DECISIONS IN CASES NOT REPORTED.
FIFTH DEPARTMENT, MARCH TERM, 1893.
tario County Court appealed from affirmed, with costs.
Henry R. East, Appellant, v. The Cayuga Lake Ice Line, Respondent. - Motion for a reargu-
Susan B. Anthony and another, Appellants, v. The American Glucose Company, Respondent.- Motion to amend order granted.
William B. Colvin, Respondent, v. The United States Mutual Accident Association of New York City, Appellant. - Motion for leave to appeal to the Court of Appeals denied.
William H. Ordway, Respondent, v. Village of Canisteo, Appellant. - Motion for reargument or for leave to appeal to the Court of Appeals denied.
Joseph Kress, Respondent, v. The East Side Savings Bank, Appellant. - Motion for leave to appeal to the Court of Appeals denied. Superintendent of the Poor of County of Catta
raugus v. The Superintendent of the Poor of the County of Erie. Motion for leave to appeal to the Court of Appeals granted. William T. Long v. William Long. - Motion for reargument denied.
Bridget McDonald, as Administratrix, etc., Respondent, v. New York Central and Hudson River Railroad, Appellant. -Motion to amend order granted.
Thomas P. McCormick, Respondent, v. John McCormick, Jr., Appellant, Impleaded, etc.Leave granted to defendant to make and serve a proposed case and exceptions on appeal within fifteen days on payment of ten dollars costs of opposing this motion. Richard Foran v. New York Central and Hudson River Railroad Company. - Motion to amend memorandum of decision denied. Frances A. Dyke v. William Long, Survivor.Motion for reargument denied.
ACTION - Trial of action, not barred by the pendency of another action com-
See MIDDLEBROOK V. TRAVIS...
In which an injunction is obtained. See INJUNCTION.
- For use and occupation under a lease express or implied.
See LANDLORD AND TENANT.
-Time for commencing.
See LIMITATION OF ACTION.
For money received.
See MONEY RECEIVED.
See EXECUTORS AND ADMINISTRATORS.
ADMISSION - Of a disputed fact, made in the course of negotiations for a
settlement - competent as evidence.
See MCELWEE MFG. CO. ข. TROWBRIDGE.
-Declarations by an attorney - how far competent.
ADOPTION - Of acts of agents.
ADVERSE POSSESSION - Easements-right of way by prescription - adverse user-fencing -presumption that open user was under a claim of
title and adverse - appurtenance.
See COLBURN 0. MARSH.
AMENDMENT - Eminent domain - omission in a judgment to appoint commissioners - power to supply it under Code Civil Procedure, § 724.
See MANHATTAN RY. CO. 2. STROUB...
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APPEAL - Supplementary proceedings - appeals from orders - Code of Civil Procedure, § 2433, sub. 1.] 1. An appeal does not lie directly from an original order made by a judge out of court in proceedings supplementary to execution (as, e. g., an order appointing a receiver); but if a review of such an order is desired, a motion on notice should, by force of section 2433, subdivision 1, of the Code of Civil Procedure, be made, either to the judge who made the order or to the court, to vacate the order, and from the order granted on such motion an appeal will lie. PALEN D. BUSHNELL......
2.- Order on demurrer, and interlocutory judgment - appeal - defective record.] An appeal from an order overruling a demurrer, and from the interlocutory judgment entered thereon, must be stricken from the calendar when the record does not contain the judgment, and does not show that the order and judgment have been entered.
A recital in a notice of appeal, that it is from an interlocutory judgment entered on a day named, is not sufficient evidence of the judgment, or of its entry, to enable an appeal therefrom to be heard. RIDGWAY 2. BACON... 506
3. Absence of an order denying a motion for a new trial.] Where no order denying a motion for a new trial has been entered, its absence is not supplied by the motion itself or by a notice of appeal which states that the appeal is taken not only from a judgment, but from an order denying a motion for a new trial. RICHARDSON V. HARTMANN
By an attorney on the question of costs. On an appeal by an attorney personally from so much of an order as refused costs on an accounting by a trustee, where the trustee does not appeal, no question can be raised at the General Term on the refusal to allow the trustee costs.
STATE TRUST CO. v. COWDREY
Objections to the proposed location of a railroad-proceedings under section 6 of the Railroad Law (Ch. 676 of 1892) - powers of the commissioners - original location diminished in width scope of review by the General Term.
See MATTER OF NIAGARA FALLS, ETC., Co
By corporations after judgment of sequestration and the appointment of a permanent receiver.
See AUBURN BUTTON CO. 2. SYLVESTER. Motion for a new trial on exceptions ordered to be heard at the General Term - case or bill of exceptions necessary.
See BROOKE 2. TRADESMEN'S NAT. BANK...
Facts stated in conclusions of law - satisfaction of mortgage by a gift of
Technical errors not regarded on appeal. See PEOPLE O. WEBSTER.
ARREST - Order of arrest - requisites of the affidavit.] 1. An affidavit for an order of arrest is a nullity unless it contains allegations establishing legal evidence of the existence of the facts to be shown.
Where an affidavit for an order of arrest, although made by the plaintiff, and in the form of positive statements, contains allegations of material facts, deduced from, and based upon information derived from, correspondence, such allegations are of no probative force without the production of the original letters, so that the court may draw its own conclusions therefrom.
2. Order of arrest — cause of arrest identical with cause of action.] When an order of arrest has been granted in an action in which the cause of arrest is identical with the cause of action, it should not be vacated if there is evidence before the court tending to sustain the allegations of the com- plaint which constitute a ground of arrest, and it is not made to appear with reasonable certainty that the plaintiff cannot recover in the action.
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ASSIGNMENT - For the benefit of creditors – action to set aside the assign- ment for fraud, brought after a judgment for an accounting by the assignee fraudulent intent in making the assignment.] Semble, that a judgment obtained in an action brought by certain judgment creditors on behalf of themselves and all others similarly situated, to compel an assignee for the benefit of creditors to account and to distribute the avails of the assigned estate, followed by an accounting before a referee, and the entry of an order discharging the assignee, is not a bar to an action subsequently brought by another judgment creditor, who had no notice that the judgment in the action for an accounting was to be entered or of the subsequent proceedings thereon, to set aside the assignment as fraudulent.
Query, whether a creditor who has verified and presented his claim to an assignee for the benefit of creditors can thereafter commence and maintain an action to set aside the assignment as fraudulent.
The facts that an assignor for the benefit of creditors has been employed by the assignee to prepare for market unmanufactured stock belonging to the assigned estate, and for that purpose is left in possession of the assigned estate, and that the assets of the estate bring but about half of their inventory value, are not of themselves proof of fraud in the making of the assignment, but may be justified by the circumstances.
The fact that property belonging to an estate assigned for the benefit of creditors is bid in on public sale by third persons in the interest and for the benefit of the wife of the assignor is, in the absence of evidence that the sale was collusive or that the property brought less than it was worth, slight, if any, evidence tha the assignment was made with a fraudulent intent.
The assignment of a debt, though made after the liability of directors for failing to file an annual report has accrued, carries with it a cause of action for the penalty.
ASSOCIATIONS - For insurance.
Se INSURANCE.
For mutual aid.
See INSURANCE.
ATTACHMENT - Conversion of personal property - secreting property with intent to defraud creditors.] In an action brought to recover damages for the
alleged wrongful conversion of personal property it appeared that the defend- ant, who had joined with the plaintiff in a sale, for cash, of real estate owned by them in common (under an agreement that the entire consideration should be divided between them equally and that the plaintiff should receive her half immediately upon the consummation of the sale), had received the whole consideration in money, and had failed and refused to pay the plain- tiff her share on demand or to tell her where the money was, coupled with the boast that he had it in a safe place, after having persistently falsely denied that he had the money.
Held, sufficient to support an action for the wrongful conversion of personal property, and to justify the issuance of an attachment therein on the ground that the defendant had secreted his property with the intent to defraud his creditors. ZIEGLER 2. ZIEGLER....
ATTORNEY AND CLIENT - Claims against a decedent's estate -employ- ment as an attorney.] 1. On a reference of disputed claims against a dece- dent's estate, it appeared that the claimant, an attorney, had made a contract with the decedent to defend an action for him for a certain sum, a part to be paid in advance and the balance when the case was ended; that the claimant appeared in the cause, and the client thereafter died before the case came to trial; on the client's death the claimant wrote to his executor that if he wished the claimant to represent him in the action he must pay a retaining fee, but did not inform the executor of the contract made with the decedent; the executor did not pay the claimant a retainer, but employed another attorney, to whom the claimant transferred the papers in the case, and who thereafter tried the cause; after the trial, the claimant presented to the exec- utor a claim for payment on his contract with the decedent.
The referee decided against the claim.
Held, that by not notifying the executor of the existence of the contract, and by allowing him to employ other counsel for the purpose of carrying on the litigation, the claimant had abandoned the contract, and, consequently, could not claim payment thereunder. BOLTE T. FICHTNER..
2. Employment to sell real estate.] The same claimant presented another claim against the estate, based upon an agreement of the decedent to pay him a certain commission if he should procure a purchaser for certain real estate at a certain sum, for cash. It appeared that the claimant did not find a purchaser on those terms, but he introduced evidence to show that he procured a purchaser on other terms, which terms the decedent accepted but afterwards refused to carry out.
The referee found against this claim also.
Held, that the testimony failed to substantiate the assertion that the decedent accepted the new terms of sale, and, consequently, that the finding of the referee against the claimant was correct. Id.
3. Authority of an attorney to bring an action- heirs not entitled to maintain an action for damages to realty, the title of which is in trustees.] An action to recover past damages to realty belonging to a testator's estate, the title to which is in testamentary trustees, cannot be maintained by the testa- tor's heirs, unless the trustees have refused to protect the rights of the heirs. The complaint in an action brought in the names of the heirs of a tes- tator (the title to whose realty was by his will given to trustees), and by certain other parties who had no interest in the estate, to recover, from ele- vated railroad companies in New York city, past damages to realty belong- ing to the testator's estate, was verified by one of the plaintiffs who had no interest in the action and as to whom it was dismissed on the trial, and not by any of the heirs; the attorney who brought the action claimed to have a retainer from the heirs, but did not produce it, and although he claimed to have had a conversation with one of the heirs in respect to bringing the action, could give none of the particulars.
Held, that no authority in the attorney to bring the action for the heirs was established. LINDHEIM 2. MANHATTAN RY. CO....... 4. Refusal of trustees to be made parties.] That an allegation in such complaint, that the trustees had "refused and declined to be made parties plaintiff in this action and they are made defendants for that purpose only," and proof tending to show that the only action which the trustees
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