FOURTH DEPARTMENT, OCTOBER TERM, 1880. GEORGE N. HICKS AND ANOTHER, RESPONDENTS, v. SPENCER CLARK, APPELLANT. Motion for leave to appeal to the Court of Appeals denied. ARCHIBALD M. GRAHAM AND ANOTHER, AS EXECUTORS, &C., RESPONDENTS, V. MELISSA L. SNYDER, APPELLANT, IMPLEADED, &C. Motion to dismiss appeal denied with $10 costs of opposing, on the ground of waiver of the irregularity in service of notice of appeal. (People ex rel. White v. Erie C. P., 6 Wend., 549; Stevenson v. McNitt, 27 How. Pr., 335.) ANSON LAMBERSON v. HARVEY M. BANKS. Motion for leave to appeal to the Court of Appeals denied. AMY A. LAMBERSON v. HARVEY M. BANKS. Motion for leave to appeal to the Court of Appeals denied. v. ABRAM A. NATHAN JOHNSTON, RESPONDENT, BARNES, AND OTHERS, APPELLANTS. Reargument ordered. ABRAM A. BARNES, APPELLANT, v. NATHAN JOHNSTON AND OTHERS, RESPONDENTS. Reargument ordered. GEORGE D. LORD, APPELLANT, v. THE CITY OF ROCHESTER, RESPONDENT. Judgment reversed and new trial ordered before one or more other referees, costs to abide event. Opinions by HARDIN, J., and by SMITH, J., dissenting. ADA M. TOWNE, RESPONDENT, v. MARY TOWNE BURT, APPELLANT. Order appealed from affirmed with $10 costs, and disburse ments. ORVILLE ROBERTS, APPELLANT, v. HENRY C. PECK AND OTHERS, RESPONDENTS. Order of Special Term in Herkimer County affirmed, without costs. (Code Civ. Pro., § 1015.) 460 Sap375 FOURTH DEPARTMENT, OCTOBER TERM, 1880. ORVILLE ROBERTS, APPELLANT, v. HENRY C. PECK AND Order of Onondaga County Special Term appealed from affirmed, with $10 costs, and disbursements. Held, that the referee had no power to award an extra allowance under section 1022 of the Code of Civil Procedure. But the action of the court in awarding extra allowance was within its discretion. ISAAC J. EVANS, AS EXECUTOR, &c., RESPONDENT, v. ELLIS Judgment and order reversed and new trial ordered, costs to abide event. Held, that the answer to the question, "Is that your signature," did not necessarily involve a transaction or personal communication with the deceased, under section 829 of the Code of Civil Procedure. ANDREW M. JOHNSTON, RESPONDENT, v. HORACE J. Order affirmed. (Bradley v. Burwell, 3 Denio, 61, and opinion of MULLIN, J., in Cornes v. Wilkins, 14 Hun, 428, followed.) WILLIAM H. BAKER, AS RECEIVER, &c., RESPONDENT, v. LANTS. Order appealed from affirmed, with $10 costs, and disbursements. Held, that in supplementary proceedings the receiver can employ the attorney of the party for whose benefit the proceedings are instituted. FRANCIS G. HALL, RESPONDENT, v. CHARLES STICKLER, Order reversed without costs." ROSELLA T. GARTNER, AS SPECIAL ADMINISTRATRIX, &c., Order affirmed, with $10 costs, and disbursements. FOURTH DEPARTMENT, OCTOBER TERM, 1880. ELLEN HENDERSON, RESPONDENT, V. JAMES SCOTT, AP PELLANT. Order affirmed, with $10 costs, and disbursements. Held, that the order setting aside the nonsuit on the minutes was not void, but at most only voidable on appeal or by motion. CHARLOTTE BLODGETT, APPELLANT, v. ORANGE C. BLODGETT, RESPONDENT. Order affirmed, with $10 costs, and disbursements, on opinion of HAIGHT, J., at Special Term. JOHN MILLER, RESPONDENT, v. THE JEFFERSON COUNTY NATIONAL BANK, APPELLANT. Judgment of the County Court and that of the justice reversed. Held, that there was no proof of the authority of Wilbur to employ plaintiff to render the services for defendant. WILLIAM W. STARKWEATHER, APPELLANT, v. NATIONAL UNION BANK, RESPONDENT. Judgment of the County Court appealed from affirmed. Held, that the bill of sale only transferred to the plaintiff such belting as was in the shop. GEORGE W. COE, RESFONDENT, v. ALONZO B. RAYMOND AND OTHERS, APPELLANTS. Judgment and order affirmed. Held (1), that the answer does not set up a want of jurisdiction in the County Court. (Dake v. Miller, 15 Hun, 556, followed.) (2) The question of Phillips' agency was properly submitted to the jury. EATON J. RICHARDSON, AS EXECUTOR, &c., OF LUTHER HALL, DECEASED, RESPONDENT, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, APPELLANT. Judgment and order affirmed, HARDIN, J., not sitting. Held, (1) No question was taken below as to the form of the verdict. (2) The verdict was right on the merits, as the injury resulting from obstructing the flow from the spring was a continuing injury, which the former recovery did not bar. FOURTH DEPARTMENT, OCTOBER TERM, 1880. EMMA SUGG, BY GUARDIAN, RESPONDENT, v. JOSEPH M. PROZELLE, APPELLANT. Judgment reversed and new trial ordered, costs to abide event. Held, that there was no proof of probable cause. GEORGE BULLARD, RESPONDENT, v. GATES SHERWOOD AND OTHERS, APPELLANTS. Order reversed, with $10 costs, and disbursements, and motion granted, striking out the interest included in the judgment. (Gallup v. Perue, 10 Hun, 525, followed.) Sections 420, 1212 and 1213, Code of Civil Procedure, do not authorize the clerk to compute interest on an unliquidated demand. ANDREW J. PIERSON, RESPONDENT, v. LORA EDWARDS AND CORNELIUS EDWARDS, APPELLANTS. Judgment of County Court reversed, and that of the justice affirmed. Held, that the defendants killed the right dog, and at the right time. BRIDGET SIMPSON, RESPONDENT, V. THE FIRST NATIONAL BANK OF WATERTOWN, APPELLANT. Judgment and order reversed, and new trial ordered, costs to abide event. JAMES FITZGERALD, APPELLANT, V. THE ROME IRON WORKS, RESPONDENT. Judgment affirmed. HENRY J. FORWARD AND OTHERS, APPELLANTS, v. THE BANK OF BATAVIA, RESPONDENT. Order of Special Term affirmed, with $10 costs, and disburse ments. Memorandum by RUMSEY, J. THE BANK OF BATAVIA, APPELLANT, v. HENRY J. FORWARD AND OTHERS, RESPONDENTS. Order of County Court reversed, with $10 costs, and disbursements. Held, that the information sought for was not needed to enable defendants to set up payment, and not shown to be necessary for any other purpose. FOURTH DEPARTMENT, OCTOBER TERM, 1880. PENELOPE CHAPPELL, RESPONDENT, v. SUSANNAH HUEBENER, APPELLANT, IMPLEADED, &c. Order denying motion to strike out amended complaint affirmed, without costs to either party. PENELOPE CHAPPELL, RESPONDENT, v. SUSANNAH HUEBENER, APPELLANT, IMPLEADED, &c. Order granting a reference reversed without costs to either party. DAVID R. FOGELSONGER AND HENRY FOGELSONGER, RESPONDENTS, v. THOMAS FORSON, APPELLANT. Order appealed from affirmed, with $10 costs, and disburse ments. WILLIAM SOUTHERLAND AND DAVID V. BENHAM, SHERIFF, &c., APPELLANTS, v. CADY E. REED AND HENRY REED, EXECUTOR, &C., RESPONDENTS. Order appealed from affirmed, with $10 costs, and disbursements, on opinion of RUMSEY, J., at Special Term; RUMSEY, J., not sitting. See Shaver v. Brainard (29 Barb., 26). EDWARD BARTON AND DOLLY HOSNER, AS ADMINISTRATORS, &c., OF NICHOLAS HOSNER, DECEASED, APPELLANTS, v. CHARLES HOSNER AND OTHERS, RESPONDENTS. Order appealed from reversed, with $10 costs, and disbursements. Held, that there was no such proof of bad faith or mismanagement as authorized the costs to be charged upon the administrators personally. (Cunningham v. McGregor, 12 How. Pr., 305; Morse v. McCoy, 4 Cow., 551; Devoy v. Boyn, 3 Johns., 247; Withy v. Mumford, 5 Cow., 141, note.) JOHN B. STILWELL, RESPONDENT, v. GEORGE E. PRIEST, AND OTHERS, APPELLANTS. Order appealed from affirmed, with $10 costs, and disbursements. THE YATES COUNTY NATIONAL BANK OF PENN YAN, APPELLANT, v. LILIAN B. PARKE, RESPONDENT, IMPLEADED, &C. Order appealed from reversed, with $10 costs, and disbursements. |