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Bklyn. Svgs. Bk., 15 Abb. (N. S.), closure. Objection was made to the 297, distinguished.

sufficiency of the affidavits therein, Defendant requested the Court to and especially to the affidavit of pubcharge that if it exercised ordinary lication. This affidavit did not state care and diligence and paid in good in what paper the notice of the mortfaith, it was excused. This request gage sale had been published; alwas refused. though the affiant stated he was Held, no error; in the absence of foreman of a newspaper called the any rules assented to by its customers," People's Journal." The plaintiff a savings bank is to be governed by then offered to prove, aliunde, that the same legal principles which apply the notice was published in the to other moneyed institutions. When "People's Journal." The evidence it has prescribed rules and its deposi- was excluded, and the Court nontor has assented to them they are the suited the plaintiff for failure of agreement, and each party must keep proof. The plaintiff appeals. The it to preserve rights against the other. case has been twice to the Court of The duty of the saving bank will be Appeals. measured in some degree by the extent or strictness of its rules. Ordinarily it is bound to exercise reasonable care and diligence, which will be a question of law or fact, as the proofs are conclusive or conflicting.

Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Folger, J. All concur except Earl, J., not voting.

EJECTMENT. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Mowry, applt., v. Sanborn, respt. Decided September, 1877. The plaintiff, in support of his title, attempted to prove a statute foreclosure. The affidavit of publication was defective. Held, That oral evidence was not admissible to supply such defect in the affidavit; nor is such evidence competent with regard to any of the affidavits mentioned in 2 R. S., m.p., 547, 14 (relating to statute foreclosures).

The action was ejectment. It became necessary, in order to show the plaintiff's title, to prove a statute fore

Samuel Hand, for applt.

Hughes & Northrup, for respt.

Held, That the evidence was properly excluded. When this case was in the Court of Appeals for the first time, 65 N. Y., 581, a very strict rule of construing such affidavits was adopted. On the second appeal the same rule was practically adopted by a majority of that Court. And since the Court then held, limiting the rule excluding common law proof, that it was not applicable to those affidavits which are not mentioned in 2 R. S., m. p. 547, § 14, they by implication left this rule in force as to those affidavits which are mentioned in that section

(2. e., § 14). The affidavit of publication is defective, and it is mentioned in that section. We feel compelled to hold, therefore, that the evidence was properly excluded.

Judgment affirmed with costs.

Opinion by Learned, P. J.; Bockes and Boardman, JJ., concur.

CRIMINAL PRACTICE. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

The People, defts. in error, v. Casey, plff. in error.

Decided September, 1877. The prisoner was indicted, under Chap. 74, Laws of 1854, for an assault with a sharp, dangerous weapon. No evidence was given as to the precise character of the weapon. Held, That the jury might infer the character of the weapon from the nature of the injury.

The defendant was indicted under Chap. 74, Laws of 1854, for an assault "with a sharp, dangerous weapon with intent to do bodily harm." No evidence was given as to the exact character of the weapon, and it was not proven that it was one of the weapons mentioned in the statute of 1854. A physician testified to the nature of the injury, and that it was "a pretty severe wound." At the close of the evidence the prisoner's counsel moved the dismissal of the indictment, on the ground that there was no evidence to establish the offence charged. This was refused by the Court. The jury found the defendant guilty as charged in the indictment.

John H. Colby, for plff. in error. L. E. Griffith and Melville Smith, for defts. in error.

Held, That the jury might infer the character of the weapon from the nature of the injury. There was evidence before them from which they might have decided that the weapon was sharp as well as dangerous. The prisoner's counsel requested the Court to charge that the jury could not convict unless they found that the assault was committed with one of the weapons mentioned in the statute, thus admitting, by implication, that if so

committed, the prisoner might be convicted. The Court added" the same being a sharp, dangerous weapon," and charged as requested. Thus the jury must have found under this charge that the thing with which the assault was made was a sharp, dangerous weapon. If the prisoner had desired the jury to find as to the character of the weapon he should have made proper requests. The conviction and sentence affirmed.

Opinion by Learned, P. J.; Bockes and Boardman, JJ., concur.

PARTITION. RECEIVER. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Dubois, receiver, respt., v. Cassidy, applt.

Decided September, 1877.

A receiver, appointed in proceedings supplementary to execution, cannot bring an action for the partition of real estate in which the judgment debtor has an interest.

The plaintiff, a receiver in supplementary proceedings, brought an action for the partition of certain real property in which the judgment debtor had an interest. A demurrer was interposed, one of the grounds of which was that the plaintiff as receiver had not any estate of inheritance, as for life or years, in the real estate. The demurrer was overruled. This appeal is from the order overruling the demurrer.

M. Schoonmaker and J. M. Cooper, for applt.

D. E. Keyser, for respt.

Held, That the title of a receiver in supplementary proceedings is not such that he can bring an action for the

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N. Y. SUPREME COURT. GENERAL SS 4 and 5, and m. p., 537, § 19. The

TERM. THIRD DEPT.

Morrison, applt., v. Lester, respt.
Decided September, 1877.

The phrase "attachment," as used in § 321 of the Code of Procedure, designates attachment of the person and not of property. The Court will not grant an absolute order imprisoning a party for non-payment of

costs, under this section. The Revised Stat

utes seem to intend that upon the return of an attachment, the party shall have an opportunity to excuse his misconduct.

This action was brought by Morrison, and after it was at issue, one Clarke took an assignment of the action and cause of action, although notified that he would be held for the costs. The complaint was dismissed with costs. A motion was made under & 321 of the Code of Procedure S to compel Clarke to pay these costs. He had refused to pay them, on demand made. The Court made an order that he pay them, and that process in the nature of an execution against personal property issue; it further ordered that upon the return of such process unsatisfied, the Sheriff attach the body of said Clarke, commit to the common jail, and detain him there until he paid said costs. This appeal is from so much of the order as directs imprisonment for non-payment.

He

process ordered to issue would be such as might be granted in case of a contempt under §§ 23, 24, 25 (supra). There is nothing here showing the assignee guilty of contempt. might be unable to pay. The statute seems to intend that when an attachment is issued, the party on a return thereto shall have an opportunity to excuse himself for his alleged misconduct. 19 (supra).

Order reversed with $10 costs and printing disbursements.

Opinion by Learned, P. J.; Bockes, J., concurs; Boardman, J., not acting.

NEGLIGENCE. PRACTICE. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Wood, admrx., applt., v. Village of Andes.

In actions for injuries produced by negligence, it must be shown by direct proof, or from the circumstances, that the injured party was not guilty of contributory negligence; in the absence of any evidence on this subject, the plaintiff cannot recover.

The plaintiff's intestate was found dead near or under a foot bridge in the defendant's limits, under circumstances which led to the conclusion

that he had fallen from the bridge. Its condition was defective.

grantor and a third party, whereby the latter was to take up and cancel of record a mortgage upon such premises.

It was proved by the defence that The deed did not operate as an assignment of

the deceased was intoxicated on the
night of the accident, that he had
been warned of the condition of the

bridge, and that there was a safe
bridge within a few yards of this
one. No one saw the accident. The
action is brought under the general
act. The plaintiff had a verdict.
John A. Scott, for applt.
George W. Clarke, for respt.
Held, That in this class of cases it
must be affirmatively shown by direct
proof, given by the plaintiff or from
the circumstances, that the injured
party was not guilty of contributory
negligence, and where there is no
evidence on this point the plaintiff
cannot recover. 58 N. Y., 248. The
deceased was found dead, and there
was no proof that his own negligence

had not caused his death. This is a

strong case against the plaintiff; in crossing the bridge after he had been warned of the danger, and while he was intoxicated, and when he could have safely crossed another bridge a few feet below, he was proved affirmatively to have contributed to the ac

cident.

New trial ordered, costs to abide

event.

Opinion by Learned, P. J.; Bockes and Boardman, JJ., con

cur.

SPECIFIC PERFORMANCE.

N. Y. COURT OF APPEALS. Miller, applt., v. Winchell, respt. Decided September 18, 1877. An action cannot be maintained by the grantee of real property to compel specific performance of an agreement between his

such promise.

This action was brought for the specific performance of an agreement between one P. and defendant, by which P. was to give defendant a mortgage upon certain real estate for $797, and defendant agreed by parol to take up and cancel of record two mortgages upon the property, amounting to $300, held by a savings bank, and advance the balance to P. The mortgage was executed in accordance with the agreement, and delivered to defendant. The premises were subsequently conveyed to plaintiff by warranty deed for a valuable consideration, subject to the mortgage to defendant. Defendant refused to indorse a payment of $300 on his mortgage or to cancel of record the other two mortgages. Plaintiff did not know of this agreement when the premises were conveyed to him. R. B. Miller, Jr., for applt. Joseph Benedict, for respt.

Held, That this action could not be maintained; that the deed to plaintiff did not operate as an assignment of defendant's promise. It seems that the bank could have maintained an action to enforce defendant's

promise. 20 N. Y., 268; 24 Id., 178.

Order of General Term, reversing judgment for plaintiff, and granting new trial, affirmed, and judgment absolute for defendant on stipulation.

Opinion by Andrews, J. All concur, except Rapallo and Miller, JJ., absent.

NEGLIGENCE.

EVIDENCE.

U. S. SUPREME COURT. Kellogg, plff. in error, v. The St. Paul and Milwaukee RR. Company. (Oct., 1876.)

In an action to recover damages for the destruction of buildings and property by fire, arising from defendant's negligence, the question of title, as between the parties, to the ground on which the buildings and property stood is immaterial.

Where it is shown that the fire was communicated from one building to another, evidence of insurance men, as experts, that the distance between them was such that the one would not be considered an exposure to the other in fixing the rate of insurance is inad

missible.

In order to warrant a finding that negligence, or an act not amounting to a wanton wrong, is the proximate cause of an injury, it must

appear that the injury was the natural and probable consequence of such act or negli

gence, and ought to have been foreseen in the light of the attending circumstances, and that there was no independent, intermediate

cause.

In error to the Circuit Court of the United States for the District of Iowa.

trial it was admitted that the defendants owned the steamboat and elevator; that the mill was five hundred and eighty-eight feet from the elevator, and that the nearest of the plaintiff's piles of lumber was three hundred and eighty-eight feet distant from it. It was also admitted that there was conflict between the parties, plaintiff and defendant, respecting the ownership of the land where the mill stood and where the lumber was piled, both claiming under a common source of title. The plaintiff had built the mill, and he was in the occupation of it, believing he had a right to be there.

The Court refused to allow the parties to try the title to the land upon which the mill and lumber had been placed, proof of title being, in the opinion of the Court, immaterial. The verdict of the jury was, 1st, that the elevator was burned from the steamer Jennie Brown; 2d, that such burning was caused by not using ordinary care and prudence in not landing at the elevator, under circumstances existing at that particular time; and 3d, that the burning of the mill and lumber was the unavoidable consequence of the burning of the elevator.

This was an action to recover compensation for the destruction by fire of the plaintiff's saw mill and a quantity of lumber, situated and lying in the State of Iowa, and on the banks of the river Mississippi. That the property was destroyed by fire was uncontroverted. Plaintiff alleged the Held, That the proof offered was fire was negligently communicated perfectly immaterial to the issue befrom the defendant's steamboat Jen-tween the parties. By the law of the nie Brown to an elevator built of State of Iowa, "where an occupant of pine lumber and one hundred and land has color of title thereto, and in twenty feet high, owned by the de- good faith has made any valuable fendants, and standing on the bank improvements thereon, and is afterof the river, and from the elevator to wards in a proper action found not the plaintiff's saw-mill and lumber to be the rightful owner thereof," he piles, while an unusually strong wind is entitled to payment or credit for was blowing from the elevator to- the value of his improvements. Code wards the mill and lumber. On the of Iowa, §§ 1976, 1977, 1978, 1979,

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