MEMORANDA OF CASES NOT REPORTED IN FULL. v. THE PEOPLE EX REL. THE TENTH NATIONAL BANK OF THE CITY OF NEW YORK, RESPONDENT, ANDREW H. GREEN, COMPTROLLER, ETC., APPELLANT. Certificate of commissioner of new county court-house — when admissions of agent not admissible against the principal — Mandamus — disputed questions arising in proceedings by-how determined. This was an application for a peremptory mandamus to compel the appellant to pay over to the relator the sum of $242,579.94, which amount the relator claimed to have advanced to the commissioners of the new county court-house, between the 29th day of April and the 2d day of September, 1871. In order to prove that such moneys had actually been advanced, a certificate to that effect, given by the said commissioners more than a month after the last payment had been made, was produced and read upon the motion. Upon an appeal from an order awarding a peremptory mandamus, held, that the certificate could not be received for the purpose of supporting the relator's claim against the city and county. The admissions of an agent cannot be proven for the purpose of creating a liability against his principal, unless they are made so near the time of the transaction they relate to, as reasonably to be considered in some sense explanatory of it. * Where the right to a mandamus depends upon disputed facts, the questions arising thereon should not be decided on conflicting affidavits, but issues of fact should be joined and tried according to the course of the common law. † APPEAL from an order directing a peremptory mandamus to issue commanding the respondent to draw his warrant, in favor of the relator, for the sum of $44,000, with interest from July 2, 1872. * Anderson v. Rome and Watertown R. R. Co., 54 N. Y., 334; Jex v. Board of Education, 8 Sup. Ct. R., 157. + Ex parte Rogers, 7 Cowen, 526; People v. Comrs. of Hudson, 7 Wend., 474 ; People v. Supervisors of Schuyler, 2 Abb. (N. S.), 78; People v. Green, 8 N. Y. S. C. R. (1 Hun), 1. FIRST DEPARTMENT, DECEMBER TERM, 1874. John K. Porter and John H. Strahan, for the appellant. John W. Edmonds, Henry E. Davies and Henry H. Anderson, for the respondent. Opinion by DANIELS, J. DAVIS, P. J., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. ATLANTIC SAVINGS BANK v. SELAH HILER, APPELLANT, AND J. P. FITCH, RESPONDENT. Surplus moneys - Rule 77 — what claims constitute liens under power of court to protect. lien of attorney— The defendant Hiler, having recovered a judgment against one Stokes, commenced an action thereon, the defendant Fitch acting as his attorney, to have the same declared a lien on certain premises which, he alleged, were purchased with money belonging to Stokes, and recovered a judgment therein directing the sale of the said premises to satisfy his judgment. Subsequently the premises were sold under the foreclosure of a prior mortgage. Upon an application for the distribution of the surplus moneys, a reference was ordered to ascertain the amount due to Hiler and any other person which was a lien on such moneys. Upon the hearing before the referee, the defendant Fitch claimed a portion of the moneys by virtue of his lien, as attorney, upon the judgment recovered against Stokes. Hiler did not object to his appearance, but opposed the allowance of the amount claimed by him. His claim was allowed by the referee, and from the order confirming the report this appeal was taken; the appellant insisting that Fitch had no right to appear before the referee, and that his claim could not be allowed under Rule 77. Held (1), that the order of reference authorized the appearance of Fitch, and that the error, if any, could only be corrected by an appeal from that order; (2), that as no such objection had been made before the referee, it could not now prevail; (3), that as the whole proceeding was had by consent, even if it was not good as a reference, it was good as an arbitration between Hiler and Fitch to settle the amount due to the latter out of the money held by the judgment of Hiler; (4), that the court will not permit a party to take money out of its control without compensation to the attorney by whom it was obtained, and that even if Fitch had no such lien as to authorize him to file a notice under Rule 77, the court had power, for the protection of its officers, to direct the payment of his claim out of moneys controlled by it. HUN-VOL. III. 27 FIRST DEPARTMENT, DECEMBER TERM, 1874. APPEAL from an order of the Special Term confirming the report of a referee upon the distribution of the surplus moneys arising from the sale of certain premises upon the foreclosure of a mortgage. Henry J. Schenck, for the appellant. J. P. Fitch, for the respondent. Opinion by WESTBROOK, J. DAVIS, P. J., and DANIELS, J., concurred. Order affirmed, with costs. UNION DIME SAVINGS INSTITUTION v. JOSEPH W. DURYEA, GIBBONS L. KELTS, AND OTHERS, APPELLANTS, AND HENRY C. BISPHAM, RESPONDENT. Surplus moneys—judgment "secured on appeal"-effect of restoration of lien of. On the 17th of March, 1873, Bispham recovered a judgment against Keech, which was, on the twenty-eighth of the following July, marked "secured on appeal." On the 29th of December, 1873, a new trial was granted, on the ground of newly discovered evidence, the judgment being crdered to stand as security. Between the twenty-eighth of July and the twenty-ninth of December, Keech, in order to secure a prior indebtedness, executed a mortgage on the premises in question to Kelts & Co., who, in consideration thereof, extended the time of payment of their account against Keech. On an application for the distribution of the surplus moneys arising upon the sale of the premises under a prior mortgage, held, that the mortgage of Kelts & Co. should be paid in preference to the judgment. APPEAL from an order of the Special Term, sustaining the exceptions of the respondent, Bispham, to the report of a referee, appointed in an application for the distribution of the surplus noneys arising on a sale upon the foreclosure of a mortgage. Alex. Ostrander, for the appellants. Benj. T. Kissam, for the respondent. FIRST DEPARtment, DecemBER TERM, 1874. Opinion by BARRETT, J. DAVIS, P. J., and DANIELS, J., concurred. Order reversed, with costs and disbursements; exceptions to the referee's report overruled, and motion to confirm report granted, with ten dollars costs. THE PEOPLE EX REL. J. B. ALEXANDER v. ELIZA H. Contempt-reference to take testimony as to - when may be ordered. Where proceedings are instituted under the statute in relation to criminal con- Put v. APPEAL, by Maria L. Newton, from an order made at Special Term, referring this matter to a referee, to take the evidence produced by the respective parties, upon the question whether Mrs. Newton had or had not been guilty of contempt, in aiding and abetting the violation of certain orders of this court, in relation to the custody of the children of the relator. Wheeler H. Peckham, for the appellant. for the respondent. Opinion by LAWRence, J. DAVIS, P. J., and DANIELS, J., concurred. Order affirmed with costs and disbursements. *Watson v. Fitzsimmons, 5 Duer, 629. 3 211 57 185 FIRST DEPARTMENT, DECEMBER TERM, 1874. PATRICK BURNS, RESPONDENT, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, APPELLANT. Wells in the city of New York- repairs of — section 38, chapter 446, Laws of 1857. This action was brought to recover for services and materials furnished by the plaintiff in repairing wells and pumps in the city of New York, in pursuance of the directions of the deputy street commissioner, between January 1 and April 9, 1870. Held (1), that the street commissioner had no authority to order the work to be done, the Croton aqueduct department having charge of all work relating to the repairs of wells and pumps; (2), that it nowhere appeared that the necessity of the work had been certified to by the head of the department, as required by section 38, chapter 446, Laws of 1857, and section 6 of the City Ordinances of 1866, page 93; (3), that the plaintiff was not entitled to recover. APPEAL from a judgment, in favor of the plaintiff, entered upon the report of a referee. E. Delafield Smith, for the appellant. Chas. H. Hatch, for the respondent. Opinion by DAVIS, P. J. DANIELS, J., concurred. Judgment reversed and new trial granted, costs to abide the event. IN THE MATTER OF THE PETITION OF JOHN D. VOORHIS TO VACATE AN ASSESSMENT. Assessment in City of New York when set aside-fraud - how must be shown. Upon the application of the petitioner, an order was made at the Special Term vacating an assessment in the city of New York, on the ground that two lots liable to assessment had been excluded therefrom, and that such exclusion constituted "a fraud in law." On appeal from this order held (1), that fraud in fact must be shown before an assessment could be set aside on that ground;* (2), that in the present case there was no direct proof of fraud, nor did the facts proved justify any such legal inference. |