author: DaNiels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. THE METROPOLITAN TELEPHONE AND TELEGRAPH COMPANY, Appellant.

      Obstruction of a street — right of the people to bring an action to abate the nuisance — when it should be tried before a jury — right of a telegraph company to erect poles in a street — 1848, chap. 265, as amended by chap. 471 of 1853 —judgment abating a nuisance — when the verdict of the jury must specify the unlawful structure, or the unlawful portion thereof.

    This action, was brought by the people against a telegraph company, incorporated under the general law of the State, to have certain poles recently set up by it in Twenty-first street, in the city of New York, adjudged to be a public nuisance, and to have the said nuisance abated and the poles and structures removed, and to have the defendant enjoined from erecting more poles or structures, and to recover the damages already sustained by the plaintiff. The complaint alleged that the telegraph Doles had been improperly erected in the street and interfered with its use as a public highway.

      Held, that the people could maintain the action.
    That even if the people could not maintain it, yet as the defect appeared upon the face of the complaint the objection was waived by the failuré of the defendant to raise it by demurrer; that if the defect did not appear upon the face of the complaint, the objection should have been taken by answer.
    The action was noticed by the plaintiff for trial at a Special Term as an equity cause. A motion by the defendant to strike the cause from the Special Term calendar and send it to a jury was granted, and the action was sent to and tried at the circuit before a jury.

      Held, that the action was properly tried before a jury, as it was an action to abate a nuisance, and an issue of fact was joined therein.
    That even if it should have been tried at a Special Term the defendant would be precluded from raising the objection by reason of the fact that the action was tried before a jury at its instance and upon its motion.
    The defendant was authorized by the acts under which it was incorporated (1848, chap. 265, and 1853, chap. 471), to construct lines of telegraph over and along streets and highways, and to erect the poles and fixtures necessary to enable it to transact its business.

      Held, that the defendant was not limited to the use of such poles as were not of greater size than such as was absolutely necessary for the transaction of its business, but that it was entitled to use such poles as were reasonably sufficient and properly adapted to the fixtures and lines they were to maintain, and over which its business was to be transacted; but they were to be so constructed as not to incommode the public in the use of the street. '
    Evidence was given tending to show that the walk inside of the line of poles varied in width from six to seven, and from eight to nine, feet; that this space was insufficient for the free passage of persons sometimes meeting upon the walk; that the poles were set inside the curb and varied in their distance from each other from 128 to 166 feet; some of them being larger in diameter than others. The jury rendered a verdict in favor of the plaintiff for six cents damages, upon which a judgment was entered adjudging the poles to be a public nuisance and directed the same to be abated.

      Held, that as there was nothing to show whether the jury regarded all, or only some of the poles, as unnecessarily erected, or of unnecessary size, the judgment, in so far as it directed the removal of the poles, was unauthorized. To authorize the court to interfere with the existence of the poles there should have been a finding in some form showing which of them and to what extent they exceeded the necessary bounds prescribed by the statute.
    That even if the jury intended to find that all of the poles were unnecessarily or improperly erected, yet the damages which they found to result from the injury were so trifling in their amount as to deprive the action of every serious attribute which could be made the subject of equitable complaint.
    Appeals from a judgment, recovered upon the verdict of a jury which directed the removal of telegraph poles erected upon the southerly side of Twenty-first street, from Fifth to Sixth avenues, in tbe city of N ew Y ork, as nuisances, and from orders denying motions for new trials, and other orders relating to certain other proceedings in the action.
    This was an action to restrain the completion of a telephone line in Twenty-first street, in the city of New York, to remoye the incomplete line as a nuisance, and to restore the street to its original condition.
    It was noticed for trial by the plaintiffs at the Special Term as an equity cause, where the defendants made a motion' to strike the cause from the Special Term calendar, and send it to a jury. On a hearing this motion was granted, and the action was “ sent to the appropriate branch of the court for trial by a jury.”
    The aetion was then noticed for trial at the circuit by both parties, a jury was impanneled, and after the plaintiffs’ opening, defendant moved to dismiss the complaint, upon the ground, among others, that the case was improperly brought on for trial at the circuit.
    The court denied this motion.
    The jury, under the charge of the court, returned a verdict for the plaintiffs for nominal damages, and upon that verdict the court adjudged the structure a nuisance, and ordered its removal.
    The structure having been completed pending the action, the plaintiffs did not move for any preventive relief.

      Burton JV. Harrison, for the appellant.

      L. E. Chittenden, for the respondents.
   DaNiels, J.:

The scope of the action, as it was set forth in. the complaint, included both a legal and equitable cause of action, and as they arose out of the same transaction, it was in that respect a proper pleading under section 484 of the Code of Civil Procedure. By the complaint it was alleged that the telegraph poles had been improperly erected in the street and incommoded and interfered with its use as a public highway in the city of New York. And if those allegations were sustained by evidence as they wére made in the complaint, a right of action for damages as well as for the abatement and removal of the poles would be made out and established in the plaintiffs’ favor. For a purpresture or unauthorized appropriation of a portion of the street would in that case be made, and for its correction and removal an action of this nature would afford the proper remedy. And the right to maintain it would not be restricted to the class of cases heretofore provided for by statute. (2 N. Y. Statutes at Large, 343; Code of Procedure, § 454.) 'For the facts, as they were set forth, would be sufficient to entitle the party complaining to resort to a court of equity for the removal of the unlawful obstructions. Its jurisdiction in this respect has been clearly defined and well sustained. It arose ont of the greater efficiency of courts of equity in applying prompt and effectual remedies for the correction of such wrongs. (2 Story Eq. [12th ed.], § 921, 922; § 924; Hilliard on Injunctions, 269 ; Knox v. The Mayor, 55 Barb., 406.) And as the people are directly interested in maintaining and preserving the free and unobstructed use of a street, an action to remove and restrain the unlawful appropriation of a portion of it may be brought in their name. They are the party in interest, and under section 449 of the Code may bring and- maintain such an action. And for that reason actions of tjiis character have heretofore been prosecuted and sustained in the name of the people. (People v. Vanderbilt, 26 N. Y., 287; People v. Macy, 62 How., 65.)

Ordinarily, it is true, these actions have been heretofore brought by the attorney general, but when that has been done, it has been by him as the representative of the people of the State, and depended entirely upon their right to redress. (Atty. Gen. v. Cohoes Co., 6 Paige, 133; Ang. on Highways, § 280; People v. Vanderbilt, supra, 297.) And as the actions in that form were dependent upon the interest of the people in the subject matter of the controversy, it is clear, under the Code, that instead of resorting to or following that form, the action may now be in the name of the people, and as such lawfully prosecuted, bv virtue of the authority vested in the attorney general. (1 B,. S. [6th ed.], 537, § 1.)

But if any well-founded objection could be urged against the right of the people to maintain the action, the fact appeared upon the face of the complaint-, and it was, therefore, made a subject of demurrer. (Sub. 3 of sec. 488 of the Code.) If that had not been the case, then the objection was permitted by section 498 to be taken by the answer. But as it was taken in neither of these forms, then by the direct language of section 499 it was waived; and for these reasons this objection is entitled to no weight in the disposition of either of these appeals.

By the settled practice preceding the enactment of the present Code, that portion of the action which presented the question whether these poles were a nuisance, was the proper subject of trial by jury. (Hudson v. Caryl, 44 N. Y., 553 ; Hutchins v. Smith, 63 Barb., 251.) And that practice has been embodied in subdivision 2 of section 96.8 of the Code of Civil Procedure; for it has directed that an issue of 'fact in an action for a nuisance must be tried by a jury, unless such a trial shall be waived, or a reference be directed. The action was, therefore, properly brought to trial in that manner. But if it had not been authorized to be tried by a jury, the defendant would probably have been precluded from raising this objection, by reason of the fact that this mode of trial was directed at the instance and in the disjjosition of an .objection presented by its own counsel.

■ After invoking and obtaining such a decision, the court would certainly be reluctant in listening to an objection from the same party, that the decision obtained in that manner was erroneous. More than the usual degree of courage on the part of the counsel is required to permit the presentation of this objection under such circumstances; and the practice itself is not entitled to be either commended or encouraged. Counsel are required to observe the rules of candor and good faith in the presentation of their legal ¡joints, and cannot be justified in asking for a decision or direction, which, after it has been made, shall be urged as inaccurate or liable to be repudiated by the counsel obtaining it. The case, however, was a proper one for a trial before the jury, and so far as their decision extended, it was required to be carried into effect by the court; for it is only when issues have been specially framed, which do not include the entire subject matter of the action, that a further trial under section 972 of the Code has been authorized.

The poles, which were the subject of complaint, were erected by the defendant as a telegraph company, under the authority of chapter 265 of the Laws of 1848, as that was amended by chapter 471 of the Laws of 1853. It was shown upon the trial to have been incorporated under and by virtue of the first of these acts, and it accordingly had the authority to erect telegraph poles for the support of its wires and fixtures and the transaction of its business. But in doing so, it was restricted to those which were necessary for that purpose, and they were required to be so constructed as not to incommode the public use of the street. (2 R. S. [6th ed.], 635, § 17 ; 633, § 5.) That is the extent of the right which the legislature has conferred upon such a corporation. And if it has been exceeded, and the public have been incommoded thereby, then so far as that excess has extended, an unlawful appropriation of the street has been made by it, and that would constitute such a purpresture as would authorize the interference of this court for its correction. And it was to maintain the plaintiff’s action under this principle that the evidence was given upon the trial; and as that was produced on behalf of the plaintiff, it tended to show that some or all of the poles were both larger and higher than were necessary for the defendant’s use, and in that manner that the defendant had exceeded the authority conferred upon it by the statute. The walk inside the line of the poles varied in width from between six and seven feet to eight and nine feet; and some evidence was given ■ which tended to show that this space was insufficient for the free passage of persons sometimes meeting upon the walk. The poles were inside the curb, and varied in their distance from each other from 128 to 166 feet, and some of them were larger in diameter than others. The plaintiff’s evidence upon this subject was answered by testimony given on behalf of the defendant, tending to establish the fact that the poles were neither larger nor higher than they should be, and that no inconvenience whatever was presented by their size to the free and convenient use of the walk; but there was no such preponderance of the evidence in the defendant’s favor as rendered it proper for the court to withhold the case from the consideration of the jury. The facts so alleged and controverted were, on the contrary, very proper subjects to be considered and decided as they were by the jury. The evidence has been wholly and thoroughly examined, and it leaves tiie conviction very decided upon the mind that the case was rightly submitted to the jury, and that the several motions made for a new trial were properly denied. Exceptions were taken to evidence received and evidence excluded in the course of the trial, but neither of them seems to have been well founded. Some of the inquiries allowed were probably objectionable in form,' 'but by the answers which they elicited no improper evidence was received, and tlie objections to such questions, therefore, are not capable of being sustained. Exceptions were also taken to the charge by which the case was submitted to the jury, but neither of them seems to be well sustained.

The direction which the defendant had the most reason to complain of was that which limited it to the use of poles no larger than such as were absolutely necessary for its business, for that exceeded the statutory restriction. It did not bind the defendants to the erection of poles no larger than those absolutely necessary, but it permitted those to be supplied and used which were simply necessary and constructed in such a manner as not to incommode the public use of the street. And thos-e terms invested the defendant with the right to use such poles as would be reasonably sufficient and properly adapted to the fixtures and lines they were to maintain and over which its business was to be transacted. And the court afterwards in the directions which were given at the instance of the defendant’s counsel so -limited the rules to be observed by the jury in their consideration of the case. That presented fairly and intelligently the legal ground of controversy upon which the right to maintain the action depended, and by their verdict the jury supported the theory of the plaintiff.

To the extent to which the poles were necessary, either in size or height, the right to erect and maintain them was given by the legislature, and so far as they were within that authority they could not be alleged to be a nuisance or an unlawful obstruction of the street by the people. (Davis v. Mayor, etc., 14 N. Y., 506 ; People v. Gas Co., 64 Barb., 55 ; 7 Wait on Actions and Defenses, 565 ; 3 id. 707.)

To that extent the right to erect and maintain the poles was legalized, but wherever that was exceeded in their size or height, the defendant’s act was unauthorized. This, as has already been stated, violated the implied restraint created by the statute, and was the legal subject of an action for redress. (Blanchard v. Western Union Tel. Co., 60 N. Y., 510.)

And it was upon this theory that the verdict in the case was rendered by the jury. This verdict was, however, for damages only, and as such it was confined to the sum of six cents. Whether under the evidence the jury regarded all the'poles as exceeding tbeir necessary size, or whether the verdict was placed upon the-fact that one or more was larger than the others, and in that manner to a greater and unnecessary extent encroached upon the width, of the walk, has not been made to appear in the case.

Under the evidence the jury might well have taken the view that these larger poles were improper, because of their greater size.. And if they did, that would sustain a verdict of the nature of that, rendered by them in the case. So it might have proceeded upon the theory that all the poles were larger and'higher than the necessities of the company required they should be, but no finding-was declared by them supplying the means of settling these uncertainties. Neither was it stated to what extent either of the poles-were larger than they necessarily should have been. While the case, therefore, may very well authorize a recovery of this sum of money, it furnishes no criterion or authority for any relief beyond that to the plaintiff in the action.

It is true that by a judgment in such an action damages may be recovered, and the removal of the nuisance be also directed. (Code, § 1662.) But for the latter purpose something more than a verdict for damages is obviously required. It cannot result from such a verdict as was returned in this action that the court could legally declare all or any particular one of these poles to be an unlawful encroachment upon the sidewalk of the street. It is impossible that such an inference or conclusion can be maintained by this verdict. All that it did was to find that the plaintiff lias sustained damages from the-acts of the defendants to the extent of six cents. What particular act or acts may have caused even this insignificant injury was in noway stated or declared. From such a verdict the only legal result which could follow would be the plaintiffs’ right to recover the amount, together with the costs of the action, where its decision depended upon the proof of title in real estate. It could warrant nothing further, for the simple reason that it included no more than the plaintiffs’ right to these damages. To authorize the court to interfere with the existence of the poles there should have been a finding in some form showing which of them and to what extent they exceeded the necessary bounds prescribed by the statute.

There was no evidence in the case by which the defendant could be denied the right to erect and maintain poles in the street. And f oi1 that reason, as well as because of the further fact that the verdict ■could not be construed as a finding that the erection of telegraph poles in the street was unlawful, no authority was given to the court to direct them to be taken down and removed. This portion of the judgment was entirely unauthorized by the result of the trial, for that was limited to the determination of the amount of damages which the plaintiff was deemed entitled to recover.

These poles were erected in the year 1881, and as the damages found to have been sustained by reason of either of them exceeding the necessary size prescribed by law, were merely nominal, no serious injury can possibly have arisen from that circumstance. And in view of that fact the court would not be at liberty to restrain the maintenance of the poles, even if they were all intended to be included in the verdict of the jury. For the damages resulting from the injury were so trifling in their amount as to deprive the action of every serious attribute which could be made the subject ■of equitable complaint. And “ equity will not interfere * * * to remedy a mere technical or theoretical injury to land.” (2 Story Eq. Jur. [12th ed.], § 925, F.)

To secure its interposition there must be some gravity to the complaint presented as the subject matter of the action, for equity will only intervene to prevent irreparable injuries, or to avoid multiplicity of suits. (Hilliard on Injunctions, 270-2 ; Attorney General v. Sheffield Gas Co., 19 Eng. Law and Eq., 639; 3 Wait on Actions, etc., 707.)

In no possible view of the result of this trial can so much of the judgment be sustained as directed and required the removal of the defendant’s telegraph poles from the street. It may be under the evidence that very much smaller and lower poles will answer •all the purposes of the defendant along this block. They may very well be so restricted, even though poles of the size and height of those now upon 'the corners may be required to carry the wires over the elevated railway, or to such other points as it may be necessary to reach in that manner. And from the evidence there would seem to be no insuperable difficulty in the way of placing smaller poles through all the intervening distance after passing the corners of the block. But whether this may or may not be practical is a part of the controversy not at présent requiring to be decided, for by the verdict which was given, the right to remove either of the poles has in no form been secured to the plaintiff. As far as it extended it may very well be sustained, and that will secure to the plaintiff the right to recover these damages, together with the costs incurred in the prosecution of the action. But beyond that the judgment has no legal foundation for its support, and to that extent only it should be reversed, but without costs of the appeal to either party.

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

Judgment modified as directed in opinion, without costs to either party.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    MARTHA W. LEACH, Appellant, v. JAMES A. FLACK and Others, Executors, etc., of WILLIAM C. CONNER, late Sheriff, etc., Deceased, Respondents.

      Fraudulent conveyances — 3 Jt. S. (6th ed.), 143, sec. 5; Id., 146, sec. 5 — Bights of a purchaser for a valuable consideration.

    This action was brought to recover the value of personal property seized under an attachment issued in an action brought against one Leach and sold under a judgment recovered therein. Leach being indebted to the plaintiff, his mother, in the sum of $3,300, for which she held his promissory note, it was agreed, on June 9, 1876,- that he should transfer the property to her by a bill of sale, and she agreed, although it was of less value than the amount of the debt, to accept the same in satisfaction of the debt and surrender the note. This was done and the plaintiff then leased the property to Leach, which lease was terminated, under an authority therein contained, by the service upon him of a notice, after the property had been levied upon under the attachment. The referee held that the sale was rendered void as to Leach’s creditors by section 5 of 3 Revised Statutes (6th ed.), 143, providing that where the vendee was allowed to retain the possession of the property the sale should be presumed to be fraudulent, and that such presumption should be conclusive unless the vendee should prove that it was made in good faith and without intent to defraud creditors.

      Seld, that as the referee also found .that the plaintiff acted in good faith, and had no knowledge of any intention on the part of her son to deceive or defraud any of his creditors, her title was preserved and rendered valid by section 5 of 3 Revised Statutes (6th ed.), 146, providing that the title of a purchaser for a valuable consideration should not be affected or impaired by any of the provisions of that chapter unless the purchaser had previous notice of the fraudulent intent of his grantor.

      Appeal from a judgment in favor of the defendants, entered on the report of a referee.

      Edward Van dVess, for the appellant.

      Vanderpoel, Orem dé Ovmming, for the respondents.
   Daniels, J.:

The object of the action was the recovery of the value of personal property seized under an attachment issued against Henry A. Leach, and afterwards sold upon an execution upon the judgment recovered in the action in which the attachment had been issued. This prop■erty, at the time of its seizure, was in the possession of the defendant in the attachment; but it was shown that before that time he became indebted to the plaintiff, who was his mother, in the sum of $3,300, for money loaned, and for which she held his promissory note. On the 9th of June, 1876, he made a bill of sale of the property to her, .and although it was of less value than his indebtedness to her, she .accepted it as a satisfaction of the debt, and surrendered the note to him. She thereupon leased the property to him, but that lease, under authority contained in it, was vacated by a notice served soon .after the seizure under the attachment. The referee held the sale from the debtor to the plaintiff to be fraudulent and void as against his creditors on account of his continued possession, and he directed a dismissal of the complaint for that reason, although he also found the fact to be established by the evidence that the plaintiff was no party to the fraud, but received the bill of sale without notice of her son’s embarrassment in business, and without any intention to hinder, delay or defraud any of the existing or subsequent creditors of the vendor. His construction of the statute was that the sale was void, notwithstanding this conclusion, for the reason that it was to be presumed that it was fraudulently made by her son because he was afterwards permitted to remain in possession of the property sold. This conclusion was considered warranted by the language of the statute, declaring that the possession of the vendor should be conclusive evidence of fraud, unless it should be made to appear on the part of the person claiming under it that the sale was made in good faith, and without stay intent to defraud creditors or purchasers. (3 B,. S. [6th ed.], 143, § 5.) But it is clear that the learned referee misapprehended the force and effect which should be given to this section of the statute. For it was further provided in the general provisions of the statute that the provisions of the chapter containing this section should not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it should appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor. (I'd., 146, § 5.)

No such notice as this section required to avoid the title because of the fraud of the vendor, was proved in the case, but the referee found, on the contrary that “ she had no knowledge of any intention on his part to deceive or defraud any of his creditors.” And under the force and effect of this section her title to the property could not be defeated by the mere circumstance that the person from whom she acquired it intended to hinder, delay or defraud his creditors. And the law wras so considered in Dudley v. Danforth (61 N. Y., 626.)

That she was a purchaser for a valuable consideration, within the language of the statute, was proved by the facts that she'had an honest debt against her son for more than the value of the property sold to her, and the sale was made in satisfaction of the debt, and at the time when she received the bill of sale she surrendered the note which the debtor had given her for it, to him. These facts, under what now is the settled law, made her a purchaser for a valuable consideration. (Phoenix Ins. Co. v. Church, 81 N. Y., 218, 223-6.)

The final direction given by the referee for the dismissal of the complaint was in direct conflict with the facts found by him to have been proved by the evidence. The judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event.

Brady, P. J., concurred.

Present — Brady, P. J., and Daniels, J.

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


text:
    In the Matter of JAMES H. BAILEY, Receiver, etc., of the Pelham and Portchester Railroad Company.

      Costs — a judgment for costs, belongs to the attorney — a receives• who collects it will be compelled, to pay over the amount so collected to the attorney.

    An action, brought against a railroad company, was successfully defended by art attorney employed by it and a judgment for the costs was entered in its favor. A receiver of the company, appointed in proceedings supplementary to execution during the pendency of the said action, collected the amount of the judgment for costs.

      Held, that he was properly required to pay the same over to the attorney who defended the action.
    Appeal from an order made at a Special Term directing the receiver to pay over to Joseph Pool the sum of sixty-nine dollars and thirty-two cents, costs which he had received upon a judgment ■in favor of the railroad company against Ezra Gildersleeve.
    The amount of the judgment had been collected by the receiver, who had been appointed in proceedings supplementary to execution during the pending of the action which 'was defended by Pool.

      William E. Walldey, for the receiver, appellant.

      Harwood B. Pool, for Joseph Pool, respondent.
   Daniels, J.:

Gildersleeve had brought and prosecuted an action against the railroad company, which was defended on its behalf, by Joseph Pool, as its attorney. He was successful in the defense, and the money in controversy was the costs adjusted as the items incurred in the course of that defense. Oases have been brought to the attention of the court sustaining the proposition that a receiver is entitled to collect and receive the debts owing to the corporation, and that its creditors must present their claims to him and receive payment from him, so far as that can be made out of its assets. But these authorities were decided on the rights of creditors having ordinary debts and claims against a corporation. They have no relation whatever to the costs of a successful defense recovered by judgment in the name of the corporation. Such a judgment, consisting exclusively of costs, is for all ordinary legal purposes the property of tbe attorney. This was held in Marshall v. Meech (51 N. Y., 140), where it was said in the opinion that to the extent of the taxed costs entered in the judgment, the judgment itself is legal notice of the lien, and this lien cannot be discharged by payment to any one but the attorney. The judgment debtor pays these costs to the party at his peril.” (Id., 143.) This authority, seems to be entirely decisive of this controversy. As between himself and the attorney, the receiver had no right to these costs, and he was very properly ordered to refund them to the attorney.

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

Beady, P. J., concurred.

Present — Brady, P. J., and Daniels, J.

Order affirmed, with ten dollars costs and disbursements.


text:
    BOLTON HALL and Others, Appellants, v. THE UNITED STATES REFLECTOR COMPANY, Respondent.

      Attachment — the fees and expenses of the sheriff are to be adjusted by the judge issuing the warrant — they cannot be adjusted by the court — on an application for their adjustment no direction can be given as to the person by whom■ they shall be paid— Code of Civil Procedure, sec. 8307, sub. 2, 3287.
    The fees and expenses of the sheriff upon an attachment issued in this action were partially settled by an order made by the court on November 15,1882, and finally settled by a second order made by the court on June 1, 1883, prior to which time the attachment had been discharged by the voluntary action of the plaintiffs. By these orders the plaintiffs were ordered and directed to pay the amount so allowed to the sheriff, and he was thereupon directed to release and deliver the property attached to the defendant. No appeal was taken from either of these orders. Subsequently the plaintiffs moved to amend the orders by striking out so much thereof as required the plaintiffs to pay the amount of the said fees to the sheriff.

      ■Held, that under section 3807 of the Code of Civil Procedure, the judge had no power to do more than adjust the fees, compensation and expenses of the sheriff, and that he could not inquire or determine as to the liability of the parties for the payment of the amount so adjusted.

      That as there was no authority for the insertion in the order of the directions for the payment of the fees, etc., by the plaintifEs, they could move to have it stricken therefrom although no appeal had been taken.
    That the orders were inoperative for the further reason that they were made by the court and not by the judge issuing the warrant, as required by the Code of Civil Procedure.
    Appew, ''roman order male at a Special Term on October 31, 1883, denying a motion to modify orders adjusting tbe sheriff’s fees and expenses under an attachment issued in this action. One of the orders was entitled “ at a Special Term of the Supreme Court, •' held at the court-house in the city of New York, on the 15th day of November, 1882,” and the other “at a Special Term of the Supreme Court, held at chambers thereof, at the court-house in the city of New York, on the 1st day of June, 1883.”

      William jB. TIornblower, for the appellants.

      Edward P. Wilder, for the respondent.

      Malcolm Graham, for the sheriff.
   Daniels, J.:

The fees and expenses of the sheriff were in part adjusted by the order made on the 15th of November, 1882, and a further and final adjustment of them was made by an order of the 1st of June, 1883. Before the final order the attachment was discharged by the voluntary action of the plaintiffs, and the adjustment therefore included the entire amount allowed to the sheriff. By the order which was then made, as well as the one preceding it, the plaintiffs were ordered and directed to pay the amount allowed to the sheriff, and he was thereupon directed to release and deliver to the defendant the property which had been attached. No appeal was taken from either of these orders, and at the time when the final order was made, the direction now complained of was unimportant, for the reason that judgment liad been directed in favor of the defendant. Since that time, however, the judgment has been reversed upon appeal, and it was therefore considered important, to prevent the punishment of the plaintiffs for their failure to obey it, that this direction contained in the orders should, by their modification, be omitted; and it was to secure that result that the motion was made upon which the order was entered from which the appeal has been taken. This motion proceeded upon the proposition that the judge to whom the adjustment of the sheriff’s fees and expenses was confided, had no authority to add to the adjustment the direction for the payment of the amounts. But the motion was resisted, and the same ground has been taken in support of the order, upon the theory that the only remedy for its correction was by way of an appeal. But if this direction was made without the authority of law, then it could very well be corrected by means of this motion. This practice was considered and held to be applicable to such a state of facts in Seaman v. Whitehead (78 N. Y., 306). For the point, as it was there held, related to the jurisdiction of the judge, ■“and could properly be raised by a motion to set aside the order upon that ground. If void, it should have been vacated for that reason, and an appeal lies from an order denying the motion to vacate.” (Id., 308.)

The same practice has been considered and held to be proper in Fitch v. Hall (18 How., 314), and Attrill v. Rockaway Beach Improvement Company (25 Hun, 376). The course pursued, therefore, for the correction of the orders in this respect, was a proper one, and if the directions complained of were made without the authority of law, the appeal will now require this court to exclude it from the orders.

By subdivision 2 of section 3307 of the Code of Civil Procedure, the sheriff’s fees, compensation and expenses in executing a warrant of attachment are to be adjusted by the judge issuing the warrant, and that is all the authority over this subject which has been given to him by the statute. By section 3287 of the Code, either party had the right to require this adjustment to be made, and when it was made, it could be made only by the judge issuing the warrant. The law gave him no authority either to inquire, or adjudicate, as to the liability of the parties for the payment of the amount adjusted, but that was left to another and different course of proceeding. This direction, therefore, was one which he had no legal authority at the time of either of the adjustments to make.

In addition to this defect of authority, it appears that the orders were made by the court, and as the statute invested the judge himself with the authority, and conferred no power upon the court to make the adjustment, the orders were also inoperative for that reason. (Heishon v. Knickerbocker Life Ins. Co., 77 N. Y., 278 ; Schumaker v. Grossman, 12 Weekly Digest, 99.)

There was a plain want of authority for giving the directions, which, by the motion, the plaintiffs applied to have vacated. For that reason the orders should have been so modified as to strike out these directions, and as that was not done, the order from which the appeal has been taken should be reversed, and an order entered so> modifying the preceding orders as to exclude these directions from them, and the appellants should be allowed the usual costs and disbursements upon the appeal.

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Daniels, J J.

Order reversed, with ten dollars costs and disbursements. Order entered as directed in opinion.


text:
    In the Matter of the Petition for Habeas Corpus on Behalf of MARY RILEY.

      Delinquent children — when they may he committed to the house of refuge — 1865, chap. 172, sea. 5.
    Section 5 of chapter 172 of 1865, authorizing magistrates to commit any children under the age of sixteen years “ deserting their homes without good and sufficient cause, or keeping company with dissolute or vicious persons against the lawful commands of their fathers, mothers,” etc., to the House of Refuge for Juvenile Delinquents, is not inconsistent with any of the provisions of, nor was it repealed by the Penal Code or the Code of Criminal Procedure, and it still remains in full force and effect.
    Appeal from an order made at a Special Term discharging Mary Riley from the custody of the superintendent of the house of refuge.

      George F. Murray, for the House of Refuge and the People, appellant. '

      A. H. Hummel, for the petitioner, respondent.
   Daniels, J.:

The relator was discharged from custody because it appeared that the commitment stated her age to be that of fifteen years, when it was supposed that the right to commit to the House of Refuge for the Reformation of Juvenile Delinquents, in the city of New York was limited to females not over the age of fourteen years. This view was adopted and followed under the authority of section 291 of the Penal Code, prescribing such a limitation as to age in the cases afterwards provided for.

But the case of the relator was not one of those defined by this ■or the succeeding section of this Code, but it was provided for by' chapter 172 of the Laws of 1865.' By the fifth section of that act, authority 'was given to the magistrate, before whom the proceedings were instituted and carried on, to commit any children under the age of sixteen years deserting their homes without good and sufficient cause, or keeping company with dissolute or vicious persons, against the lawful commands of their ■ fathers or mothers,” etc., to this institution. And it is evident from the language of the •commitment that the relator was committed by virtue of that authority. , For she was, as the section provides she could be, ■declared to be a disorderly person who had, without good and sufficient cause, deserted her home and kept company with dissolute or vicious persons, against the lawful commands of her parents. This was a clear statement of facts literally corresponding with what had been required to bring the case within section 5 of chapter 172 of the Laws of 1865. And as the Penal Code in no manner provided for this particular class of cases, the act of 1865 was not repealed by it. For it was not inconsistent with the provisions of the Code, and it was only such acts and part of acts as were inconsistent with its provisions that section 726 declared should be repealed. Beyond that, section 721 of the Penal Code declared that it should not affect any of the provisions of law relating to disorderly persons not inconsistent with this Code. And as there seems to be no inconsistency between the act of 1865 and the enactments of the Code of Criminal Procedure, or of the Penal Code, as this section contemplates, the former law must be held still to be in full force and effect.

It provides for a class of cases for which no inconsistent provisión has since been made. The court, therefore, had jurisdiction to hear this complaint, and on finding it to be established by proof, to commit the relator to this institution. And'as no other objection can properly be taken to the proceeding, it follows that the order discharging the relator was unauthorized ; and it should be reversed, and the relator again committed to the custody of this institution.

Beady, P. J., concurred.

Present — Beady, P. J., and Daniels, J.

Order reversed.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES IRVING, Appellant.

      Criminal law — assault in the second degree — 'Penal Code, sec. 218 — Mvamination of a defendant in his own behalf— right to cross-examine him to discredit his testimony — when an error in allowing an improper question is cured by the harpilessness of the answer— Code of Criminal Procedure, sec. 542.
    The defendant was convicted of an assault m the second dggreo for striking the complaining witness twice upon the head with a pistol, thereby cutting his head and inflicting upon it a wound about an inch and a-half long.

      Held, that it was properly left to the jury to say whether such an assault with such an instrument was not likely to produce grievous bodily harm within the meaning of subdivisions 3 and 4 of section 218 of the Penal Code.
    Upon the cross-examination of the defendant he was asked, against the objection and exception of his counsel, whether he had not committed other assaults, upon other persons, at other times. A.s to all but two of these inquiries the defendant answered in the negative, and in answering these two affirmatively he stated facts and circumstances showing that he liad a sufficient excuse for what he did.

      Held, that the court erred in allowing the questions to be put, but that as the answers were such that the defendant could not have been prejudiced by making them, the error should be disregarded under section 542 of the Code of Criminal Procedure.
    Appeal from a judgment of ■ tbe Court of General Sessions of tbe county of New York, convicting the defendant of an assault in tbe second degree.

      Thomas F. Grady and W. Fourhe Cochran, for tbe appellant.

      John Vincent, for tbe respondent.
   Daniels, J.:

The act for which the defendant was convicted was striking the complaining witness twice upon his head with a pistol, thereby cutting his head and inflicting a wound upon it about an inch and a-half in length, and this was sufficient .under the Penal Code to create the offense of an assault in the second degree, foi that may be done by inflicting a wound upon another with, or without, a weapon, or by the use of any instrument or thing likely to produce grievous bodily harm. (Penal Code, § 218, subs. 3 and 4.) And such an instrument as was in the hands of and used by the defendant would be likely when so used to produce grievous bodily harm. Certainly there was such a degree of probability that it might be productive of that result as to require the case upon that point to be submitted, as it was upon the trial, to the consideration of the jury.

Upon the cross-examination of the defendant, who was sworn in his own behalf as a witness upon the trial, he was asked whether he had not committed other assaults at other times upon other persons, and the questions propounded to him for that purpose were objected to. The objection was overruled and exceptions to the decisions were taken. These inquiries may very well have been suggested or induced by similar questions put to the complaining witness upon his cross-examination by the defendant’s counsel. But while that might form some excuse for following the same course in the cross-examination of the defendant, it still would not justify the rulings which were made if they were erroneous. And that they were erroneous may probably with safety be assumed, for while the defendant may be cross-examined as to other acts of misconduct not involved in the issue to be tried which may affect his credit as a witness in the case, the inquiry shpuld be limited to acts reasonably attended with that result. (Brandon v. People, 42 N. Y., 265 ; Real v. People, Id., 270; People v. Brown, 72 id., 571; People v. Crapo, 76 id., 288; Ryan v. People, 79 id., 593.)

The cross-examination should be' restricted to such acts as bear “ directly upon the present character and moral principles of the witness, and therefore, essential to the due estimation of his testimony by the jury.” (1 Greenl. on Ev. [7th ed.], § 459.] And that the defendant may have upon other occasions committed an assault upon other persons would not seem to be within this principle, for tlie fact itself would not necessarily or properly tend to impeach his moral character or impair his credit as a witness. But all, except two, of the inquiries made were answered in the negative by the defendant, and could not, therefore, have prejudiced him in the least upon the trial. In his answers to the other two he stated that he did strike the persons mentioned in the inquiries, and if the answers had ended there the cáse would probably have required another trial to correct this error. But it did not, for the defendant proceeded to state and explain the circumstances under which he struck these persons, showing that he was excusable for what he did. And in view of the explanations made, the fact that he did strike other persons on two different occasions could have had no effect whatever in the way of prejudicing the jury against him in this case. "Whatever effect might otherwise have heen given to the facts themselves was removed by the explanations which the witness added. In Nolan v. Brooklyn City etc., R. R. Co., (87 N. Y., 63), the witness was asked whether he had not been expelled from the fire department, and the court held the question to be “improper, because the fact sought to be proved was neither pertinent to the issue, nor did it relate to any specific fact which tended to discredit the witness or impeach his moral character.” But inasmuch as he added an explanation of the cause of his removal, relieving him from the charge of misconduct, it was held that the error was productive of no injurious effect, and, therefore, could form no ground for the reversal of the judgment. (Id., 68.) By section 542 of the Code of Criminal Procedure, the observance of this principle has now been positively enjoined upon the courts. For it has been provided that after hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. Those which have been considered are exceptions of this description. As the answers were explained, they did not affect any substantial right of the defendant in this case.

The evidence was such as to require the court to submit the case to the jury. Their verdict was reasonably well supported by it, ancf the judgment in the case should be affirmed.

Davis, P. J., and Bbadt, J., concurred.

Judgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THOMAS SHERIDAN, Appellant, v. STEPHEN B. FRENCH and Others, Commissioners, etc., Respondents.

      Limitations of times within which claims must he enforced — to what existing claims the provisions of chapter 4 of the Code of Givil Procedure apply — application of such provisions in cases where a demand is necessary — Oode of Givil Procedure, sec. 410 — When an application for a mandamus will he denied because of the laches of the applicant.

    The relator was a member of the police force of the city of New York from October, 1872, to February 10, 1877, his salary being fixed by law at the sum of $1,200 a year. This was paid to him from time to time, with the exception of about $500, which was deducted at various times on account of his absence from duty while he was disabled and sick. On March 8, 1883, he applied for a mandamus to compel the board of police commissioners to pay to him the sums so retained.

      Held, that the rules prescribed by chapter 4 of the Oode of Civil Procedure, limiting the times within which actions must be brought and special proceedings instituted, applied to the relator’s case.
    That under section 414 thereof the proceeding should have been instituted by him within the same period of time as that within which he might have enforced his claim by an action, that is, within six years, the time fixed by section 382.
    That even if it should be held that a demand was necessary to start the running of the statute, yet as the facts were at all times fully and clearly known to the relator the statute began to run from the time the right to make the demand existed. (Code of Civil Procedure, § 410, sub. 1.)
    That even if the limits prescribed by the Code of Civil Procedure were not applicable to the relator’s application, his long delay was in itself a complete answer thereto.

      People v. Common Council of Syracuse (52 How., 346) followed.
    Appeal from an order denying a motion for a peremptory writ of mandamus.

      William L. Snyder, for tbe appellant.

      JRichard J. Morrison, for tbe respondents.
   Daniels, J.:

Tbe relator was a member of the police force of tbe city of New York, from October 1872, to the 10th of February, 1877. His salary was fixed by law at the sum of $1,200 a year. This was from time to time paid to him, with the exception of certain sums deducted on account of his absence from duty while he was disabled, sick, lame and infirm. „ These sums are stated to have amounted in the aggregate to about $500. And it was to obligate the respondent^, as the board of police of the city, to pay these deductions or provide for their payment, that the application was made for the writ. The proceeding was commenced on the 8th day of March, 1883, which was more than six years after the relator ceased to be a member of the police force; and this delay was held to be sufficient to preclude him from the redress for which he applied. And whether this point was correctly so held is the only subject now required to be considered in the disposition of the appeal, for if the law did not permit him to prosecute this proceeding after the lapse of six years from the time of the accruing of his right, then his application was properly dismissed. If the limits prescribed by the Code of Civil Procedure do not apply to the application, then under the preceding rule the delay itself was a complete answer to the application. (People ex rel. Gas-Light Co. v. Common Council of Syracuse, 52 How., 846.) This point was clearly settled against the applicant by the authorities cited in the opinion in that case, and they fully answered the application made without reference to the propriety of their application in the case itself. But it was designed that the limitations prescribed by the Code of Civil Procedure phould apply to existing demands. In this respect no such restraints were imposed upon its provisions as were upon the limitation of the Revised Statutes and the Code of Procedure, for as to each of them it was expressly enacted that they should not apply to causes of action which, at the time of their respective enactments, had accrued. The present Code contains no such restriction, but many of its provisions contain unmistakable evidence of the fact that they were generally intended to apply to and define the time Within which existing legal rights could be enforced. That was substantially the view which was taken by the court in Acker v. Acker (81 N. Y., 143), and it seems to have been clearly warranted by the language of sections 3352 and 3356 of the Code of Civil Procedure.

The proceeding by mandamus, was at the time of the enactment of the provisions prescribing the times within which actions and legal proceedings might be commenced, a special statutory proceeding, in that respect similar in its nature and effect to that of Matter of Manhattan Savings Institution (82 N. Y., 142), and it still remains practically the same. And for that reason it was classified by a learned and accurate author as such, in a standard work. (Crary’s. Special Proceedings, 49.) By the provisions of the Code of Civil Procedure it has been declared that the chapter relating to and declaring the times in which actions may be commenced shall apply to and constitute the only rules of limitation applicable to a special proceeding, except in four classes of specified cases. (Code, § 414.) The first of these exceptions includes cases where a different limitation is specially prescribed by law, or by the written contract of the parties. The second, those in which the cause of action or defense accrued before the 1st of July, 1848. The third, a case not included in the second subdivision, in which a person was entitled to institute a special proceeding when this part of the act took effect, which, by section 3356, was the 1st day of May, 1877, and where he commenced his proceeding before the expiration of two years after that time. And it was only in case he commenced such proceeding within this period of two years, that any of the provisions of law applicable thereto before this portion of the Code took effect, should continue to be so applicable, notwithstanding its repeal. The fourth class of cases provided for were those where the time had expired when the Code went into effect. The applicant’s case was very clearly within neither the first, second or fourth of these subdivisions and exceptions, and it is equally so that it was'not within the third class of cases. For no statutory period of limitation had then been prescribed, within which a proceeding by mandamus should be commenced. And this proceeding was not commenced before the expiration of two years after this part of the Code went into effect. The result, therefore, is that chapter 4 of the Code of Civil Procedure applied to the case, and, in its language, contained the only rules of limitation applicable to it. And by section 414 the proceeding was required to be commenced within the same period of time that it might have been if the demand could have been prosecuted by an action.

If it could have been prosecuted in the form of an action, the action was required by section 382, to be commenced within six years after the right to institute it had accrued. For it would either have been an action on an obligation within the first subdivision of this section, or more probably, to recover upon a liability created by statute within the language of the second subdivision of the section. For it was shown by the affidavit presented in support of the application that the applicant was entitled to a fixed salary for his office, amounting to the sum of $1,200 a year; and that it may be assumed (as the fact undoubtedly was) was done by means of a statutory provision. And as an action to recover such a demand must be brought within six years after the time when the right to institute it accrued, it follows that the same limitation must be applied to the time within which a proceeding by mandamus, for a like purpose, could be instituted.

It has been urged in support of the appeal that the respondents received the money to pay the 'applicant his salary, and as they held it only for that purpose, they became to that extent trustees; and that the right to institute the proceeding should, therefore, be restricted to the statutory time after a demand of the money was made by him. But subdivision 1 of section 410 of the Code, upon which this position has been taken, does not sustain the right of the applicant to delay the application to the time when it was made by him ; for that so limits the right of a party entitled to make the demand, as to require the time to be computed from the time when he had actual knowledge of the facts upon which the right dep.ended. And it is very plain that the applicant had such knowledge when these deductions were made from the amount of his salary. He knew at what sum his salary had been fixed, and he certainly knew when deductions were made, that he did not receive the full amount to which he was nominally entitled. These deductions were not made on account of any want of funds in the hands of the board of police to- pay the salary, but they were made on account of his absence from duty ; so that the facts were all fully and clearly as well as necessarily known to him at the times when he received only the residue of his monthly pay. The provisions of the Code, prescribing the time within which the proceeding should be instituted, became applicable to his case, therefore, at once, as soon as they were enacted; and they secure him no extension of time, simply because of the circumstance that he could not institute this proceeding before the demand of the money was made by him.

The provision contained in section 3355 of the Code, declaring that for the purpose of determining the effect of the different provisions of the act they should be deemed to have been enacted simultaneously, in no way aids the applicant’s case. If they should be considered as broadly as his counsel has insisted they should, they will still be of no service to him, for they would not then place his case within subdivision 3 of section 414 of the Code, because his proceeding was not comlnenced within two years from the 1st of September, 1880, wheú this section fully and finally went into effect for this ultimate purpose, and no preceding statute prescribed the time within which they should be taken. But even though there had been, as already observed, he would then fail hy reason of the circumstance that he had unreasonably delayed the application which he made, and that, under the preceding rule of law, would require it to be dismissed, as it was, by the court.

It is probably needless to add, although it may as well be said, that it follows, from the fact that the proceeding should have been commenced within six years, that section 388 of the Code has no application to it. The case has been very ably presented by the counsel representing the applicant, but under no view which can be adopted is this proceeding entitled to be sustained.

The order from which the appeal has been taken was right, and it should be affirmed; but as the points to a certain extent are new, it should be without costs.

Beadt, P. J., concurred.

Present — Beady, P. J., and Daniels, J.

Order affirmed, without costs.


author: Pee Cubiam :

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. THE KNICKERBOCKER LIFE INSURANCE COMPANY.

      Receiver of an insolvent life insurance company— musí file Ms accounts with the General Tei'm — power of that court over them — it may appoint a referee to determine as to the amount and value of the services rendered to the receiver by attorneys and counsellors —1883, chap. 878, sec. 4.
    ■Chapter 378 ol 1883 requiring the accounts of the receiver of an insolvent insurance company to he filed with the General Terna of the Supreme Court, does not require that court to pass upon their correctness or to determine whether or not they should be approved; it requires nothing more than that they shall be placed upon the files of the court.
    Where the accounts so filed embrace many items paid as fees to attorneys and counsel, -the correctness of which the court cannot determine from amere inspection of the account, it will appoint a referee to determine whether the services have been rendered, and whether the charges made therefor are just • and proper, notice of the hearing before him being required to be given to the attorney general and the receiver.
    MotioN to bave the accounts presented to the General Term by a receiver of an insolvent life insurance company, as required by" section 4, chapter 378 of 1883, approved.
    The accounts, as filed by the receiver, had upon them the following indorsement:. “ The within accounts are hereby approved, ■dated,” etc.
    The court, upon being requested to sign this, refused to do so upon the grounds stated in the following opinion:

      Edwa/rd II. Hobbs, for. the receiver.

      Raphael J. Moses, Jr., for certain policyholders.

      Denis O’Brien, attorney general, for the people.
   Pee Cubiam :

An erroneous impression seems to exist as to. the duty of the ■General Term in reference to receivers’ accounts to be filed in pursuance of chapter 378 of the Laws of 1883. Section 4 only requires that such accounts be filed in the court. The court is not ■called upon to pass on their correctness or to determine whether or not they should be approved. The statute seems simply to contemplate that they shall be placed upon the files of the court.

The statute requires that in respect to attorney and counsel fees contained in such report, nothing shall be paid by the receiver until such charges have been approved of by the court, and an order to that effect duly entered. In this case a very large bill is presented extending through six months and embracing a vast number of items, the correctness of which the court has no means ■of ascertaining, except by a reference or by examination in court of the parties interested therein. We think in this case it is our duty to order a reference to determine whether the services have been rendered and whether the charges are just and pi oper; such reference to be had upon notice to the attorney general and the receiver. Any party interested in the funds of the receivership may be heard thereon.

The court, therefore, directs that an order be entered, referring the same to Joseph S. Auerbach, Esq., to take proof of the correctness of the charges and to. report the same to this court with his opinion.

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

' Receiver’s accounts ordered on file without approval. Order of reference directed, as to attorneys’ fees.


text:
    ATTORNEY GENERAL v. THE CONTINENTAL LIFE INSURANCE COMPANY.

      nsolvent insurance company — an attorney for policyholders has no legal claim against the receiver for compensation for his ses'vices.

    An attorney who, upon the retainer of certain of the policyholders in an insolvent insurance company, has appeared and resisted improper claims made by the receiver against the assets in his hands, has no legal claim to be compensated for such services by the receiver out of the assets of the corporation.
    Appeal by Charles P. Hartwell and others from an order denying a motion made for the payment of $831.75, for services and disbursements of their attorney and counsel in resisting- certain claims made on behalf of the receiver of the corporation.

      Raphael J. Moses, for the appellants.

      ’D. O' Brien, attorney general.

      Edward H. Hobbs, for the receiver.
   Daniels, J.:

The appellants held claims against the property of the insurance company, which it was alleged were payable out of its assets in the hands of the receiver. And it was to protect their interests that their attorney and counsel appeared upon the reference and the hearing afterwards had on the report. The services were undoubtedly valuable and the compensation claimed by them for him was reasonable. But the fact, nevertheless, was that these services were performed to protect the assets for the benefit of the appellants, who were his clients. They were not performed for, or on behalf, or by the employment of' the receiver, and, therefore, created no indebtedness against him, for the payment of which the funds officially held by him could be lawfully appropriated. This subject was considered in Attorney General v. North Ameriea Life Insurance Company (91 N. Y., 57), where it was held that the. performance of such services created no legal claim for compensation against the receiver. And section 5, of chapter 378 of the Laws of 1883, is clearly to the same effect. The point was also considered “ In the matter of the Security Life Insurance Company,” at the October term of this court, and also in the preceding ease of the Empire Mutual Life Insruance Company, decided at the same term, in both of which this conclusion was maintained.

It follows, therefore, that the order from which the appeal has been taken was right, and it should be-affirmed, with the usual costs- and disbursements.

Davis, P. J., and Bradt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD W. CRITTENDEN, Respondent, v. PATRICK KEENAN, Clerk of the City and County of New York, Appellant.

      Transcript of a judgment — how it must he attested, to authorize a county clerk to docket it— Code of Civil Procedure, secs. 1246, 1247.
    The relator presented to the defendant, the county clerk of New York, an instru-. ment which he claimed to he a transcript of a judgment recovered in the City , Court of Brooklyn and sought to have the same docketed by the defendant, The instrument set forth the name of the party against whom, and the name of the party in whose favor, the judgment had been recovered, the amount of the judgment and the time of its filing, together with the name of the attorney. .At the end of it was the following certificate: “ Office of the Clerk of the City Court of Brooklyn, ss.: I do hereby certify that the foregoing contains all the facts necessary to make a perfect docket of the judgment rendered in the City Court of Brooklyn in the above cause. Dated Brooklyn, N. Y., January 12, 1884. O. W. Thomas, Clerk.”

      Held, that the defendant properly refused to docket the judgment, as the instrument purporting to be a transcript thereof was not “ attested ” by the clerk of the City Court as required by section 1247 of the Code of Civil Procedure.
    Appeal from an order made at a Special Term directing the issue of a peremptory writ of mandamus requiring the defendant to docket a judgment.

      Charles F. MaeLeam,, for the appellant.

      R. M. Martin, for the respondent.
   Brady, J.:

The respondent, claiming to be the possessor of a judgment against one Edward B. Lansing, recovered in the City Court of Brooklyn, January 15, 1875, for the sum of $168,09, sought to file a transcript of it in the office of the clerk of the county- of New York, and, as appears by the affidavit, presented what was regarded as a transcript of the judgment to the appellant, and tendered the fees provided by the statute. But the appellant refused to receive the transcript and enter it upon his docket, as in such case made and provided by the statute relating to the subject. The following is a copy of the transcript and the attestation:

Year, 1875; names of parties against whom judgments have been obtained, Edward B. Lansing; names of parties in whose favor judgments have been obtained, Edward W. Crittenden ; attorneys’ names, E. W. Crittenden; time of filing, month, January; day, fifteenth; hour, twelve; minutes, five; amount, $168.09.

Office of the Clerk of the City Court of Brooklyn, ss. :

I do hereby certify that the foregoing contains all the facts necessary to make a perfect docket of the judgment rendered in the City Court of Brooklyn in the above cause.

Dated Brooklyn, N. Y., January 12, 1884.

O. W. THOMAS, Cleric.

It will be observed that the clerk does not certify that it is a transcript of the docket of the judgment entered in the court of which he is clerk, the certificate being only that the transcript which he gives furnishes all the facts necessary to make a perfect docket of the judgment which was rendered in the court of which he is clerk; and whether this is a statement made by the clerk, or whether it is a transcript of the docket which is entered upon the records of his court, does not appear from the certificate. It is, therefore, regarded as incomplete and insufficient to warrant the issuing of a writ of peremptory mandamus to accomplish the object which the judgment creditor had in view.

Section 1246 of the Code declares what each clerk shall do when he files a judgment-roll upon a judgment rendered in a court of which he is clerk, and section 1247 provides that a clerk with whom a judgment-roll is filed upon a judgment docketed as prescribed in section 1246 must furnish to any person applying therefor and paying the fees allowed by law, one or more transcripts of the docket of the judgment, attested by his signature. That is to say, he is to certify that the transcript of the docket of the judgment which he furnishes is a correct transcript of such docket. Such, as already suggested, was not done in this case, but a certificate given that it contained all the necessary facts to make a perfect docket of the judgment itself.

The county clerks of the State are required to immediately file such a transcript as contemplated by that section, and docket the judgment as prescribed in section 1246 in the appropriate docket book kept in their office, and if the transcript, therefore, had been properly attested, it would have been the duty of the appellant to file it and to docket the judgment upon the payment of his fees, immediately upon its presentation. The transcript and the certificate of the clerk should bear evidence upon their face, and without resort to any evidence dehors the record that a judgment existed in the court from which the judgment emanated, duly certified by the clerk of the court.

The certificate accompanying the supposed transcript in this matter, as already suggested, does not contain this element. This view becomes the more impressive from the fact that there is no special form prescribed by the Code for the certificate. But it is enacted by section 957 of the Code that where a transcript, exemplification or certified copy of a record or other paper is declared by law to be evidence, and special provision is not made for the form of the certificate in the particular case, the person authorized to certify must state in his certificate that it has been compared by him with the original, and that it is a correct transcript therefrom and of the whole of the original. And inasmuch as the filing of the transcript becomes a lien upon real estate, there is no reason why this provision should not apply to transcripts such as considered and the formula declared adopted. But however this may be, it is very clear that the certificate considered in this case is insufficient.

Order reversed, with ten dollars costs and the disbursements of this appeal.

Daniels, J.:

The object of the writ was to require the appellant to file, as it was presented to him, a paper claimed to be a transcript of a judgment recovered in the City Court of Brooklyn, and to docket the same, as such, in his office. The paper delivered to him for that purpose, was in the following words, figures and form :

Year, 1875 ; names of parties against whom judgments have been obtained, Edward B. Lansing; names of parties in whose favor judgments have been obtained, Edward W. Crittenden; attorneys name, E. W. Crittenden; time of filing, month and day, January 15; hour and minute, 12:05 ; amount, $168,09.

And it was followed by this certificate :

Office of the Clerk of the City Court of Brooklyn, ss. :

I do hereby certify that the foregoing contains all- the facts necessary to make a perfect docket of the judgment rendered in the City Court of Brooklyn, in the above cause.

Dated Brooklyn, N. Y., Jomuarg 12, 1884.

C. W. THOMAS, Cleric.

And if that was a compliance with what the Code has prescribed, to entitle a transcript of a judgment to be docketed, then the writ was properly ordered to be issued, for the appellant had declined to docket the judgment upon this pap>er. Section 1246 of the Code of Civil Procedure has prescribed what shall be done to make a proper and legal docket of a judgment recovered, and the next section following has required the clerk with whom the judgment may have been docketed, to furnish to any person applying therefor, one or more transcripts of such docket, attested by his signature, and further directing the county clerk to whom such transcript is presented, immediately to docket the judgment as prescribed in the preceding section, in the appropriate docket book kept in his office, upon the payment of his fees. But before he can be required to perform this duty the transcript must be attested by the signature of the clerk. "What shall be done to comply with this requirement has not been specially declared. But it is evident from the provision that it is to be attested, that some certificate shall be added showing the instrument to be a transcript of the judgment docketed in his office. From the nature of the case no intelligent discharge of the duties prescribed by the section could be otherwise secured. For that purpose it is indispensable that official information shall in some form be given by the attestation that the instrument attested is a transcript of the docket in the office of the clerk.

A transcript can be no otherwise made than by completely copying the instrument to be transcribed, and it cannot be intelligently attested by the mere signature of the officer transcribing it, without a statement that it is such a transcript. The law requires more than the signature of the officer making the transcript, for it requires an attestation in such a form as to show that the instrument to which it may be appended, to be a transcript, and that can only be done by some intelligent statement of the fact that the instrument is a transcript of the judgment docket kept in his office.

The certificate handed to the clerk in this instance contained no such statement, nor anything equivalent to it. ‘It was not in any form stated that the words, figures and form preceding it, were a transcript of any book, docket, or paper whatsoever, in the office of the clerk of the City Court of Brooklyn, but it was merely a statement that the foregoing contained all the necessary facts to make a perfect docket of a judgment- rendered in the City Court of Brooklyn in the above cause. That the judgment had been docketed, or that .the statement so transcribed was from the docket, was not in any manner or form set forth in the certificate. In these respects it was materially and radically defective, and the appellant, therefore, was right i-n refusing to file it and docket the judgment on its authority in his office.

The order should be reversed, and the motion for a writ of peremptory mandamus denied, with costs.

Davis, P. J., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    DAVID M. HOLLISTER, Appellant, v. CHARLES McNEILL, Respondent, Impleaded, etc.

      Undertaking on appeal — when it is insufficient — Oode of Oml Procedure, sec. 1827.
    The defendant, to stay all proceedings upon a judgment recovered against him, pending an appeal taken by him therefrom, gave an undertaking, with sureties, providing for the payment of all costs and damages which might be awarded against him on said appeal, not exceeding $500, and that if the judgment appealed from, or any part thereof, should be affirmed, or the appeal be dismissed, he would pay‘”the sum recovered, or directed to be paid by the affirmance, or the part thereof as to which it is affirmed.”

      Held, that the undertaking was insufficient as it failed to comply with the requirements of section 1827 of the Code of Civil Procedure; that it should have provided that in case the judgment appealed from, or any part thereof, was affirmed or the appeal dismissed, he, the appellant, would pay “ the sum recovered or directed to he paid by the judgment or order, or the part thereof as to which it was affirmed.”
    Appeal from an order of tbe Special Term approving the undertaking given by the defendant.

      Ira Shafer, for the appellant.

      John J. Armstrong, for the respondent.
   Beady, J.:

The undertaking was given to stay an execution pending an appeal taken. The undertaking was as follows:

Whereas, On the the 10th day of October, 1883, judgment was recovered by the plaintiff in the above entitled action against Charles McNeill, one of the defendants therein, for the sum of $8,264.81, and such judgment was entered with the clerk of the city and county of New York on that day; and,

Whereas, The said Charles McNeill feeling aggrieved thereby, intends to appeal therefrom to the General Term of the Supreme Couit; and the court before whom the cause was tried and judgment rendered having made an order that all proceedings on the part of the plaintiff be stayed pending the said appeal on the defendant giving the undertaking, executed by sufficient sureties and conditioned as herein provided.

Now, therefore, we, Bernardus Hendrickson (gentleman), Benjamin C. Mott (hotel proprietor and farmer), of Hempstead, Queens county; George H. Creed, of Jamaica, Queens county (gentleman); Timothy J. Campbell, of No. 14 Columbia street, New York city (gentleman), and Gilbert Creed, of Queens (butcher), do hereby pursuant to the statute and said order, jointly and severally undertake that the appellant will pay all costs and damages which may lie awarded against him on said appeal, not exceeding $500, and we do also in like manner undertake that if the judgment appealed from, or any part thereof, is affirmed, or the appeal is dismissed, tbe appellant will pay the sum recovered, or directed to be paid by the affirmance or the part thereof as to which it is affirmed.

Dated October 16, 1883.

B. HENDRICKSON. [l. s.]

TIMOTHY J. CAMPBELL, [l. s.]

GEORGE H. GREED. [l. s.]

BENJAMIN 0. MOTT. [l. s.]

GILBERT CREED. [l. s.]

"Witness-JOHN J. ARMSTRONG.

The plaintiffs objection to the undertaking was that, by section 1327 of the Code the undertaking must be to the effect that if the judgment or order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, he (the appellant) will pay the sum recovered or directed to be paid by the judgment or order, or the part thereof as to which it is affirmed, while the undertaking given provided that the appellant should pay the sum recovered or directed to be paid by the affirmance, or the part thereof, as to which it is affirmed.

"We entertain no doubt that the objection was well taken. The statute as to the effect of the undertaking is undoubtedly mandatory. It cannot be disregarded. There is a wide difference between an obligation to pay a sum which shall be directed to be paid by the judgment or order of the court, and that which is to be paid by the affirmance of a judgment on appeal by the appellate court. The difference is so self-evident that it is not necessary to discuss it, and the order appealed from is therefore regarded as erroneous. The objection taken should have been sustained for this reason, and the defendant required to execute a new undertaking, in proper form, for which purpose an opportunity will be given him, and ten days allowed for that purpose, after the service of the order to be entered on this adjudication, and the payment of ten dollars costs and the disbursements of this appeal.

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

Order reversed, order entered as directed in opinion, order to be settled by Bradv, J.


author: Bkady, J.;

text:
    MARIAN G. CATLIN, Appellant, v. WILLIAM H. CATLIN, Respondent.

      Action for divoi'ce —power of the court to provide for the support of a child,, after the entry of a judgment therein which contains no provisions therefor — section 59, 2 R. A, 148, is continued in force as to actions theretofore determined by sub. 2, of sec. 3, of chap. 245, of 1880.
    Appeal from an order of the Special Term denying the plaintiff’s application for a provision for the maintenance and education of Mary B. Gatlin, an infant.
    The court at General Term said“ The plaintiff succeeded in this action in obtaining a divorce a vinculo, but without an award of alimony or provision for the support of Mary B. Gatlin, the only issue of the marriage. The omission of these provisions was the result of an agreement between the defendant’s mother and the plaintiff, and made at the instance and request of the defendant, and by which it was agreed that if the defendant, by the decree, was absolved from liability to support the plaintiff, the defendant’s mother would convey certain real estate to certain trustees named, who were to apply the income thereof to the use of the plaintiff and the child Mary. The plaintiff performed .her part of the agreement by the form of the decree, but the defendant’s mother, although she paid moneys for the support of the plaintiff and her child between the' fall of 1874 and January, 1877, paid nothing further for the purpose mentioned. It further appears that in 1878 the child Mary, by guardian ad litem, commenced an action against the plaintiff’s mother to compel her to specifically perform the agreement mentioned,, but was defeated upon the grounds that •the plaintiff was under th.e disability of coverture when the agreejnant was made; that there was neither mutuality nor consideration • for tbe contract, and it was therefore nudum pactum, and void. It also appears that in 1817 the plaintiff intermarried Lansing C. Washburn, who has supported the infant Mary and expended a large sum of money for that purpose. And further that at the time the decree of divorce was obtained the plaintiff had an income from her father’s estate, but which has ceased for a long time, leaving her wholly unable to support her child Mary, who is still an infant and about fifteen years of age. It is not pretended that the infant has an estate of her own or any income, and it is conceeded that the defendant has the pecuniary ability to support and educate her. Indeed he expresses his willingness to take her and provide for her, but the plaintiff was awarded her custody by the decree and is not obliged, therefore, to accept such a proposition. Apparently determined to continue such custody, she sought by this proceeding to modify the decree entered herein by making such allowance for the support of the infant as should seem proper, but the defendant objected to and opposed the application successfully in the court below.
    “ It is still contended by his counsel that by the decree of divorce the court lost jurisdiction, which, to a certain extent, is a correct view of the law of the State. (Kamp v. Kamp, 59 N. Y., 212; Grimmins v. Grimmins, 28 Hun, 200; Johnson v. Johnson, 18 Weekly Dig., 27.) But these cases were applications by the wife, after the decree of divorce, asking a modification for her own benefit. Such is not this case. The Devised Statutes (2 B.. S., 118, §59), provide as follows: ‘In any suit brought by a married woman for a divorce or for a separation from her husband, the court in which the same shall be pending, may during the pendency of the cause, or at its final hearing or afterwards, as ■occasion may require, make such order as between the parties for the custody, care and education of the children of the marriage, as may seem necessary and proper, and at any time thereafter annul, vary or modify such order.’ And this statute is referred to as still existing in Grimmins v. Grimmins (supra). There is no doubt that it is in certain cases. It was continued by the act of 1880, chapter 245, in effect, as to actions of divorce theretofore determined, as appears by subdivision 2 of section 3, although otherwise repealed. The provisions of this statute are, therefore, applicable to this case, and this court is not without jurisdiction in the premises and may entertain this application. The examination of its features as presented, and due consideration of them having been had, has led to the conclusion that a reference should have been ordered to ascertain what would be a proper allowance for the support and education of the defendant’s infant daughter Mary.”

      D. R. Jacques and 0. Elliott Minor, for the appellant.

      Thomas M. North, for the respondent.
   Opinion by

Bkady, J.;

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

Order reversed, with ten dollars costs and disbursements, and order entered as directed in opinion.


author: Beady, J.;

text:
    SARAH B. AIKMAN, Plaintiff and Respondent, v. BLAIZE L. HARSELL and L. BBADFORD PRINCE, as Substituted Trustees, and Others, Defendants and Appellants.

      Action for an admeasurement of dower— the costs are in the discretion of the court.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of the action at a Special Term.
    The plaintiff (now the wife of John Aikman) was in 1859 the widow of Joseph Blackwell, deceased, and as such claims to be endowed of one-third of his moiety of the lands and premises known as Nos. 428, 430 and 432 Broadway, and 37, 39 and 41 Howard street, New York city. William Drayton Blackwell, the father of said Joseph Blackwell, died in 1848, seized of the whole- premises, leaving his widow, Letitia A. Blackwell, and two children, viz: Letitia A., wife of Peter Poillon, Jr., and Joseph Blackwell, the first husband of the plaintiff. In August, 1859, Joseph Blackwell died intestate and without issue, leaving his mother, his sister and the plaintiff, his widow, surviving. His mother, thereupon, by force of the statute of descents, became entitled to an estate for life in Joseph’s moiety, and the reversion vested in his sister, Mrs. Poillon, subject to plaintiff’s right of dower. Mrs. Poillon died in September, 1866, leaving a will, giving all her real estate to William B. Blackwell and John J. Poillon, in trust, and appointing them executors.

      Mrs. Letitia. A. Blackwell died February 8,1878, and subsequently,, and in May, 1878, the plaintiff made a formal demand of her dower,, and the demand not being complied with, this action was commenced.
    The action was tried before Mr. Justice LawbeNce on the 29th day of January, 1880. ' Among other things he found that no portion of the premises mentioned in the complaint was ever admeasured or set apart to Letitia A. Blackwell for her dower, and that her dower was-never assigned to her. Also, that no portion of the premises had ever been admeasured or set apart to the plaintiff for her dower, and' that her dower has never been assigned to her.
    As conclusions of law, the justice found that on the death of Joseph Blackwell, the claim for dower of Letitia A. Blackwell, his. mother, in the undivided half of the lands and premises mentioned in the complaint, which had belonged to Joseph Blackwell, became merged in the life estate of Letitia, which descended to her by statute, upon the death of her son Joseph, and that upon the death of Joseph Blackwell, the plaintiff became entitled to dower in the undivided half part of said premises owned by her husband during-his lifetime, and that the plaintiff is entitled to the use and enjoyment during her life of the one-third of such undivided one-half part of said premises, as her dower, and that she is entitled to have the same admeasured and set apart to her, and that she is also entitled to one-sixth of the net rents and income of the said premises since the 1st day of May, 1878. An interlocutory judgment was directed by the justice, which provided for the appointment of a referee to ascertain whether it is practicable, and for the best interests of the parties, that the dower of the plaintiff should beadmeasured and set-off, or whether the plaintiff should receive one-sixth of the net rental value of the premises as her dower. The referee was required to take an account of the rents and income since the-1st day of May, 1878, and what portion of the one-sixth of said rents has-been paid to the plaintiff. It was also provided that the costs of the plaintiff be paid by the trustees out of the income of the real estate. An extra allowance was also granted to the plaintiff of the sum of $1,500. Also, it is adjudged that the costs and allowance to the plaintiff be a lien and charge on the real property, excepting the portion which was laid off to the plaintiff. Final judgment having-been entered, upon the filing of the referee’s report, the defendants appealed from the interlocutory judgment, and also from the final judgment entered on the report of the referee.
    The court at General Term, said: “ The questions presented by the facts and circumstances of this case, predicated of the findings •of the learned, justice in the court below, have been carefully treated in an extended opinion, and we think properly disposed of. "We discover no reason for interfering with the findings either of fact or -of law, and we regard it as a work of supererogation to make any extended observations after the opinion referred to. We think, therefore, that the judgment should be affirmed.
    It is necessary, however, to consider the exception taken to the imposition of costs, and to the allowance granted to the plaintiff. The learned counsel for the appellant thinks that the subject is controlled by sections 13 and 25 of the Revised Statutes {2 R. S., 490, 492) relating to the admeasurement of dower. u These provisions do not apply here for the reason that it is an entirely different proceeding from that contemplated by the statutes referred to. This is an action under the provisions of the Code (§ 1596 et seq). When an action is brought for the admeasurement of dower, the costs, in the absence of statutory regulations, are in the discretion of the court, and are governed by the conduct of the parties. (2 Scribner on Dower [2d ed., 173], and cases cited; see, also, Beames on Costs, 22 Law Library, 35, original paging.) There are no statutory provisions in reference to costs in such an action as this, and, therefore, the rule just stated applies. The defendants stoutly resisted the plaintiff’s right to dower, and the imposition of costs in the manner declared, and the granting of the allowance was in consequence, doubtless, of such opposition. We see no reason to interfere on that subject. For these reasons the judgment appealed from must be affirmed, but we think under the circumstances, without costs to either party.” ,

      Sidney S. Harris, for the appellant.

      <George 0. Blanhe, for the respondent.
   Opinion by

Beady, J.;

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

Judgment affirmed, without costs.


author: Davis, P. J.

text:
    Ernesto G. Fabbri, Trustee, etc., Respondent, v. Willett C. WARD, Appellant, Impleaded, etc.

   — Judgment modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by

Davis, P. J.


text:
    Ralph H. White and others, Appellants, v John J. Fagan and others, Respondents.

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

Davis, P. J.


author: Brady, J.

text:
    Ambrose J. Agate, Appellant, v. Ann Eliza Agate, Respondent.—

   Judgment reversed, new trial ordered, costs to abide event; issues, ordered to be framed and submitted to a jury. Opinion by

Brady, J.


text:
    George J. Desh, Appellant, v. Oliver W. Barnes, Respondent.

   Judgment affirmed ; order denying motion for new trial reversed and the motion granted on payment of the costs of the trial to be-adjusted, and ten dollars costs of opposing motion and the costs of the appeal. Opinion by

Davis, P. J.


text:
    Daniel Carroll, Jr., Respondent, v. James Lee, Appellant.

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

Davis, P. J.


author: Brady and Daniels, JJ.,

text:
    Stephen Tunstall, Respondent, v. Walter H. Winton, Appellant.

   ■— Order affirmed, without costs. Opinions by

Brady and Daniels, JJ.,

and by Davis, P. J., dissenting.


text:
    Ernest Ludwig, Respondent, v. Rose Fox and David Fox, Appellants.

   — J udgment affirmed. Opinion by

Brady, J.


author: Daniels, J.

text:
    Thomas Brown, Respondent, v. The First Methodist Protestant Church of the City of New York, Appellant.

   — Judgment reversed, new trial ordered before another referee, with costs to* abide event. Opinion by

Daniels, J.


text:
    Alfred L. Simonson v. Samuel A. Wood.
   — Motion for reargument denied, without costs; order to be entered as directed in opinion. Opinion by

Davis, P. J.


text:
    Ebenezer Gordon, Respondent, v. The Scoville Manufacturing Company, Appellant.

   •— Judgment affirmed. Opinion by

Brady, J.


text:
    Jesse Seligman, Respondent, v. George E. Fisher, Appellant.—
   Order modified as directed in opinion, without costs to either party. Opinion by

Daniels, J.


text:
    Howard Ives, Respondent, v. Henry B. Lockwood, Appellant.

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

Daniels, J.


text:
    J. B. Brewster & Company, Respondent, v. John B. Terry, Appellant.—
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Alfred H. Smith and another, Respondents, v. Henry Clews, Appellant, Impleaded, etc.

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

Daniels, J.


text:
    In the Matter of Daniel W. Schoonmaker.—
   Decree affirmed, with costs. Opinion by

Daniels, J.


text:
    Eliza Cromwell, Respondent, v. William F. Romer, and Jacob H. Tremper, Appellants.—
   Order modified as directed in opinion, without costs to either party. Opinion by

Brady, J.


author: Daotels, J.

text:
    The People of the State of New YorK ex rel. William J. Syms and others, Appellants and Respondents, v. The Tax Commissioners of the City of New York, Respondents and Appellants.—
   Order affirmed, without costs. Opinion by

Daotels, J.


text:
    The Germania Fire Insurance Company, Respondent, v. The Hanover Fire Insurance Company and Alexander Stoddart, Appellants.

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

Daniels, J.


text:
    Edward A. Fraser and others, Respondents, v. William R. Hunt and others, Appellants

   — Judgment affirmed as to defendant Dunlop, without costs, and reversed as to defendant Hunt, with costs to abide event. Opinion by

Brady, J.


text:
    Edward Harbison v. William Peters.—
   Motion denied. Opinion by

Daniels, J.


text:
    Alphonso Duprat, Appellant, v. James Havemeyer, Respondent.

   — Order affirmed, without costs. Opinion by

Daniels, J.


text:
    The Germania Fire Insurance Company, Respondent, v. The Hanover Fire Insurance Company, Appellant.—
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    In the Matter of the Petition of Charles Oster.
   — Motion denied.


text:
    Laly J. Meyer v. Ferdinand Ehrlich.
   — Motion denied, without costs and without prejudice to any other proceeding to procure settlement of case.


text:
    Thomas W. Harris v. Lavinia Taylor.
   — Motion denied, with ten dollars costs.


text:
    Samuel Weeks v. Jacob Weeks Cornwell.
   — Motion for reargument denied, without prejudice to any application to correct the form of the judgment.


text:
    In the Matter of David M. Peyser.
   — Motion for reargument denied, without costs. Motion to charge costs against executoi personally denied, without costs.


author: Per Curiam.

text:
    In the Matter of the National Trust Company.
   — Petition, so far as relates to compromise of claim, dismissed, and so far as relates to attorney and counsel fees referred. Opinion

Per Curiam.


text:
    In the Matter of the Arbitration of Hiram Pool v. Bartlett S. Johnson.
   — Order dismissing appeal vacated without prejudice to any application to be made by either party at the next General Term. Opinion

Per Curiam.


text:
    In the Matter of the Amity Insurance Company.
   — Petition granted. Opinion

Per Curiam.


text:
    Horace B. Claflin and others, Respondents, v. Emil Hirsch, Appellant.

   — Reargument ordered.


text:
    In the Matter of the Manhattan Fire Insurance Company. —
   Order granted.


text:
    The People of the State of New York v. The Globe Mutual Life Insurance Company.
   — Receiver’s accounts ordered on file without approval; application in respect to attorney’s bills denied, without prejudice to the presentation of the attorney’s bills in the form provided by statute. Opinion

Per Curiam.


text:
    The People of the State of New YorK v. The Teutonia Savings Bank.—
   Receiver’s accounts ordered on file without approval; application for allowance of attorney’s bill denied, without prejudice to the presentation of the attorney’s bills in the form provided by statute. Opinion

Per Curiam.


text:
    The People of the State of New York v. The Globe Mutual Life Insurance Company.—
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Attorney General v. The Continental Life Insurance Company.—
   Order affirmed, with ten dollars costs and disbursements.


text:
    John Hills and William Hills, Respondents, v. M. M. Walker and others. Appellants.

   — ■ Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Attorney General v. The New York State Life Insurance Company. Pearson v. Stafford. Smyth v. Bancroft.—
   The papers not being in compliance with the requirements of the statutes, the application cannot be entertained. The papers may be withdrawn and leave given to submit another application through the receiver as required by the act.


text:
    John R. Duff, Respondent, v. William J. Hutchinson and George H. Kennedy, Appellants.—
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    The People of the State of New York ex rel. James Masterson v. The Board of Fire Commissioners.—
   Order reversed, relator restored. Opinion by

Brady, J.


text:
    Frederick Reck, Respondent, v. The Phœnix Insurance Company, Appellant.—
   Order reversed, and additional bond for $500 required, cost of appeal and disbursements to abide event. Opinion by

Brady, J.


text:
    Bolton Hall, Appellant, v. The United States Reflector Company, Respondent. —
   Order modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by Brady, J.; order to be settled by

Brady, J.