1. A writ of certiorari properly issues to re- view in this court the proceedings of a po- lice magistrate on trying a charge of aban- donment.-The People ex rel. Scherer v. Walsh, 308.
2. The fact that the police magistrate en- titled the proceedings as in Special Sessions does not affect the rights of the parties nor alter the fact that such magistrate sat as a police justice.-Id.
3. On such proceedings before the justice re- lator offered evidence to show that she had left the house of her husband, who was on trial for the abandonment, because she feared personal violence from his hands, which was excluded. Held, Error.-ld.
4. The surety on an undertaking given on a conviction under Chap. 395, Laws of 1871, relating to proceedings against husbands abandoning their wives in the county of Kings, is concluded by such conviction and cannot, in an action on the undertaking, again litigate the liability of his principal to support the woman who instituted the proceedings.-The Board of Commissioners of Charities v. O'Rourke et al., 460.
1. An action for personal injuries does not survive the death of the injured party.- Kelsey et al. v. Jewett, 166.
2. If a verdict for personal injuries is set aside and plaintiff dies before another trial, the cause of action abates.-I.
See CIVIL DAMAGE ACT, 4; WILLS, 6.
1. A woman upon whom an abortion has been produced at the instance of her para- mour is not an accomplice in the commis- sion of the crime within the meaning of the section of the Code requiring corrobo- ration of the testimony of an accomplice.- The People v. Vedder, 487.
See EASEMENT, 8; NUISANCE.
See DISCOVERY, 1-3; EXECUTORS; ESTOP- PEL, 3.
1. The U. S. District Courts have jurisdiction of a libel for towage against a canal boat without masts or steam power, and such jurisdiction is not taken away by U. S. R. S., § 4251.-Ryan v. Hook, 200.
2. A sale of the boat in such proceedings will cut off a prior chattel mortgage.-Id.
ADVERSE POSSESSION.
1. In an action to compel the specific per- formance of a contract to purchase real property it appeared that the last person who had a record title to the premises in question was one B., who died in 1816, leaving a will by which he devised such premises, with others, to his executors in trust, with power to sell same and dis- tribute the proceeds among his legatees; that in 1821 one T. was in possession of said premises, but that no conveyance to him was on record; that in 1836 a partition suit was instituted by the heirs and devisees of B. to divide all his real estate then un- distributed under his will, and that the premises in question were not included in such suit; that T. continued in possession of the premises, claiming them as his own, until 1867, when he died, leaving a will, and that in 1882 his executor, under a power of sale contained therein, conveyed the premises to the plaintiff. Held, That defendant should be required to perform his contract to purchase the property.- Ottinger et al. v. Strasburger, 79.
1. The officer before whom affidavits may be taken without the State, under § 844, Code Civ. Pro., is one who is authorized to take acknowledgment of deeds by the laws of
this State and not by those of the State of his residence.-Ross v. Wigg, 215.
2. The fact that the officer knew the affiant or had satisfactory proof of his identity need not be certified by the officer. --Id.
3. A certificate by the clerk that he knows the name of the officer subscribed to the jurat to be the autograph signature of such officer is a substantial compliance with § 844.-Id.
See ATTACHMENT, 3, 4, 9, 11, 12; DEPO- SITIONS, 1, 5.
1. Plaintiff's boat, with a load of sand con- signed to defendants, arrived at the latter's wharf near the middle of the night. A watchman in the employ of defendants was upon the wharf, to whom the plaintiff ap- plied for directions as to where the sand was wanted, and was answered by the watchman that he could not tell, but he in- dicated a point upon the wharf where sand had previously been received by defend- ants. Plaintiff moored his boat at that point, and upon the tide going out the boat rested upon the ground, which at that place proved to be uneven, and for that reason inflicted the injury to the plaintiff's boat, which was the subject of the action. Held, That the watchman had apparent authority to indicate where a vessel might be safely moored, and that the defendants could not escape liability for his act by asserting that his real authority extended only to the pro- tection of the premises against fire, etc.- Barber v. Abendroth Bros.. 7.
2. An agent authorized to sell reaping ma- chines and to give them a pretty good rec- ommendation, has implied power to bind his principal by a warranty.-Brayley v. Dow, 433.
3. Where the court in charging the jury mis- stated the agent's testimony in this partic- ular; that he would warrant the machine "for five years to do good work, but the principal's counsel neglected to call the attention of the court to the fact, and the whole case was tried upon the theory that the machine was defective from the first, Held. That this did not prejudice the prin cipal, if the court was justified from the evidence in charging that there was a war- ranty.-Id.
4. Where the agent admitted that he said he would warrant the machine to do good work and to be durable and strong, the court is justified in charging that a war ranty was given.—Id.
5. An agent cannot create an authority in himself to do a particular act by its per- formance or by asserting his authority to do it.-Fowler v. The Howe Machine Co., 521.
See CONTRACT, 16; FIRE INSURANCE, 1; MUTUAL BENEFIT SOCIETIES, 2; NEGLI- GENCE, 1.
1. The defense of a human being justifies the killing of a dog.-Becher v. Lutz, 484.
2. The owner of an animal may lawfully kill a dog, if such killing be necessary to save the animal from death or from serious in- jury.-Id.
3. If two dogs are fighting, and cannot other- wise be separated, the dog that made the attack may lawfully be killed.—Id.
4. If it be proved that a dog is accustomed to bite mankind, and that it was upon the highway unmuzzled, and in a condition to do injury to human beings, the killing of it is lawful; and there is no rule of law limiting proof of acts of ferocity to those committed within a year prior to the trial. -Id.
1. In summary proceedings to remove a ten- ant from possession, instituted before a justice of the peace, no appeal lies for a new trial in the County Court.-Brown v. Cassady, 56.
2. The acceptance by a party or his attorney of the costs awarded to him by a judgment precludes him from thereafter appealing from said judgment.-Carll v. Oakley et al.,
3. Where a judgment directs the payment to defendant of costs "to be adjusted by the clerk," the insertion of the amount thereof in the judgment is not necessary in order to entitle defendant's attorney to demand them.-ld.
4. Where a judgment is reversed upon the facts it is the duty of the successful party to see that the order of reversal shows that to be the case; if the order does not state that it was made on questions of fact the reversal will be deemed to have been made on questions of law only, and can only be justified by some error of law. The opinion of the court cannot be cited to sustain it.- Shaw v. The N. Y., L. E. & W. RR. Co., 136.
5. An objection which might have been ob- viated if raised on the trial, but which was not so raised, is not available on appeal.- Id.
6. Where neither the order of Special Term, vacating an attachment, nor the order of affirmance at General Term, specifies the ground on which they were made, it cannot be said by the Appellate Court that they were not made on the ground specified in the order to show cause on which the mo- tion to vacate was based.-Bate v. McDowell et al., 268.
7. No appeal will lie to the Court of Appeals from an order vacating an attachment on the ground of insufficiency of the affidavit on which it was granted.-Id.
8. An order of General Term reversing a judgment below is appealable although it is silent as to the reasons or facts which led to such reversal. If the court was influ- enced by questions of fact and it is material to the respondent to make this apparent, he should see that the order shows that such was the case.-The Rider Life Raft Co. v. Roach, 297.
9. An order of General Term, reversing an order denying motion to punish a contempt of court, and remitting the case for further proceedings, is not a final order, and is not appealable to the Court of Appeals.-Cros- by v. Stephan, 373.
10. A party to an action cannot avail himself of such parts of a judgment therein as are favorable to him and then appeal from those which are adverse, where the provisions of the judgment are so connected and depend- ent as to make it inequitable to permit such an appeal.-Harris v. Taylor et al., 379.
11. Where, under Code, § 191, sub. 3, the permission of the General Term is requisite to go to the Court of Appeals, the applica- tion must be made at the next General Term after judgment is entered. If not made then it will be too late, and the court has no power to relieve.-De Freest et al., v. The City of Troy, 401.
12. An appellate court will not consider ques tions which can be presented only by an appeal from the decision of an inferior court unless the questions are within the record; hence on appeal from an order granting a new trial on the minutes, the court will not consider the question whether the verdict was contrary to the evidence when the case does not show that the mo- tion for a new trial was made on that ground.-Hinman v. Stilwell, 401.
13. Where the case does not disclose the ground on which the motion was made, the exceptions taken on the trial cannot be con- sidered on the appeal.-Id.
14. The Special Term made an order granting a peremptory writ of mandamus command- ing defendant to audit certain bills. The General Term modified this order, but still directed a peremptory mandamus com-
manding defendant to audit a bill of about $400. Upon application by defendant to be allowed to appeal to the Court of Ap- peals under Code, § 191, sub. 3, Held, That the application was unnecessary; that an appeal from an order granting, in the first instance, a writ of peremptory mandamus is to be treated as an appeal from a final order in a special proceeding.-The People ex rel. Collins v. Spicer, 444.
15. The refusal of sureties upon an undertak- ing to stay proceedings pending an appeal to the General Term to justify, after their sufficiency has been excepted to and notice of justification served designating a time for that purpose, relieves them of their liability upon such undertaking, and such liability cannot be revived, without their consent, by the withdrawal of the excep- tion and waiver of justification.-Hoffman et al. v. Smith et al., 476.
16. An undertaking on appeal to the Court of Appeals must be executed by at least two sureties; the appellant cannot himself be one of the sureties, nor can the approval by a judge of a guaranty company under chap. 486, Laws of 1881, take the place of the two sureties.-Nichols v. MacLean, 492. 17. An appellant is only required to file the return and serve the printed cases. respondent may, if he so desires. place the case on the calendar and notice for argu- ment.-Id.
18. If appellant desires the appellate court to review the evidence upon the merits, he is required to make a motion for a new trial, either upon the minutes of the court, or upon a case and exceptions, and appeal from the order denying the motion, appeal simply from the judgment brings up for review only questions of law.- Olmstead v. Reed, 503.
19. A judgment entered upon the direction of the court upon the trial of an issue of fact cannot be reviewed unless a decision is signed and filed determining the issues of fact and law.-Benjamin v. Allen, 542.
See CERTIORARI, 1; CONTRACT, 15, 22; DRAINAGE; EMINENT DOMAIN, 13, 14; JUDGMENT, 6; PLEADING, 3; PRACTICE, 4, 8-11; TAXES, 10.
1. What facts are sufficient to show an in- tent to dispose of property with intent to defraud creditors within the statute relat- ing to orders of arrest and warrants of at- tachment.-Ross v. Wigg, 215.
See FALSE IMPRISONMENT, 2.
1. Relator was convicted of assault in the third degree and was sentenced to imprison-
ment in State prison for one year. Held, That the offense was punishable only by fine or imprisonment in a penitentary, or county jail; that as the Court of Sessions exceeded its jurisdiction its judgment could not be enforced; but the conviction being valid, relator was not entitled to a discharge on habeas corpus.-The People ex rel. Devoe v. Kelly, 53.
2. Defendant was clerk of a school district, and issued to plaintiff, the collector, the warrant for the collection of the school tax. Held, That as he thus set plaintiff in motion he was not in a position to justify an assault upon plaintiff for the purpose of prevent- ing the collection of the tax by a levy on his property, on the ground that such levy was illegal because plaintiff had not given the bond required by law.-Bingham v. Evans, 181.
1. Under the charter of Buffalo a claim by a property owner for damages by reason of a change of grade of a street may be made within one year after the actual change of the grade.-The People ex rel Brisbane et al v. Zoll et al., 174.
2. The assessors set off against the damages suffered by relators the benefit received. Held, That whether any rule of law was violated to the injury of the adjoining owners was a question of law and the de- cision of the assessors thereon was open to review. --Id.
3. The city of Dunkirk has power to assess a street railway on its structures for a share of the cost of a sewer laid in the street through which the railway runs.-The People ex rel. The D. & F. RR. Co. v. The City of Dunkirk, 230.
4. A city took title to a strip of land for a street. The street as laid out passed through hills and over ravines. In making this street, where it passed through hills, the contractor made slopes on adjacent private property at a proper angle to prevent slides, and where the street crossed ravines the fillings were made in part on private prop- erty in order to secure the established width at grade. The adjacent owners en- croached upon acquiesced in this construc- tion. Held, That one assessed for the im provement but whose lands were not invaded and who had paid the assessment under protest could not recover the sum paid. Moore v. The City of Albany, 282.
5. An assessment cannot be declared valid in part and plaintiff be given judgment for another part declared void.―ld.
6. It seems that in such a case the city would not be liable even to an adjacent owner for cuts and fills made upon his land.-Id.
7. The complaint in an action to vacate a portion of an assessment alleged that the expense of the improvement had been in- creased by reason of the illegal action, frauds and irregularities of defendant's officers, but did not specify the irregular- ities, frauds or illegal actions. Held, That it merely stated a legal conclusion and was insufficient.-Knapp v. The City of Brook- lyn, 345.
8. The amendment of 1874 to Chap. 338. Laws of 1858, does not apply to the City of Brooklyn.-Id.
9, The court has power to order the sever- ance of a joint petition under Chap. 38, Laws of 1858, and to grant leave to the petitioners to serve separate petitions, and a proceeding under a separate petition served under such leave must be considered as a continuation of the one originally instituted. In re petition of Mehrbach, 389. See CLOUD ON TITLE, 1, 2.
1. An order not drawn upon or designating any particular fund, nor specifying any amount to be paid, but merely directing the payment of "the amount of our account with them" (the payees), may, by virtue of a parol agreement between the drawer and payees, and notice thereof to the drawee, operate as an equitable assignment of mon- eys to become due, so far as may be neces sary to satisfy the amount of the present and any future claims that may be due to the payees of the order.-Rowley et al. v. The First M. E. Ch., 205.
See EVIDENCE, 34; FRAUD, 19; JUDGMENT, 4; MORTGAGE, 16, 17; SET OFF, 3.
ASSIGNMENT FOR CREDITORS.
1. An assignee for the benefit of creditors cannot by any word or act of disclaimer relieve himself from the obligation to col- lect the estate and distribute it according to the assignment.-Crouse et al. v. Froth- ingham el al., 22.
2. The recording of an assignment made for the benefit of creditors under the Act of 1877 is not essential in order to pass the title to the property assigned, as against an attaching creditor levying thereon after the delivery and acceptance of the assignment. -McBlain v. Speelman, 455.
3. When a general assignment for the benefit of creditors has been properly acknowl- edged both by the assignor and assignee, but the certificates of acknowledgment an- nexed thereto are defective, the notary taking such acknowledgments may, after the death of the assignor, make proper certificates. and the assignment may then be filed and recorded and take effect from
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