NOTE. A star (*) indicates that the case referred to is annotated.
bring the question again before the court of appeals.-Duffy v. Duffy, 533.
5. In an action by a receiver against a fraudulent grantor and grantee as the only defendants to set aside a fraudulent conveyance, a revival will be ordered against the executor of the latter without any supplemental summons, under Code Civil Proc. N. Y. $ 757, which provides that, upon the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, on motion, allow or compel the action to be continued by or against his representative or successor in interest.-Palen v. Bushnell, 63.
1. In an action by the administrator of a lunatic's estate against his committee for an accounting, defendant's plea that another action between the parties for an accounting was pending in the common pleas, where defendant was appointed, fails, where the evidence shows that plaintiff had that action discontinued on the day he brought this; that on defendant's motion the order of discontinuance was vacated; and that plaintiff subse- 6. After an action to set aside a convey. quently moved for leave to discontinue, which ance as fraudulent has been referred, it is was finally, and before trial in this action, too late, on a motion to revive against defendobtained on appeal to the court of appeals.ant's executor, to raise the objection that Butler v. Jarvis, 137.
2. Under 2 Rev. St. N. Y. pp. 447, 448, $$ 1, 2, providing that actions for wrongs to the property, rights, or interests of another may be brought against the personal representatives of the tort-feasor the same as actions for breaches of contracts, except in cases of slander, assault, and some other personal injuries, an action by a receiver of a corporation against its trustees for an account of the assets of the company alleged to have been misapplied by them does not abate by the death of one of the defendants, but may be revived against his administratrix.-Pierson v. Morgan, 898.
plaintiff is a non-resident of the state, that his bond is void, or that the plaintiffs in the sup plementary proceeding are dead, and have no personal representatives, as all such questions will be assumed to have been determined before the reference was ordered.--Id.
7. A revival by a receiver will not be prevented after issue joined, because the plaintiff has not obtained leave of court to sue, as under Code Civil Proc. N. Y. § 499, an objection to plaintiff's capacity to sue is waived, if not made by demurrer or answer.-Id.
In a prosecution for abduction, the people cannot in the first instance, and for the purpose of making out a prima facie case, show that girls other than the person claimed to have been abducted were seen to visit defendant's room.-People v. Gibson, 170.
3. Where, pending an action to foreclose a mortgage, defendant, the owner of the equity of redemption, dies, and, without any steps to make her heir a party, a reference is taken, and a sale ordered and made, it is error to require the heir, who asks to be substituted as a defendant without delay, upon learning of the proceedings, to pay the whole costs incurred since the death of the ancestor, including those of the reference and sale, as a condition of permitting her to be made a par- See Insurance, 15-17. ty.-Van Loan v. Squires, 371.
4. The plaintiff in an equitable action died Evidence of, see Criminal Law, 5. in 1877, and nothing was done in the case un- til 1888, when her successors in interest moved to have the action revived and contin. ued. The application was denied on the ground of laches, under Code Civil Proc. N. Y. 757. Held that, as the two decisions of the court of appeals on the proper construc- tion of this statute are in direct conflict, and as the later decision makes no reference to the first, the order would be affirmed, so as to V.4N.Y.S.-61
What constitutes, see Attorney and Client, 7. What constitutes.
1. Defendant agreed to accept certain property of his debtor in satisfaction of a debt ow(961)
ing to him. The value of the property was not agreed upon, and no bill of sale was exe- cuted. The property was afterwards sold for less than the amount of the debt. Held, that the transaction was not a sale of the property in payment of an antecedent debt, but consti- tuted an accord and satisfaction.-Weeks v. Zimmerman, 609.
Effect-Presumption.
2. One who presents his bill for a certain amount, and compromises for a smaller amount, signing a receipt in full on payment thereof, cannot recover for additional items of the same account not included in the origi- nal bill, without proving them, and their omission from such bill, and explaining the omission.- McNamara v. McEntee, 620.
By assignee, see Assignment for Benefit of Creditors, 9-15.
committee of lunatic, see Insanity, 3-10. executors, etc., see Executors and Admin- istrators, 3-8.
guardian, see Guardian and Ward, 9-15. trustee, see Trusts, 16, 17.
1. Defendant bought goods of plaintiff, and afterwards returned a portion of them, on the ground that they were defective. After some correspondence a proposition made by him, that if plaintiff would give him credit for the goods returned he would pay the balance of the bill, was accepted. Held, that an account became stated between the parties, and that, although plaintiff brought an action on the original bill to recover such balance, he was not precluded from a recovery, no objection having been made to evidence of the account stated.-Aylsworth v. Gallagher, 853. Impeachment for mistake.
Against administrator for payment of lega- cies, see Executors and Administrators, 9-11.
envoys, immunity, see Ambassadors and Consuls.
By and against corporations, see Corpora- tions, 7-9.
assignee, see Assignment for Benefit of Creditors, 16.
banking corporations, see Banks and Banking, 6.
executors, etc., see Executors and Ad- ministrators, 15, 16.
receivers, see Receivers, 5, 6.
servant, for discharge, see Muster and Servant, 2.
For breach of bond, see Bonds, 2.
damages, see Conspiracy, 1, 2.
rent, see Landlord and Tenant, 9, 10. On guaranty, see Guaranty, 4, 5. Particular forms, see Assumpsit; Creditors Bill; Deceit; Ejectment; Libel and Slan der; Partition; Specific Performance; Trover and Conversion.
Power of trustee to sue, see Trusts, 13. To set aside assignment, see Assignment for Benefit of Creditors, 17, 18.
fraudulent conveyance, see Fraudulent Conveyances, 3–7.
Severance-Death of party.
In an action to foreclose, a prior mortgagee was made a party defendant, and answered, setting up his mortgage as a superior lien. Pending a reference, he died, and plaintiff proceeded with the reference without an or- der reviving or continuing the action against his representatives. On filing the referee's report, which sustained the superiority of the deceased mortgagee's lien, plaintiff waived all claim to priority over such lien, and moved for judgment of foreclosure, according to the report, and, in effect, that the action be sev- ered, so far as the deceased defendant was Civil Proc. N. Y. §§ 1204, 1205, providing that concerned. Held proper practice, under Code where, in an action against two or more, a several judgment is proper, the court may re- quire plaintiff to take judgment against one or more of the defendants, and direct that the action be severed, and proceed against the others. -Ferris v. Hard, 9.
Adjoining Land-Owners. Liability for fires, see Negligence, 8.
2. In an action for commissions on sales, it appeared that defendant shipped goods to plaintiff, and to purchasers procured by him. Of the goods shipped to plaintiff, several lots were seized by the customs officers for viola- tion of the revenue laws, and plaintiff had to pay sums by way of penalties, increase of du- ties, etc., to effect their release. The miscon- duct of defendant's employés in putting unin- voiced goods in the packages, for which plain- tiff was not responsible, occasioned the ex- pense. By an error this expense was included See Executors and Administrators. in an account stated between the parties at a less sum than the actual amount. Held, that plaintiff should, on proof of such mistake, be allowed the correct amount, as the effect of an account stated may be avoided by showing a mistake therein.-Ract v. Duviard-Dime, 156.
Acknowledgment.
Of debt, see Limitation of Actions, 7.
1. Laws N. Y. 1873, c. 830, relating to the adoption of children, provides by section 13 that any agreement in respect to such adop- tion shall be in writing, signed by the county
judge or judge of the supreme court, and the same, or a duplicate, filed with and recorded by the county clerk, may be used as evidence. Held to relate to the manner of evidencing the adoption, and not to the facts on which the order of adoption was to be made, and a strict compliance with the terms of the act was not essential to the validity of the pro- ceedings, in the absence of such requirement by the statute.-People v. Bloedel, 110.
2. The signature of the county judge who executed the adoption papers appeared in three places,-once after the consent of the mother of the child, again at the time of the order of adoption, and finally at its foot,-and the whole was attached together, making one paper. The consent of the person adopting the child, and that of his wife, was not signed by the judge. Held that, if it was essential for the judge to sign each consent, his failure to do so would not render the adoption papers void, but voidable only by persons not bound by reason of such failure; and as the mother executed her consent, and the judge signed it, she cannot allege the infirmity of the papers. -Id.
Adverse Possession.
Of cemeteries, see Boundaries. Right to divert stream, see Waters and Water-Courses, 1, 2.
Of sale for delinquent taxes, see Taxation, 18.
For arrest in civil action, see Arrest, 3-6. attachment, see Attachment, 1-5.
AGISTMENT.
Lien for keeping animal.
1. Laws N. Y. 1872, c. 498, § 1, as amended by Laws 1880, c. 145, provide that a person keeping any animals at livery or pasture, or boarding the same, for hire, under any agree- ment with the owner thereof, may detain such animals until all charges for their keeping shall have been paid. Held, that a mortgagor of certain horses, who, after having defaulted, in the performance of the conditions of the mortgage, but being still in the possession of the horses, entered into an agreement with the plaintiff for their keeping, was an "own- er" of the horses, within the meaning of the statute.-Corning v. Ashley, 255.
· Priority over mortgage.
2. Such statute having been in force when the mortgage in question was executed to de- fendant, and the required notice of the lien arising under such statute and agreement having been given to the mortgagee, such lien took precedence over the mortgage.-Id.
3. The fact that plaintiff had a mortgage in- terest in the horses by the terms of the same
When lies-Waiver.
1. In an action for rent against a lessee and her sureties, the complaint alleged that de- fendants executed a joint and several bond, conditioned for the payment of the rent. The bond offered in evidence was signed by all the defendants except the lessee, and its admis- sion was objected to. Plaintiff then asked leave to amend so as to conform to the facts. The complaint was then dismissed as to the lessee, without objection, and plaintiff stipu- lated to serve an amended complaint on a cer- tain day. Held, that plaintiff waived the right to appeal from the order of dismissal.- City of New York v. Kent, 802. To court of appeals.
2. Code Civil Proc. § 1336, which provides for an appeal directly to the court of appeals from a final judgment entered at a trial term, after exceptions, heard in the first instance at general term, have been overruled, is not made applicable to appeals from the city court of New York to the court of common pleas.- Mayer v. American Ins. Co., 617.
3. Code Civil Proc. § 3191, does not permit an appeal to the New York court of common pleas, from a final determination of the gen- determination was made upon an appeal to eral term of the city court, unless that final that court.-Id.
4. The questions whether the fact that one lot of goods sold is faulty raises a presump- tion that another lot is also faulty, and wheth- er a buyer may reject the goods purchased
whenever they happen to be in the custom-, house, without examination or proof that they are defective, are not of sufficient novelty or importance to justify the granting of leave to appeal to the court of appeals.-Wallace v. Blake, 557.
5. In an action against an express company by the sender of a package alleged to have been lost, for its value, it appeared that the package was tendered to the consignee, who refused it on the ground that she had not bought it. The consignee's daughter after- wards called at defendant's office, and di- rected the package to be sent to her mother's store. No authority in the daughter to give the order was shown. The package was then carried to the consignee's store, and delivered to one W., who was behind the counter, and appeared to be a clerk. W. receipted for the package in his own name. The consignee de- nied that W. had any authority to receive goods for her. It was held by the common pleas that the evidence was not sufficient to prove W. an agent of the consignee. Held, that leave to appeal to the court of appeals would be refused.-Nebenzahl v. Fargo, 554. 6. An order of the city court, special term, denying, for want of jurisdiction, a motion to consolidate five actions, the amount in contro- versy aggregating over $2,000, was reversed on appeal to the general term, and the motion remitted to be heard on its merits, and for the exercise of the discretion of the special term. On appeal from that order to the common pleas, general term, the appeal was dismissed on the ground that the order was not appeal- able. Held that, as the order of the city court, general term, did not affect any substantial right, or determine the action, the motion for leave to appeal to the court of appeals must also be denied.-Bush v. Abrahams, 533. Appealable judgments and orders.
upon their judgments are appealable in the same manner as orders in actions in said courts, while such orders in other courts are reviewable in the first instance by motion on- ly,-an order made by the county court in proceedings on a judgment so docketed, re- quiring the defendant to pay money to the sheriff, is appealable to the general term.- Billington v. Billington, 504. Practice-Reargument.
11. A reargument will not be granted un- less it appear that some question decisive of the case, and duly submitted by counsel, was overlooked, or that the decision is in conflict with an express statute, or with a controlling decision to which the court's attention was not called.-Duncan v. Root, 613.
12. Where appellant is advised of the ques- tion of the appealability of an order by the opinion of the court below, and has ample op- portunity to be heard thereon, and the appeal is dismissed on that question, he is not en- titled to a reargument.-Uhler v. Ryer, $34.
13. An order of the city court, special term, denying, for want of jurisdiction, a motion to consolidate five actions, the amount in contro- versy aggregating over $2,000, was reversed on appeal to the general term, and the motion remitted to be heard on its merits, and for the exercise of the discretion of the special term. On appeal from that order to the common pleas, general term, the appeal was dismissed on the ground that the order was not appealable. This point was raised in the printed brief of appellee, and the decision was made after a full hearing. It was also argued on a motion to resettle the order dismissing the appeal. Held, that the appellant's motion for reargu ment on the ground of surprise must be de- nied.-Bush v. Abrahams, $33.
14. On appeal from an order, the determina- tion of the judge below, as to whether all the papers used on the motion for the order were printed, and as to whether they were correct- printed, will not be reviewed.-Shipherd v. Cohu, 393.
7. Under Code Civil Proc. § 1022, providing that in trials without a jury the decision of the court must state separately the facts found and the conclusions of law, where the record shows a judgment entered on a decis-ly ion which refers to another paper in the case as containing the facts found, the appeal will be dismissed.-Furber v. McCarthy, 274.
8. Under Code Civil Proc. § 1300, allowing an appeal from an order, or "a specified part thereof," an appeal will lie from so much of an order as requires a party substituted as a defendant in lieu of her deceased ancestor to pay the costs of the action, though no appeal be taken from the residue thereof.-Van Loan v. Squires, 371.
9. An order of a surrogate refusing to dis- miss a petition for the revocation of a will, for the omission of a legatee as a party, is not appealable.-In re Phalen's Will, 408.
10. Under Code Civil Proc. §§ 1342, 2433, 3017, providing that appeals from orders af- fecting substantial rights, made by county courts in actions brought therein or pending therein on appeal, may be taken to the gener- al term of the supreme court; that justices' judgments docketed in the county clerk's of- fice become judgments of the county court; and that orders made by county courts in pro- ceedings supplementary to executions issued
15. Where an appeal from an interlocutory judgment is not taken in the proper time it can only be reviewed, if at all, on appeal from the final judgment.-Fales v. Lawson, 254.
16. Where, on a former appeal, it was de- cided that the complaint was erroneously dis- missed, the ruling of the trial court on the second' trial, denying a motion to dismiss a National Thread Co. v. Mansfield Silk & similar complaint, will not be disturbed.— Thread Co., 226.
Objections not raised below.
17. Objections to the admissibility of evi- dence not made at the trial will not be heard on appeal.-Davis Sewing Machine Co. v. Best, 510.
18. Where evidence is objected to on a cer- tain ground, another and different objection, raised for the first time in the appellate court, will not be considered.-Devereux v. Sun Fire Office of London, 655.
19. Where no motion is made in the trial
court for new trial on the facts, or to set aside the verdict for any cause, and no exception is taken to the charge, a verdict for defendant will not be disturbed. -Schoonmaker v. Niver, 254.
20. Where the verdict in conversion in jus- tice court is simply "for the plaintiff for the return of the property," without assessing its value, and judgment is entered on the verdict, and no attempt is made to have the verdict corrected, plaintiff, on appeal from the judg- ment, cannot have it reversed for such defect in the verdict. DYKMAN, J., dissenting.- Mitchell v. Mitchell, 72.
21. It cannot be objected on appeal that a certain contempt proceeding was erroneous, because the court received testimony on the hearing, where the order for oral testimony is made and the testimony taken without objec- tion from defendant, as it will be presumed that the whole proceeding was by consent.- King v. Barnes, 247.
22. Where evidence as to a personal trans- action with a decedent is admitted in viola-
tion of the statute, under a general objection, the causes rendering such evidence improper not being called to the attention of the court, such objection will not be considered on ap-
peal.-Sheil v. Muir, 272.
23. Error in refusing to direct a verdict in favor of plaintiff is available to plaintiff al- though there was no exception to such refusal. -Benson v. Gerlach, 273.
Discretion of trial court.
24. Under Code Civil Proc. N. Y. § 2546, au- thorizing a surrogate in a special proceeding other than one for the probate or revocation of the probate of a will in his discretion to appoint a referee to report on a specific question of fact, subject to the confirmation of the surrogate, an order appointing a referee to report on the question of the legitimacy of the petitioner in a proceeding to revoke letters testamentary, that issue being raised by the pleadings, and material to the right of the petitioner to main- tain the proceeding, is discretionary with the surrogate, and not reviewable on appeal.-In re Pearsall, 365.
the deceased being to the effect that the in- sured made true answers to inquiries made on his application for life insurance, while that of the agent and medical examiner is di- rectly to the contrary, a verdict for plaintiff will not be set aside as against the evidence. O'Brien v. Home Ben. Soc., 275.
29. In an action for conversion of chattels, by a wife who claims as mortgagee of her husband, against a sheriff selling the same under an execution against the husband, where the evidence of the husband and wife, corroborated by some circumstances, tends to establish the good faith of the mortgage, while other facts tend to show that it is fraudulent, the finding of the referee in favor of plaintiff will be upheld on appeal; such testimony, if believed, being sufficient to meet the requirement of 2 Rev. St. N. Y. p. 136, § 5, imposing the burden of proof in such case on the wife.-Manchester v. Tibbetts, 23.
Matters not apparent on record. 30. An order denying a motion for a new trial will not be reviewed unless it has been formally entered, and appears in the printed -Victory v. Foran, 392.
findings are not available where the requests to find are set out, but there is nothing to show what disposition was made of such re- quests, or that they were ever passed upon.- Mooney v. Fagan, 21.
31. Exceptions to a refusal to make certain
the question is afterwards decided properly. 32. An erroneous ruling is harmless, where -Butler v. Jarvis, 137.
Objections waived.
33. Where no objection is made to the as- sumption of certain facts by the court in in- structing the jury, and no request made for the jury to pass on them, any objection will be considered waived.-O'Laughlin v. George H. Hammond & Co., 582.
34. Remarks of the court to the counsel rel- ative to the examination of a witness should be made the basis of a motion for a new trial, or they cannot be taken advantage of on ap- peal.-O'Connor v. National Ice Co., 537. Effect of appeal.
35. The pendency of an appeal from an or- der of a surrogate enjoining a guardian from acting as such until the final determination of proceedings for his removal will not oust the surrogate of jurisdiction to make a proper modification of the injunction order.-In re Plumb, 831.
26. The findings of the trial court on the is- sue of fraud against creditors in a conveyance of property by a debtor will not be disturbed on appeal, unless unsupported by or clearly For insurance, see Insurance, 7–11. against the weight of the evidence.-Murray Hill Bank v. Van Antwerp, 364.
27. Plaintiff's claim for a yearly salary be-
ing supported only by his own testimony, See Criminal Law, 1. which was contradicted by that of defendant and his agent, as well as by certain yearly statements of account between the parties, a finding by the referee for defendant on that issue is warranted by the evidence.-Ract v. Duviard-Dime, 156.
28. The evidence of the son and daughter of
Liability of attorney for arrest of judgment debtor, see Attorney and Client, 1. Of debtor, stay of execution, see Escape, 1,
« AnteriorContinuar » |