1st. That one of the two commission-united in making the award of damages ers who made the assessment, was, at the time of his appointment, and of the assessment, a trustee of a religious corporation, owning a lot on which there was a church, which was liable to assessment, and that he was therefore incompetent to act by reason of interest. It did not appear that he was a pew-owner, or had any pecuniary interest which would be affected by the assessment.

Held, That the fact that the commis- 3d. That the commissioners erred in sioner was a trustee of the church did not assessing part of the damages upon not make him interested, and disqualify the city. They were empowered to assess

the damages the same as in an assess

ATTACHMENT.

FIRST DEPT.

Trubee v. Alden.

Decided December 6, 1875.

ment for building sewers, except they N. Y. SUPREME COURT-GENL. TERM, were directed to assess such part of said expenses upon the city, and such part locally, as they might deem just. The commissioners state in their return that, because they deemed the improvement to be all local in its benefits, that it was not just to assess the city at large therefor. It appeared that the assessment was for opening an alley in the centre of a block so as to give access to the rear of lots fronting on streets.

Held, That the objection was not well

taken.

4th. It was also objected that the commissioners in assessing the church property, took into account the use to which it was applied.

Held, No error: that it was proper to consider for what the property was used in making the assessment. 11 J. R., 77; 11 Wend., 150.

When a plaintiff is secured in an existing action, though in a foreign state, an attachment in a second suit will be set aside.

Appeal from order denying motion to vacate an attachment.

This is an action to recover the value

of certain personal property alleged to have been converted. At the commencement of the action, plaintiff sued out a writ of attachment, by virtue of which the Sheriff of New York County attached property of the defendant to the value of $31,000. A prior suit between the same parties had been brought in Connecticut value of the same goods in respect to in an action of trover, to recover the which this suit is brought, and is still pending. In this former suit an attachment had been issued and property of the defendant had been attached, but was released on defendant giving a bond for $14,000.

5th. It was also objected that the commissioners in making the assessment regarded the fact, that the property on one side of the alley was used for residences, and on the other for business purposes. Held, That in ascertaining the relative benefit to the different parcels of Held, That while it is well settled that land it was proper to consider the situaIa suit in another State is no bar to a tion of the different lots, and their rela-second suit in this State for the same tive adaptation to uses which would be promoted by the improvement.

6th. The commissioners in assessing the benefits, took into account the fact that the opening of the alley would remove an extensive barn, building and stable, which they state were in "dangerous proximity to a portion of the property assessed."

On appeal.

cause of action, still it does not follow that the court will not take notice of the

fact of such pendency in considering questions affecting provisional remedies.

When plaintiff is properly secured by an attachment in a former action for the same cause, she should not be permitted to harrass the defendant by a second attachment. The courts should not

Held, That this was not a benefit remote, uncertain or conjectural, but that allow prosecution to degenerate into perthe advantages resulting from the re-secution. If plaintiff's claim exceeds the moval of the buildings were proper to be amount of the bond given in the former action, she may have an additional security to the amount of such excess, but not

considered.

Judgment of General Term, setting aside assessment reversed, and proceedings of commissioners affirmed.

Opinion by Andrews, J.

a cumulative one for the whole amount. The attachment should be modified to cover a sum adequate as additional secur

ity, unless plaintiff chooses to abandon appears in the facts and circumstances the similar proceedings in Connecticut, detailed to call upon the judicial mind in which case, order should be affirmed. to determine upon the weight of evidence, Opinion by Davis, P. J.; Daniels, J., the proceedings will not be void. concurring.

Brady, J., dissenting on the ground that, when a party has a right to sue, he has a right to the remedies granted in such suit by the laws of his forum.

N. Y. COURT OF APPEALS,

The affidavit stated in substance, that deponent had been engaged in investigating frauds against the City; that defendant had been tried under an indictment for fraudulently obtaining money from plaintiffs, and testimony was taken upon the trial. Also, that a committee of the Senate had an investigation of the

The Mayor, etc., of the City of New alleged frauds. On both occasions defenYork, respts. v. Genet, applt.

Decided December 21, 1875. The warrant of attachment need not contain a recital of any of the grounds authorizing its being issued. If there is sufficient shown to require a determination upon the weight of evidence, the proceeding will be valid. A prisoner escaping from a sheriff will be held to be absconding from the jurisdiction, and will be a sufficient ground for an attachment.

dant was examined as a witness; that the warrants upon which the money was drawn ostensibly for work and materials were introduced in evidence, and it appeared were deposited in bank to the credit of defendant, and a large portion applied to his own use; that the amount could not be exactly stated, but as deponent believed, exceeded $150,000; that plaintiffs were induced to pay the money A statement giving all the particulars by defendant's representations, and that which can be given will be sufficient to of others through his procurement; that fix the amount for which the attachment defendant was convicted upon the indictment, and shortly afterwards escaped from the custody of the Sheriff and absconded, and still continued concealed, although strenuous efforts had been made to discover his whereabouts.

will issue.

This was an appeal from an order of General Term affirming an order of Special Term, denying a motion to vacate a warrant of attachment in this action. The objections to the warrant were: 1st. That the warrant was void on its face, in that it did not contain a recital of any of the grounds prescribed by the Code authorizing its being issued.

Held, Not tenable: that the section of the Code (231,) prescribing the form of the warrant did not require any such recital, and nothing more could be required than as prescribed.

Held, That the affidavit was sufficient; that the only legitimate conclusion therefrom was, that the defendant had absconded from the State with the view of placing himself beyond the reach of the officers of the law, as his safety from arrest could only be secured by remaining beyond the jurisdiction of the State. That he had abandoned the State and his country to seek immunity in a foreign land, and had become a non-resident. Also, that in a civil action to recover for the same frauds of which he had been convicted, and in which he might have Held, That it was not required that been arrested, it might be assumed that the affidavits should show positively and one object of absconding was with intent unequivocally the essential facts, or that to avoid the service of civil process, and to the deponent should speak in all cases defraud his creditors, for whose claims he from actual knowledge. If sufficient has made no provision.

2d. It was objected that the affidavits upon which the attachment was granted did not contain proof of the facts, or of the ground required by the Code.

3d. It was objected that the affidavits 2d. That the defendant being under the did not sufficiently state the amount of influence of so-called spiritual mediums, plaintiffs' demand.

Held, That the statement being all that could be given under the circumstances was sufficient; that the object of requiring the statement was to enable the Judge to fix the amount for which the attachment may be issued; and that it was valid for the amount.

Order of General Term affirmed.
Opinion by Miller, J.

ATTORNEY AND COUNSELOR.

LIEN.

was not competent to direct her own affairs. 3d. That substitution could not be justly made without paying him his costs, fees and advances, made outside of the suit.

On the argument of this motion, defendant stipulated that her interest in the estate of J. B. Taylor, when realized, should be subject to any judgment that appellant might obtain against her for his services.

On appeal.

Held. That in view of the occurrences which severed the relations of defendant

N. Y. SUPREME COURT-GENL. TERM, and her attorney, connected with subse

FIRST DEPT.

Howland v. Taylor, individually and as executrix of the estate of J. B. Taylor, et al.

Decided December 6, 1875. An attorney is entitled to an assignment of his clients' interest in the case conducted by him, as security for his fees and disbursements, upon an enforced

substitution.

Appeal from order made at Special Term, directing the substitution of attorneys.

Defendant in this suit, and in other suits, had employed R. F. Andrews as attorney for herself individually, and as executrix, and desiring to make a change because of personal dissatisfaction with

quent events, it is apparent that he cannot continue as her counselor in the proceedings; but it is necessary to protect the interest of the client without sacrificing the lion of the attorney.

The stipulation given is not sufficient, for it relates to her interest in the estate of J. B. Taylor when realized, and is not a transfer of any present right, and does not prevent her conveying the interest she possesses, whatever it may be.

She should execute an assignment of part of her interest as collateral security for any sum that may be found due to Mr. Andrews, and an order of reference should be entered to ascertain the amount due him.

Order modified as suggested.

Opinion by Brady, J.; Davis, P. J.

him, she requested him to consent to a and Daniels J., concurring.

substitution, which he refused. A mo

tion was then made to substitute W. & C. as her attorneys in several suits then

CERTIORARI-HABEAS CORPUS.

pending in Oneida county, which was N. Y. SUPREME COURT-GENL. TERM,

denied, but with leave to renew. A second motion was made in New York county to accomplish the same object. Defendant set forth by her affidavits great dissatisfaction towards and a want of confidence in her attorney. Her attorney objected that he could not be removed. 1st. Unless he was shown to be incompetent or unreliable.

FIRST DEPT.

The People ex rel. Donovan, applt. v.

Hutchings, surrogate, etc., respt.

A final decree of the Surrogate and proceedings under it, which are not questioned, are conclusive against a relator, who proceeds by certiorari und habeas corpus, and a commitment of the Surrogate for a proper cause will be sustained

Appeal from order at Special Term quashing writ of certiorari.

The relator herein had been the administrator of Dennis J. Donovan and guardian of Patrick H. Donovan; but on the 8th of February, 1872, his letters of administration and guardianship

were revoked and cancelled.

Opinion by Davis, P. J.; Brady and Daniels, JJ., concurring.

CONTRACT.

N. Y. COURT OF APPEALS. Scofield, et al. applts. v. McGregor, respt.

Decided December 14, 1875. Where a contractor refuses to go on with the work, and the party employing him gets, before the time to perform his contract, a consent from him to submit their differences to an arbitrator, and agrees that the execution of the submission shall relieve the contractor from further performance, such further performauce is waived.

He was thereafter directed, by an order of the Surrogate of New York County, to pay into said Surrogate's court all moneys coming into his hands belonging to said estate, amounting to nearly $800. Failing to comply with said order, a final decree was entered by which he was fined $250, and committed to the county jail until he paid the above sums. Writs of habeas corpus and certiorari were thereupon served to bring the prisoner and the This action was upon a contract made proceedings before the Supreme Court. by defendant with plaintiff, whereby the The Surrogate in his return set forth the former agreed to do certain work in the above facts. The writs were quashed at construction of a school-house, within the Special Term, the court holding three months from the date of the conthat the final decree of the Surrogate tract. Defendant was to be paid $1,000 could not be reviewed by certiorari, but when the first tier of floor-timbers was only by appeal (as allowed in 2 R. S. 609 on. After defendant had put on these sec. 104) and it was argued that the floor-timbers the $1000 was paid. There writ was directed against the order of being some dispute about the quality of imprisonment and not against the final the work done, defendant refused to go decree. Yet the relator based his attack further in the performance of the conon the imprisonment on the ground that tract, and discontinued the work. A the decree was wrong. few days later, but before the expiration On appeal. of the time for performance, plaintiffs brought him a submission of the claims upon the contract to an arbitrator, named therein, and asked him to sign it, and agreed that the execution of that paper should relieve him from the further per

Held, Since the relator saw fit to accept the Surrogate's return without objection, he must be regarded as having accepted the recitals and order of commitment as true, and those recitals show, that upon due and orderly proceedings in the Surformance of the contract. The paper was rogate's Court, a final decree was made against him determining the amount of money belonging to the estate of Dennis J. Donovan, and for non-payment of such amount, costs, expenses, etc., he was by that court cominitted.

signed by defendant and plaintiffs, and the latter completed the work provided for in the contract, at a cost larger than the contract price. Nothing having been done under the submission, this acion was brought to recover damages

There is nothing in the return that im-gainst defendant for having abandoned

peaches the jurisdiction of the Surrogate. either of the person of the relator, or o the subject matter of the proceedings. Order affirmed.

nd refused to perform the contract.

Held, That what occurred at the time of the submission was a mutual abanlonment of the contract, and was on the