Слике страница
PDF
ePub

INDEX.

ABANDONMENT.

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.

ABATEMENT.

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.

ABORTION.

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.

Vol. 20.-No. 251

ADJOINING OWNERS.

See EASEMENT, 8; NUISANCE.

ADMINISTRATOR.

See DISCOVERY, 1-3; EXECUTORS; ESTOP-
PEL, 3.

ADMIRALTY.

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.

AFFIDAVIT.

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.

AGENCY.

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.

[ocr errors]

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.

AGREEMENT.

See CONTRACT.

ALIMONY.

See CONTEMPT; DIVORCE.

ANIMALS.

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.

APPEAL.

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.,

58.

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.

INDEX.

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-

593

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.

The

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.

An

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.

ARREST.

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.

ASSAULT.

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.

See RAILROADS, 13-15.

ASSESSMENTS.

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.

ASSIGNMENT.

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

« ПретходнаНастави »