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3. As to whether a father may recede from
an agreement with one who has reared the
1. In 1789 and 1795 the State made treaties child under it, quære.-Id.
with the Cayuga Nation of Indians, giving
them and their posterity forever
annuity in return for the cession of their
lands in this State. Some of these Indians
then lived in Canada, but at the request of
the State authorities joined in the treaty.
1. An injunction will not lie under the State
About 1810 a large part of the Indians, up
sanitary laws to restrain the sale of imports
to that time resident in this State, went to
of teas in original packages, though such
Canada and ever since remained there.
teas be adulterated, unless they be shown
They took part against this country in the
to be unwholesome or deleterious to health.
war of 1812. Since that time no part of
- The Health Dept. of N. Y. v. Purdon et al.,
the annuity has been paid them. The
whole has been apportioned among bands See EASEMENT, 1, 5, 6 ; LEASE, 8; SUMMARY
of the Cayuga Nation in the United States.
By Chap. 234, of the Laws of 1841, the
defendants have jurisdiction in questions INSOLVENT INSURANCE COMPANIES.
relative to Indian nations and parts of
nations and their rights under treaties.
See LIFE INSURANCE, 5, 6.
The relators, the Canada branch, now com-
prise the head chief (who has in bis pos-
session the original treaty) and about
three-fourths of all the Cayugas. Upon 1. In an action against a municipal corpora
their application to be heard by defendants tion on a contract against which severa
upon the question of sharing in the an. parties had filed claims judgment was ren!
nuity, Held, That defendants had juris. dered for a certain sum, with interest. On
diction in the matter and that it was appeal the judgment was modified as to the
their duty to hear the petitions. That interest included therein. Held, That de.
defendants having denied their petition fendant was chargeable with interest on the
the relators could properly invoke the aid principal sum from the date of the judg.
of this Court to compel defendants to ment and not from the modification thereof.
perform the duty imposed upon them by -The Mechanics & Traders' Nat'l B'k v. The
statute. That no reason appeared why Mayor, &c., of N. Y. 322.
relators should not share in the annuity.-
The People ex rel. the Cayuga Indians v. The
See New YORK CITY, 3; RAILROADS, 4;
Board of Com’rs of the Land Office, 505.
1. When a person commences an action to re-
See BawDY HOUSES ; CRIMINAL LAW, 4; cover a sum of money claimed to be due
FORGERY, 4 ; PERJURY, 1.
from the defendant, and two other persons
also claim the same sum adversely to the
plaintiff and to each other, and one of them
claims only a portion of such sum, the
1. A mother, in contemplation of death, con remedy of the defendant, who makes no
signed her child to Mrs. D., with the assent claim to the money, is by an action in the
of the latter's husband, to be brought up nature of an interpleader, and not by a
by her. There was no adoption of the child motion under $ 820, Code Civ. Pro., to sub.
by Mrs D., or her husband, and no relin stitute the two other claimants as defend.
quishment by the father of his right to the ants in the action brought against him.-
custody and care of the child. Held, D. The New England Mut. Life Ins. Co. v. Ke-
has no right to the custody of the child as ler, impld., 482.
against the father ; but, prima facie, he is
entitled to compensation for the care of the
child, bestowed by his wife at his home ;
See CERTIORARI, 4.
and declarations by the wife that she, with
her husband's permission, agreed to render
the services gratuitously, are mere hearsay
as against him.- Derr v. Cooley et al. 109.
1. Defendants and other stockholders of a
factory executed a note, which was paid a
2. In proceedings to have the Court deter year after maturity by S., one of the
mine to whom the custody of a minor child makers, who delivered it to plaintiff, to
shall be awarded the rights and interests of whom he was indebted, made payments
the child are paramount, and it is error to thereon and afterwards became bankrupt.
exclude evidence of the home and surround About the time of delivery of the note to
ings of the respective parties seeking the plaintiff, S. and another person purchased
custody of such child. - The People ex rel. the rights of all the other stockholders in
Brush et al. v. Brown, 516.
the factory, assuming payment of this and
all other debts of the company. In an ac-
tion for contribution, Held, That although
the note was extinguished as such by its
payment by S., it remained in his hands as
evidence of a right to contribution against
his co-sureties, and that the delivery of the
note to plaintiff passed this right to him.-
Dillenbeck v. Dygert et al., 229.
See CORPORATIONS, 8.
collected. It is not necessary that such
ownership should be proved by the produc-
tion of the deeds.- Potter v. Weidman, 110.
5. An order for judgment setting aside con-
veyances as fraudulent as to plaintiff and
declaring his judgment the prior and supe-
rior lien does not authorize the insertion of
a clause in the judgment declaring that
plaintiff is entitled to execution.-Bush v.
Preston et al., 190.
6. The signature of the judge forms no part
of the judgment entered and need not be
contained in the copy of judgment served
to limit the time within which an appeal
may be taken.-Clapp et al. v. Hawley et al.,
See APPEAL, 19; ATTORNEYS, 9; EVIDENCE,
15, 20; SET-OFF, 4; SURETYSHIP, 1, 2.
1. A judgment of a court of a foreign country
is not conclusive upon and will not be en-
forced in the courts of this State unless
upon a proper examination it is established
that the cause of action upon which it was
recovered is one recognized by the common
law and the proceeding in which it was
obtained was one in which a trial was had
in accordance with the rules of the common
law; and if such is not the case, even the
appearance of the party in the foreign court
will not be regarded as conclusive of his
rights or as affecting them at all injuriously.
- Anderson et al. v. Haddon, 6.
2. A statement upon which to enter a judg.
ment without action under the Code is not
sufficient, where it merely states and sets
out a promissory note, executed by the de-
fendant to the plaintiff, as the consideration
of the indebtedness. The facts out of
which the indebtedness arose should be
concisely stated. — Combs v. Bowen et al., 57.
3. The court may, in a proper case, allow
such statement to be amended nunc pro
tunc so as to sustain the priority of the
judgment entered thereon as against sub-
sequent valid judgments; but where a note
was executed ihe day before the confession,
in settlement of a debt claimed to be due
and owing from parent to child for services
and for money loaned, and was antedated,
and an action by the administrator of a
third person was then pending against the
parent, upon which judgment was subse-
quently entered ; and such administrator
also recovered a judgment for costs against
him upon the reference of a disputed claim
made by said parent against the estate,
Held, That the court properly refused,
under the circumstances, to allow such
amendment to be made nunc pro tunc, so as
to prejudice the rights of the administrator,
and that the latter's judgments were enti-
tled to priority.-Id.
4. If a judgment creditor who has assigned
his judgment covenanting that he will not
receive or collect nor release nor discharge
the same, satisties it of record, and if the
judgment debtor is responsible, and the
judgment could have been collected, he is
liable to his assignee for the amount due
upon the judgment. In an action to recover
such amount the judgment debtor will be
allowed to testify that he owned real estate
out of which the judgment could have been
Vol, 20—No. 26a.
1. The court will relieve a purchaser of real
estate upon a judicial sale from his bid if
there is some practical and serious question
affecting the title upon which persons not
parties to the suit, and who cannot be es-
topped by the judgment, have a right to be
heard in some future litigation which may
arise. — The People v. The Globe Mut. Ins.
2. In the chain of title to certain real estate
sold upon foreclosure of a mortgage there
appeared a conveyance by one Martin, as
special guardian of certain infants, to one
Mather for $8,000, and a simultaneous re-
conveyance by the latter to the former for
$100. Held, That such conveyances were,
upon their face, presumptively fraudulent
and invalid, and, unexplained, entitled the
purchaser to be relieved from his bid.-Id.
See MORTGAGE, 1, 7-11; SURROGATES, 2.
1. Where an objection to the jurisdiction of a
county court is put upon the ground that,
by statute, the Court has no power to hear
the action, and where the defect complained
of does not appear upon the face of the
complaint, the objection may properly be
taken by answer; and such answer, though
setting up other defences, is not a waiver of
the defect.—Heenan v. The N. Y., W. S. &
B. RR. CO., 415.
See ADMIRALTY, 1; ATTACHMENT, 1; ATTOR-
NEYS, 15; INDIANS; SURROG TES, 1; Town
1. A juror, being questioned as to his fitness to
try the case, said that he had formed an
opinion, but that he thought his opinion
would not influence his verdict. The court
then said: ". You reflected, I suppose, that
you do not find a verdict in a criminal case
upon the balance of the evidence, but that of the goods before the filing of the lease.
the evidence must be such as to remove Reynolds v. Elis et al., 64.
every reasonable doubt of guilt?” Held,
That there was nothing improper in the 2. The lessor not having acquired an ac-
judge's remark, and the juror not having tual lien by taking possession prior to the
finally sat on the trial the question whether assignee, his equities are not superior to the
there was error in his examination is not other creditors represented by the latter.-
brought up by appeal.- The People v. Pet Id.
3. A receiver of the estate of a deceased per-
2. Where a juror stated that he had formed an son, who is invested with all the real and
opinion, but thought that he could render personal property of said estate and who
an impartial verdict on the evidence, Held, enters into the possession of certain real
That the court was authorized to determine property under a lease executed to decedent,
that the juror was competent.—The People becomes liable as receiver for the rent of
v. Dewey, 555.
said property and must pay the same out of
any funds of the estate which may be in his
JUSTICE OF THE PEACE.
hands whether derived from the real or per-
sonal property — Moore v. Higgins, 123.
1. When a case has been adjourned to a fixed
hour to await the return of a venire issued at
4. The fact that such receiver has been dis-
the request of the plaintiff, it is error for
charged by an order obtained without no-
the plaintiff, in the absence of the defend-
tice to the plaintiff in a suit against him
ant, to waive his venire and without wait-
ing an hour take judgment.
pending at the time of such discharge is no
The justice defence to such suit.-Id.
loses jurisdiction by calling the case before
the time.—Horton v. Hawkins, 17.
5. Plaintiff made a lease to W., by its terms
2. A justice's decision upon an issue regarding
making the parties to it tenants in common
which the evidence is conflicting is conclu-
of the crops then growing and thereafter to
sive.— Boone v. Kalb, 26.
be sowed on plaintiff's farm, and giving
plaintiff a lien on W.'s share. Held, That
3. When a person other than a constable serves
the lease not having been recorded, it is not
a justice's summons he need not show his good as against a subsequent mortgagee in
authority to the person served.—Hayes v. good faith of W.'s share. - Thomas v. Ba-
4. Error will not be presumed, but all fairly 6. The possesion of one tenant in common is
permissible intendments will be allowed in not notice to subsequent purchasers of any
support of a proceeding under review. interest the co-tenant may have in the share
of the actual possessor.-Id.
5. A justice of the peace does not “hold the
7. When one person has taken a lease to which
office of justice or judge of any court” another is known to him to be equitably
within the meaning of Art. VI. of the Con-
entitled he may be decreed, in an action
stitution, and the limitation contained
therein does not apply to said official. —
brought for that purpose, to be a trustee for
the benefit of the party rightfully entitled,
The People et rel. Lawrence v. Mann et al.,
as against him, to the use and occupancy of
the property under the lease, but subject
See EstOPPEL, 1; EVIDENCE, 12, 13; FALSE
to the performance of its terms by him.-
McRoberts v. Harrison et al., 228.
IMPRISONMENT, 1; LIMITATION, 6; RE-
8. When summary proceedings to evict a ten-
ant who is equitably entiled to a new lease
are brought in a court having no equitable
1. A lease giving the lessor a lien, as security jurisdiction for the purpose of putting into
for any rent due and unpaid, upon all the possession a new tenant who has taken a
goods and chattels which may be upon the lease with kuowledge of the equitable rights
demised premises belonging to the lessee, of the other, their prosecution may be en-
or to any one holding or claiming the prem joined in an action brought to obtain a de.
ises under him as assignee or otherwise, cree declaring the second lessee to be a
and authorizing the lessor to take and sell trustee for the first.-Id.
the goods in the same manner as upon de-
fault in a chattel mortgage, is equivalent to 9. If leased premises are by fire rendered unfit
a chattel mortgage, although no title passes for occupancy the tenant may surrender
to the lessor, but only an equitable lien or possession and refuse to pay rent.-Smith v.
mortgage created ; and such lease must Kerr, 246.
be filed according to the provisions of the
statute, otherwise it will be void as to cred 10. A parol agreement is ineffectual to change
itors, etc. So Held, as against an assignee the amount of rent under a sealed lease for
for benefit of creditors who took possession more than one year.-Id.
11. By resolution of the electors of Gravesend
in 1871, it was provided that the common
lands should be let only at public auction on
notice, and that no lot should be let at a
time more than one year prior to the ex-
piration of any existing lease thereof, nor
more than ten years.
By resolution in
1878 this was amended by adding that the
Land Commissioners are authorized to
renew any existing lease upon terms which
they deem most advantageous to the town.
Plaintiffs held leases which expired in 1882
and 1883. The Commissioners renewed
them in 1880 and 1879 respectively. Held,
That the limitation in the resolution of 1871
was not nullified by the resolution of 1878,
and that the renewals were invalid.--Til-
you v. The Town of Gravesend, 529.
See CORPORATION, 13; FRAUD, 2; NEGLI-
GENCE, 20; RAILROADS, 1.
See SET OFF, 1; WiLLs, 6.
1. The publication and circulation by a mer-
cantile agency of a circular among its cuis-
tomers and correspondents, containing the
following reference to plaintiff : “Canan-
daigua, - -Kingsbury, Sherman--
at the bottom of
* For explanation, please
call at our office.” Held, That the publi-
cation was not libelous upon its face ; that
the stars had no other signification than as
a marginal reference, and that evidence
offered to show wbat effect the publication
would have upon the minds of witnesses or
the creditors of the plaintiff was not ad-
missible. -Kingsbury.v. The Bradstreet Co.,
complete the contract so as to bind the ap-
plicant until he has an opportunity to exam-
ine the policy and has assented to its terms.
-King v. The U. S. Life Ins. Co., 203.
3. In an action to procure the restoration of
policies and an accounting on the ground
of fraud of defendants' officers in procuring
plaintiffs to exchange said policies for new
ones containing more onerous conditions,
the Court found as facts that there was no
fraud or misrepresentation, and that plain-
tiffs secured advantages by the new policies
at least equal to those surrendered by them,
and had suffered no damage. Held, That
in the absence of valid exceptions to rulings
there was no question to review.-Hencken
et al. v. The U. 8. Life Ins. Co. et al., 412.
4. In view of the impossibility of placing a
precise pecuniary value on the various pro-
visions of the policies, and the wide differ-
ence existing among experts in relation
thereto, the question whether a policy holder
will be damnified by an exchange is pecu-
liarly a question for the parties interested to
determine for themselves.-Id.
5. When the person insured by a policy of
life insurance in an insolvent company dies
during the process of the winding up of the
affairs of said company, and within a very
short time after the filing of such policy
with the receiver for valuation, and before
the actuary engaged in calculating the val-
uations of the policies issued by said com-
pany has made his report, and proofs of
such death are furnished to the receiver
before the making of said report, the
policy should be valued as a death claim
against the assets of the company and not
as an existing and continuing insurance.—
The People v. The Knickerbocker Life Ins.
6. Upon an application for a re-valuation of a
policy it is in the discretion of the Court
to make such order as may seem just and
See DEEDS, 4; RAILROADS, 2-4.
See BROKERS, 5.
1. In an action upon a policy of life insurance
which by its terms declares that the death
of the insured by suicide is not a risk as-
sumed by the insurance company, when,
upon the cross-examination of one of the
plaintiffs' witnesses, the proofs of death
furnished to the company are introduced in
evidence by it, and such proofs show that
the insured was held to have committed
suicide, at a coroner's inquest held upon his
body, a prima facie defence is established,
and the complaint will be dismissed, unless
the plaintiff shows that death resulted from
some other cause.—Goldschmidt et al. v.
The Mutual Life Ins. Co., 95.
2. The acceptance by an insurance company
of an application for insurance does not
1. In an action for money loaned, the Court
found that the cause of action, if any, ac-
crued more than seven years before action
brought, and declined to find on plaintiff's
request that it was a case of mutual accounts
or reciprocal demands. Held, That the
finding disposed of the case and that the
action was barred by the statute of limita-
tions.- Havemeyer el al. v. Quintard et al.,
2. When an action upon a contract is com-
menced within the time limited therefor by
the statute of limitations, a counterclaim
arising out of the contract set forth in the
complaint as the foundation of the plain-
tiff's claim is not barred by the statute of
limitations although the pleading contain-
ing it is not served until after the expiration
of the time limited by said statute for the
commencement of an independent action
upon such counterclaim.-Herbert et al. v.
3. A. died February 6, 1876, and in the same
month B. was appointed administrator, but
did nothing as such except draw from bank
some money of A.'s. B. died May 18, 1880,
having in his will nominated C. as bis ex-
ecutrix. Petitioner was, on September 22,
1880, appointed administrator de bonis non
of A., and on December 14, 1881, filed with
the Surrogate his petition, under $ 2606,
Code Civ. Pro., praying for judicial set-
tlement of the account of B. as adminis-
trator, and that C. as executrix show cause
why she should not render such account,
and deliver to petitioner any of such prop-
erty which had come to her hands or was
under her control. Held, That the petition
is not barred by the statute of limitations.
-In re petition of Clark v. Intz, 235.
4. The word "return” in section 401, Code
Civ. Pro., containing exceptions to the
limitation of actions, applies as well to a
person coming from abroad, where he has
resided, as to a citizen going abroad for a
time and then returning. But the return,
in order to set the statute running, must be
so public and under such circumstances as
to give the creditors an opportunity, by the
use of ordinary diligence and due means,
to prosecute the debtor.—Engel v. Fischer,
if the vessel is not seaworthy the policy
does not attach.- Van Wickle et al v. The
Mechanics & Traders' Ins. Co., 143.
2. If it appears that the vessel shortly before
sailing became leaky, unfit to perform the
voyage, or sank without encountering any
peril or storm, this is presumptive evidence
of unseaworthiness. - Id.
3. A policy of marine insurance provided
that its general language should be con-
trolled by the indorsement of special risks;
that the perils insured against were those of
the seas and all other perils, &c., to said
goods or any part thereof; that perishable
articles or those damaged before shipment
should be warranted free from average un-
less general. Plaintiff was insured by in.
dorsement on 1,650 bbls. of potatoes on
canal boat, F. P. A. After 109 bbls. were
delivered the boat sunk and the greater part
of the cargo lost. Held, That it was the
intention of the parties to exempt the in-
surer from payment of any loss occurring
to a portion only of the cargo, and that de-
fendant's liability was terminated by the
delivery of a material part of the cargo.—
Chadsey v. Guion, 361.
5. In May, 1867, the wife of testator conveyed
to S. property which was her separate
estate, and in the transaction a part of the
purchase price was paid the testator for the
use and benefit of the wife. She did not
demand the money in his lifetime. He
died in May, 1874. Upon the accounting
of the wife as executrix, Held, That the
claim was barred by the statute of limita-
tions.-In re estate of Cole, 534.
6. A judgment was recovered in justice's
court in 1873, and in 1880 was docketed in
a county clerk's office. In 1884 a motion
was made for leave to prosecute it in this
court. Held, That the six years' limitation
fixed by $ 382, subdiv. 7, of the Code of
Civ. Pro. applied, and that the action was
barred. -Slocum v. Stoddard, 556.
See Banks, 6, 7; FIRE INSURANCE, 13; FRAUD,
5, 21 ; GUARDIANS, 5; SURETYSHIP, 5.
See APPEAL, 14 ; Taxes. 7.
See EVIDENCE, 11.
1. A promise of marriage made on condition
of illicit cohabitation is without considera.
tion and void.—Levis v. Goetschius, 140.
2. When a man and woman marry and the
man has a wife living at that time, but that
fact is not known to the woman, who in.
tends to contract a valid relation, and it
subsequently becomes known to her and
she still continues to live with the man,
and the former wife subsequently dies and
information of her death is received by
them, and they thereafter live together as
man and wife, holding themselves out to
the world as such, a new and legal marital
relation will be presumed to have arisen,
dating from the death of the former wife.
-The Polar Star Mut. Ben. Ass'n, v. Boni-
face et al., 522.
See EVIDENCE, 43–45.
1. Plaintiff, a married woman, not carrying
on a separate business, was injured. By the
same accident her husband was injured,
and he has an action pending therefor. The
Court, after stating the ground upon which
damages could be given plaintiff in this
action, said, “for her discomfort in the
past and for her discomfort in the future
and for her inability to labor you may also
compensate.” Held, Error ; because under
this language damages might have been
given the wife by the jury for loss of ser-
vices, which latter were the
property of the
husband.—Hloughkirk v. The D. & I. C.
See FORGERY, 1, 2.
1. In every case of marine insurance there is
an implied warranty of seaworthiness, and