that the court intended that the petitioner should be relieved from the assessment, he complained of as unlawful, and that was upon the lot represented by the corrected number; that all that was done by the order appealed from was to rectify this mistake; that if the appellant desired to procure a review of the first order it must appeal from that.

      William, Barnes, for appellant. Herbert A. Shipman, for respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    WILLIAM C. DICKEL, Appellant, v. THE MAYOR, Etc., Respondent.

      Armory and chill room — request for — what sufficient.

    Appeal from a judgment in favor of tbe defendant, entered upon a verdict directed by the court.
    The plaintiff claimed to recover rent which became due under a lease, which was executed by virtue of a resolution of the board of supervisors, and by the terms of which, the premises described, were hired for an armory and drill rooms. It did not appear that any demand, application -or request was made for the rooms except that contained in a letter from Major-General Shaler, which did not particularize any troops or regiment. The General Term held, that this request was not a compliance with the provisions of the one hundred and twentieth section of the military code (Laws of 1870, p. 248), and the lease was, therefore, made without authority, as was shown in the cases of Fallon v. The Mayor, and Ford v. The Mayor (reported in 11 S. O. [4 Hun], at pp. 583, 587).

      John A Godfrey, for appellant. William G. Whitney, for respondent.
   Opinion by

Brady, J.

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

Judgment affirmed, with costs.