FIRST DEPARTMENT, DECEMBER TERM, 1874. APPEAL from an order made at the Special Term vacating an assessment for paving Fifty-eighth street from Sixth to Ninth avenues. William Barnes, for the appellant. John S. Lawrence, for the respondent. Opinion by BARRETT, J. DAVIS, P. J., and DANIELS, J., concurred. Order reversed with ten dollars costs and disbursements, and motion to vacate assessment denied, with ten dollars costs. CHARLES MCGUIRE, PLAINTIFF IN ERROR, v. THE PEOPLE, DEFENDANTS IN ERROR. Rape-statement of person arrested with accused — when admissible against. The plaintiff in error was convicted of rape upon an indictment found against him and one Campbell. Upon the trial a witness was asked what Campbell said in the police court when the charge was made by the complainant. Held, that the question was a proper one. * WRIT of error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of rape. William F. Howe, for the plaintiff in error. Benj. K. Phelps, for the defendants in error. Opinion by BARRETT, J. DAVIS, P. J., and DANIELS, J., concurred. Conviction and judgment affirmed. *Kelly v. The People, 55 N. Y., 565. FIRST DEPARTMENT, DECEMBER TERM, 1874. THE PEOPLE EX REL. JAMES KEDIAN AND ANOTHER, RESPONDENTS, v. WILLIAM H. NEILSON, PRESIDENT OF THE BOARD OF EDUCATION, AND OTHERS, APPELLANTS. Trustees of the college of New York-- bills incurred by — audit of. The charter of the city of New York confers no authority upon the auditor cf the said city to audit, or upon the comptroller to draw warrants for the payment of, bills for work performed in pursuance of the directions of the board of education, acting as trustees of the college of the city of New York. APPEAL from an order, made at the Special Term, directing a mandamus to issue against the appellants. E. Delafield Smith, for the appellants. James W. Gerard, for the respondents. DAVIS, P. J., concurred; DANIELS, J., concurred in the result. Order affirmed as to the appellant, Neilson, and reversed as to Earle and Green, without costs, with leave to respondents to apply for a mandamus against the clerk of the board of education to compel him to sign the draft of the president of the board. JOHN ROMAIN, AS CONTINUING PARTNER, ETC., APPELLANT, v. DAVID J. GARTH, EXECUTOR, ETC., AND RESPONDENTS. OTHERS, Judgment recovered by firm — release of, entered by one partner in clerk's office — cancellation of Complaint-amendments to. This action was commenced by the plaintiff upon a judgment recovered by his firm, prior to its dissolution, against a firm of which Odell, the defendant's testator, was a member. After the commencement of the action, the plaintiff discovered that one Schanck, a former partner of his, had given a release from the judgment to Odell, which had been delivered to the county clerk, who had marked the judgment released as to him. The plaintiff then moved to have the entry in the clerk's office canceled, and for leave to amend his complaint by alleging that the release was given fraudulently and without authority, and by collusion between Odell and Schanck, and praying that the same might FIRST DEPARTMENT, DECEMBER TERM, 1874. be declared null and void, both of which motions were denied. Held (1), that the order denying the motion to cancel the entry in the clerk's office was correct; (2), that the plaintiff should be allowed to amend his complaint upon payment of all the costs of the action up to the time of this appeal. APPEAL from an order made at the Special Term, denying a motion to cancel an entry that the judgment upon which this action is brought had been released, such entry having been made by the clerk of the county of New York on the docket of the judgment. And also an appeal from an order made at the Special Term denying a motion for leave to amend the complaint. A. C. Merritt, for the appellant. Sacketts & Lang, for the respondents. Opinion by LAWRENCE, J. DAVIS, P. J., and DANIELS, J., concurred. Order denying motion to cancel entry affirmed, with costs. Order denying motion to amend reversed, without costs, and leave granted to amend the complaint upon payment of all costs and disbursements up to the time of this appeal, together with the costs of the motion. IN THE MATTER OF THE PETITION OF HELEN E. LITTLE TO VACATE AN ASSESSMENT FOR PAVING TWENTY-FIRST STREET, BETWEEN FOURTH AND FIFTH AVENUES, IN THE CITY OF NEW YORK. Assessment - motion to vacate must be made by owner - what proof not sufficient to Upon this application to vacate an assessment, the only proof as to the ownership of lots assessed was the following statement contained in the affidavit of the petitioner: That," at the time of the confirmation of the above named assessment, on the 3d of May, 1870, she was and still is held liable for the payment of the assessment imposed on lot mentioned and described in said petition by ward number 5,402." Held, that this proof was inadequate to show any right, on the part of the petitioner, to institute the proceedings to vacate the assessment. Matter of Phillips (9 N. Y. S. C. Rep. [2 Hun], 212) followed. FIRST DEPARTMENT, DECEMBER TERM, 1874. APPEAL from an order made at the Special Term vacating an assessment. William Barnes, for the appellant. Neville & Andrews, for the respondent. Opinions by DAVIS, P. J., and LAWRENCE, J. DANIELS, J., concurred with DAVIS, P. J. LAWRENCE, J., dissented. Order reversed, with ten dollars costs and disbursements, and petition denied, with ten dollars costs. FREDERICK HUMPHREYS, RESPONDENT, v. FRANCIS W. HURTT, APPELLANT. Contract- forfeiture for breach of — when injunction granted to prevent enforce ment of. This action was brought to procure the correction of an alleged mistake in an agreement, entered into between the parties to this action, which contained a severe forfeiture in case of a default. Upon the application of the plaintiff an order was made permitting him, during the pendency of this action, to pay into court all sums of money coming due under the agreement, and restraining the defendant from bringing suit upon such contract or from taking any steps to enforce any forfeiture occasioned by the failure of the plaintiff to comply with the terms of the agreement. Held, that the order was proper. APPEAL from an order made at the Special Term continuing an injunction. Coles Morris and Michael H. Cardozo, for the appellant. Ira Shafer and William Sutphen, for the respondent. Opinion by DAVIS, P. J. DANIELS, J., concurred. Order affirmed, with ten dollars costs besides disbursements. FIRST DEPARTMENT, DECEMBER TERM, 1874. DANIEL TOFFEY AND OTHERS, RESPONDENTS, v. STEPHEN T. WILLIAMS, APPELLANT. Order of arrest—when granted. Where two separate causes of action are joined in a complaint, an order of arrest will not lie unless there be a right of arrest upon the entire claim of the complaint. An order of arrest should not be granted in an action brought to recover a balance upon a running account, made up in great part of items entirely untainted with fraud. APPEAL from an order made at the Special Term, denying a motion made by the defendant to vacate an order of arrest. Shaw & Jeroloman, for the appellant. Abraham E. Merritt, for the respondents. Opinion by BARRETT, J. DAVIS, P. J., and DANIELS, J., concurred. Order reversed with ten dollars costs and disbursements, and order of arrest vacated with ten dollars costs. STEPHEN R. LESHER AND OTHERS, RESPONDENTS, v. EGIDUS ROESSNER, APPELLANT. Judgment for costs-lien of attorney upon. Where a defendant recovers a judgment for the costs of the action, his attorney has a lien thereon to the amount of the recovery, and the record of the judgment is notice to all the parties to the action of the existence of such lien. McGregor v. Comstock (28 N. Y., 237) followed. *Bowen v. True, 53 N. Y., 640; McGovern v. Payn, 32 Barb., 84. 28 |