Digest. P., a party, but who did not appear, was ordered to pay his proportion of said allowances: Held, error; that while the trustees were entitled to be allowed their reasonable expenses, including counsel fees, and P. was properly charged with his proportion thereof, the counsel for the other parties should look to their respective clients for compensation, and the latter were not entitled to call upon others to share this burden. (Savage agt. Sherman, 87 N. Y., 277.) 30. While, where all of the parties to such an accounting appear by counsel, it may be proper for them to agree to have the counsel fees of all paid out of the common fund, yet where one of them has not litigated, and no allowance is made to him, he should not be compelled to contribute to the counsel fees of those who chose to litigate. (Id.) ́ COUNSEL FEE. 1. Counsel fee should be allowed where the wife has succeeded before the referee, in case the husband desires to further prosecute. (Donnelly agt.. Donnelly, ante, 481.) COUNTER-CLAIM. See COSTS. Thayer agt. Holland, ante, 179. COURTS OF SESSIONS. 1. Under the constitution and laws of this state, the crime of petit larceny is not a felony, but simply a misdemeanor, triable and punishable as such. (People ex rel. Loughlin agt. Finn, 87 N. Y., 533.) 2. It is not necessary to set forth in a warrant of commitment issued 1. upon a judgment of a court of special sessions, that the prisoner was convicted of petit larceny charge as a first offense; it is sufficient if it appears that the conviction was for an offense of which said court had jurisdiction. (Id.) CREDITOR'S ACTION. The complaint shows that the Atlantic and Great Western Railroad Company issued, in 1874, $1,000,000 of $1,000 bonds, maturing in 1904 (of which plaintiff owned thirty-six), on each of which was an agreement of the Erie Railway Company guaranteeing to the bearer "the due and punctual payment of the interest thereon;" that no interest had been paid on these bonds since November, 1876; that the Atlantic and Great Western Company had become insolvent and its property and franchises had been sold under foreclosure, and the Erie Railway Company had been, in an action brought by the attorney-general in the name of the people, dissolved on the ground of insolvency; that the Erie Company's property had previously been sold to trustees on foreclosure; and afterwards, in pursuance of a plan and agreement, had been transferred to a new corporation, the New York, Lake Erie and Western Railroad Company, one of the defendants; and that at the time of the commencement of the Erie foreclosure action the Erie Company owned several millions of property not included in the mortgage foreclosed, which was sold under the foreclosure to the prejudice of the plaintiff and other unsecured creditors. The pleadings and judgments in both the foreclosure and people's Erie suits are set forth in the complaint. The plaintiff asserts that the Erie property not included in the mortgage foreclosure constituted a trust fund to be applied to the payment of the interest on the Atlantic, and Digest. Great Western bonds through the guaranty, and that the foreclosure proceedings, and all the proceedings in the people's suit, so far as they ratified the sale of the property not included under the mortgage, were fraudulent and void, and that the court rendering the judgments had no jurisdiction, and asks that all orders and decrees in those actions be set aside so far as they affect the property referred to, and that it be distributed among plaintiff, and those similarly situated, to the extent of 1. the interest on these bonds: Held (on demurrer to complaint): 1. That plaintiff is not entitled to equitable relief because he has not exhausted his legal remedies against his debtors. 2. The alleged debtor corporations should have been made parties to the action; and it is no sufficient answer that one is insolvent and the other dissolved, the default having arisen in 1876, and the Erie Company not having been dissolved until 1879. 3. The court had jurisdiction to render judgment in the people's suit and foreclosure action, and by the judgments in those actions the subject-matter presented in this action has been fully adjudicated; and as all these things appear by the plaintiff's complaint the conclusion follows that no cause of action is disclosed therein. 4. The receivership of Jewett in said two suits, as it existed before final judgment, was not of such a nature as to make it subject to the statutory provisions requiring notice to be given to creditors to present their claims, and it does not avail plaintiff, therefore, that no notice was given him in those actions. (Herring agt. New York, Lake Erie and Western Railroad Company, ante, 497.) CREDITOR'S BILL. 1. A creditor's bill will lie to reach personal as well as real property claimed to have been transferred 1. 2. A voluntary absence of a prisoner from the court room during his trial for a felony is not such error as would render his trial illegal or vitiate the conviction. (Id.) 3. The accused being on trial for a felony, wished to communicate by telephone with a witness, and started to leave the room. The district attorney objected, but he left the room and was absent for a period of five minutes, and his counsel continued the cross-examination of a witness in the meantime. It was in an ante-room, Digest. con fifteen or twenty feet from the judges' bench, which was nected with the court room by swinging doors, which are not shown to have been closed at the time. He was close by, within call, and could have been notified at once. No new witness was called, and no evidence taken that it was important to hear. This absence was a voluntary one, at his own request, for his own benefit, and, we may assume, essential for the protection of his rights. The place was really a part of the court room, and connected with it as a matter of convenience, if not necessity: Held, that under such circumstances the right of the accused has not been invaded or the law violated. (Id.) 1. 4. On the trial of an indictment Held, that evidence to show the cost of the coffin to be furnished by A. was inadmissible, as being too remote. (Id.) 5. The judge stated in his charge that the offense was a misdemeanor. Both counsel had stated to the jury the punishment to result from conviction, and no exception was taken to the charge until after the verdict: Held, that this portion of the charge did not necessarily, under the circumstances, inflict any injury upon the accused. (Id.) DAMAGES. On the 10th day of March, 1874, H. being indebted to S. in the sum of forty-one dollars and fifty cents, delivered to him a receiver's certificate of the N. Y. and O. M. R. R. Co., by which it was certified that the bearer of it was entitled to receive out of the assets of said road as they came into the hands of the receivers, $100 and interest. S., when he took the certificate, agreed that when the debt was paid he would deliver it to H., or if collected he would pay the balance to him after deducting the costs of collection. In December, 1879, H. tendered to S. his debt and interest, and demanded the certificate, which S. did not deliver, saying he had sold it. In an action by H. against S.: Held, that H. was entitled to recover the value of the certificate as of the time of the tender to S. of the amount of his debt and demand of the certificate. (Hopper agt. Smith, ante, 34.) The sale by S. in March, 1878, was not of itself a conversion and did not, against the will of H., create a cause of action in his favor against S., for the conversion of the certificate so as to require H.'s damages to be the value of the certificate at that time, with interest. On the contrary, the cause of action did not accrue until the demand and refusal, and the measure of damages is the value at that time. (Id.) 3. The stock cases, Markham agt. Jandon (41 N. Y., 235), Baker agt. Drake (53 N. Y., 211), Gruman agt. Smith (81 N. Y., 25), and the cases of sales by factors, cited and distinguished. (Id.) 4. In a suit for damages for breach of contract, where the contract has not been terminated by afflux of time, damages may be recov ered up to the time of the trial 1. The court, having the right in its discretion to refuse leave to discontinue an action or special proceeding, can determine upon what terms it may grant leave. Its discretion in this respect is not limited to the payment of costs. (In re Waverly Water- Works, 85 N. Y., 478.) 2. Where, therefore, in proceedings to acquire lands under the act in relation to water-works companies (chap. 737, Laws of 1873, as supplemented by chap. 415, Laws of 1876), after the report of commissioners appointed to appraise damages, the company moved for Where a plaintiff, who has obtained a preliminary injunction, after it has been served, enters an order vacating it, and subsequently, without the consent of defendant; obtains an ex parte order discontinuing the action, these orders are equivalent to a determination that plaintiff was not entitled to the injunction, and defendant is entitled to an order of reference to ascertain his damages by reason thereof. (Pacific Mail S. S. Co. agt. Toel, 85 N. Y., 646.) DISCOVERY. 1. The petitioner, a son of S. A. Martine, deceased, and an infant, petitioned the court, through his guardian, for leave to examine the books of S. A. Martine & Co., of which his father was a member during his life; and, also, the books of the succeeding firm, alleging that such examination would disclose a fraud in the sale of the interest of his father to his copartner, who is petitioner's halfbrother: Held, that though, as a general rule, the discovery of the books of a copartnership will not be permitted in an action against one of the copartners, yet in this case, Digest. where the new firm was, to a certain extent, a continuation of the old firm, and one of the partners of the new firm succeeded to the interests of his deceased partner in the old firm, and continued to be representative of its assets; and the other partner, who had for years been in the employment of the old firm, having purchased an interest in such assets, and taken it subject to all the equities existing in reference to those assets, a discovery of the books of both firms should be allowed, so far as they relate to the assets and subject-matter of the action; it not appearing that the discovery is unnecessary or unreasonable. (Martine agt. Albro, ante, 215.) 2. It is in the discretion of the court below, whether to set aside a subpœna duces tecum; so also, whether permission shall be granted defendant to inspect and copy plaintiff's books; and the exercise of this discretion is not reviewable here. (Clyde agt. Rogers, 87 N. Y., 625.) DISTRICT COURTS. 1. The justices of the district courts in the city of New York have no power to adjourn a case of their own motion or otherwise without a verified answer being filed on the return day where the plaintiff served a verified complaint with the summons. The plaintiff having duly excepted to such adjournment does not waive his rights by going to trial on the adjourned day. (Ahrens agt. Burke, ante, 50.) 2. The justices of district courts have no power to interplead parties under the Code of Civil Procedure. (Id.) 8. District courts are courts of limited jurisdiction. When a justice presides in a summary proceeding provided by statute, his powers are limited and restricted. Equitable defenses are not available. (Crawford agt. Kastner, ante, 90.) 4. Whether B. was entitled to the renewal which was contemplated by the original agreement, depends entirely upon facts and circumstances, which, if disputed, necessarily required the adjudication of a court of competent jurisdiction, and was an issue of law which a district court justice was not competent to determine for want of jurisdiction. (Id.) 5. The rule is well settled that, when the defense is an equitable one, in a summary proceeding, application may be made to, and the powers of a court of equity invoked to restrain the proceedings, and to transfer the contention to its jurisdiction. (Id) 6. After an adjournment had at defendant's request, it is too late to remove a cause from a district court to the court of common pleas. (Dinkle agt. Wehle, ante, 298.) DIVORCE. 1. When a decree of separation from bed and board has been entered in favor of a wife against her husband, without any provision for the maintenance of the wife, she cannot afterwards have the decree changed so as to make such provision, by showing that the husband's pecuniary circumstances are such that an allowance of alimony would be proper. (Erkenbrach agt. Erkenbrach, ante, 194.) 2. Evidence in actions for divorce upon the ground of adultery should be closely scrutinized, and unless clearly convincing and pointed, the presumption of innocence should prevail. In such actions the defendant is at the |