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
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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.
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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,
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