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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-

ment denied.

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.

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ACTION - Trial of action, not barred by the pendency of another action com-

menced on the same day.

See MIDDLEBROOK V. TRAVIS...

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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.

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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.

See O'BRIEN D. WEILER..

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ADOPTION - Of acts of agents.

See PRINCIPAL AND AGENT.

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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.

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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.

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554

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

4.

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...

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391

401

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APPEAL - Continued.

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Facts stated in conclusions of law - satisfaction of mortgage by a gift of

the mortgage debt.

See THOMAS V. FULLER

361

Technical errors not regarded on appeal.
See PEOPLE O. WEBSTER.

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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.

FINLEY D. CASTROVERDE

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.

MCCLURE D. LEVY

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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.

TURNEY V. VAN GELDER

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.

See BEDFORD 2. SKINNER

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

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525

481

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ATTACHMENT - Continued.

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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