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60

STREETS - Continued.

Occupied by railroad company-duty of city to keep in repair liability
of railroad company to city Sidewalks are comprehended in the term streets.
See WILSON 0. CITY OF WATERTOWN.

508
STRIKES — By-laws of society compelling member to join in, void as against
public policy.
See PEOPLE v. N. Y. BENEVOLENT SOCIETY OF Masons..

361
SUFFRAGE — Right of, not conferred by Constitution, but recognized by it as
an existing right poroer of legislature over the subject.
See PEOPLE 0. WILSON

437
SUMMARY PROCEEDINGS - Certiorari to revicro - what brought up by.]
1. A certiorari, to review summary proceedings, had before a justice of the
peace to remove a tenant, brings up any question of law arising either in the
proceeding or upon the trial, and enough of the evidence to enable the court
to determine whether the relation of landlord and tenant existed between the
parties. PEOPLE 0. LOCKWOOD..

304
2. Defense Evidence.] Upon the trial before the justice, evidence was
given in behalf of the plaintiff

, tending to show that the relator entered into
possession of the premises by the permission of the plaintiff, and upon the
agreement that she would go out when requested. This was denied by the
relator, who claimed to have entered in the right of her children, as the heirs
of her deceased husband; upon the trial she offered to prove that the plaintiff
gave her the premises in consideration of services rendered by her to him,
which evidence was excluded. Held, that its exclusion was error. Id.
SUMMONS When service of, on husband for wife in foreclosure is sufficient.
See WATSON 0. CHURCH

80
Service of, by publication what affidavit must show to obtain order for.

See BixBY v. SMITH
SUPREME COURT Poroer of legislature to abridge jurisdiction of.] 1. The
Constitution of this State, article 6, section 6, confers upon the Supreme
Court general jurisdiction in law and equity, and the legislature has no power
to abridge or limit such jurisdiction, either with or without the consent of
that court.
DE HART v. HATCH ......

375
2. Chap. 299, 1872, and chup. 545, 1874, prociding for transfer of actions
to Marine Court, are unconstitutional.] Chapter 299 of the Laws of 1872, and
chapter 545 of the Laws of 1874, providing that any of the courts therein
named, may, by an order to be entered on its minutes after the joining of
issue, transfer actions pending therein, of the classes therein specified, to the
Marine Court for trial, are unconstitutional and void. Either party to an
action in the Supreme Court, is entitled to have the case tried in and deter-
mined by that court, and such right cannot be taken away either by the
legislature or the court, without his consent. Id.

3. — Order transferring action, appealable.] An order directing the trans-
fer of an action in pursuance of these acts, is appealable (1), as affecting a
substantial right, and (2), as involving the constitutional validity of the legis-
lative provisions under which it was made. Id.
SURPLUS MONEYS - Rule 77 what claims constitute liens under Lien
of attorney - Power of court to direct payment of attorney's cluim out of moneys
controlled by it.] 1. 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 judg-
ment. 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

PAGE.

SURPLUS MONEYS- Continued.
to his appearance, but opposed the allowance of the amount claimed hy 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 con-
sent, 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.
ATLANTIC SAVINGS BANK v. HILER...

209
2. Judgment "secured on appeal" primity of subsequent mortgage.]
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 ordered 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.
UNION DIME SAVINGS INSTITUTION 0. DURYEA...

210
Distribution of Mechanics' lien -Junior mortgagees rights of.

See OPPENHEIMER 0. WALKER.....
Referee's report as to— power of court over.
See MUTUAL LIFE INS. Co. 0. SALEM ..

117

30

SURROGATE - When district attorney authorized to act as.] 1. When the
county judge and surrogate are interested and cannot act as surrogate, and
the special county judge is unable to give the bonds required by chapter 213,
Laws of 1858, the district attorney of the county is authorized by chapter
859, Laws of 1871, to act as surrogate. The words “when there is no legal
officer authorized to perform,” contained in section 8 of that act, are to be
construed as though they read, “when there is no officer legally authorized
to perform.” HOLMES 0. SMITH

413
2. Power of, to hear and determine claims of executors.] The statute (3
R. S. [5th ed.], 175, S 37), imposes no limitations on the power of the surro-
gate to hear and determine claims by executors against the estates of their
testators. It matters not whether such claims are contested or not.
KYLE 0. KYLE...

..... 458
3. Decree of, made on final settlement what only determined by.] A
decree made by the surrogate on the final settlement of an executor's accounts,
determines nothing beyond the amount received and paid out by him, and
(unless the two amounts balance each other), the balance in his hands belong-
ing to the estate, or due to him from it. JOHNSON 0. RICHARDS..

454
4. Decree of distribution when action will lie upon.] Upon a decree
directing distribution, made in conformity to the statute, an action will
lie by each creditor or legatee, to recover the sum adjudged to him by
such decree. Id.

5. - A decree that a defendant pay a sum of money, without specifying
the amount or providing any legal mode for ascertaining it, is a nullity. Id.

Decree of what considered on appeal from.
See GILMAN v. GILMAN..

22
HUN-Vol. III. 107

PAGE.

SURROGATE -Continued.

Decree of presumed to be correct.
See ROLLWAGEN 0. ROLLWAGEN

121
Claim of executor against estate power of surrogate to determine as to
validity of
See SMITH 0. CHRISTOPHER

585
TALESMEN – When summoning of, unauthorized - 2 R. S., chap. 7, art. 4,
8 54– chap. 210, 1861 chap. 409, 1870 - chap. 16, 1871.
See SHIELDS 0. NIAGARA Co. Savings Bank.

477
TAXES Board of supervisors liability of, for lax illegally collected Stute
tax - board of supervisors do not act as representatives of State in collecting.]
1. The predecessor of the plaintiff was compelled to pay $29,502.14, the tax
imposed for the year 1862, upon $1,701,000 of its capital, which was then
invested in United States securities. Of this amount $15,221.38 were for the
purposes of the city of New York, $7,492.71 for the county, and $6,788.05
for the State tax. The imposition of the tax having been declared illegal,
this action was brought to recover the amount so paid. Held (1), that the
plaintiff was entitled to recover the amount of the county and State tax ;
the State tax is a debt imposed upon the county at large, and the board of
supervisors do not act as the representatives of the State in collecting it;
(2), that the plaintiff was not entitled to recover the amount of the tax paid
for the purposes of the city, for the reasons that the county had never re-
ceived such amount, and that it has never been authorized to raise and pay
the same to the plaintiff.
MERCIANTS' NAT. Bank v. BOARD OF SUPERVISORS..

156
2. Chap. 108, 1863 — construction of.] Chapter 108, Laws of 1863,
authorized the board of supervisors to raise such additional amount of money
as might be necessary to supply any deficiency in the product of the taxes of
the year before, as such taxes were based upon erroneous assessments; but it
did not authorize them to raise money to reimburse what might thereafter be
collected from the city on account of the tax being erroneous, nor to enable
the county to pay claimants what they otherwise might recover from the
city. (BRADY, J., dissenting.)

Id.
Certiorari to review proceedings in levying tax when prematurely issued.
See PEOPLE 0. VILLAGE OF PALMYRA.

549
TRADE MARK — Infringement.] Plaintiff sold a cosmetic as “Gouraud's
Oriental Cream or Magical Beautifier.” Defendants, his sons, advertised
and sold the same preparation as “Creme Orientale, by Dr. T. F. Gouraud's
Sons.” Held, that it was an infringement of the plaintiff's trade mark.
GOURAUD v. TRUST..

627
TRESPASSER- On railroad cars -rights of liability of railroad company
for injuries sustained by, through willful and malicious acts of employe.
See Rounds v. DEL., LACK. AND WEST. R. R. Co....

329
TRIAL — Jury right of court to aid of.] The court may, in the trial of an
action before it, in every case embraced in section 254 of the Code, have the
aid of a jury, and submit to its determination as many or as few questions
of fact, presented by the pleadings, as it may deem expedient.
ZIMMERMAN 0. SCHOENFELDT.

692
Oyer and Terminer -absence of one of the justices during portion of
trial - effect of
See SHAW 1. PEOPLE..

272
TRUST When created by taking absolute conveyance at request and for benefit
of another - parol evidence qualifying absolute conveyance -- when admissible. ] 1.
When a person takes an absolute conveyance of real property at the request
and for the benefit of another, who at the time has an interest therein to be
protected, he will be deemed the trustee of the party for whom he undertook
the purchase; and on tender to him of the purchase-money and interest, he
will be compelled to convey the property to the one equitably entitled to it.
Equity will not allow a party to retain property thus obtained upon the faith

PAGE.

TRUST — Continued.
of a verbal contract, and the arrangement made between the parties may be
shown by parol evidence. CHURCH v. Kidd...

254
2. Statement of account between trustee and third party when not binding
on cestui que trust.] A statement of account made between trustees and third
persons interested in the trust property, in which there is an agreement to
pay interest upon a sum (made up of a principal sum and interest and a
bonus thereon, the latter not yet being legally due, though in such account
stated to be) found to be due such third persons, there being no authority in the
trustees from their cestui que trust to make such agreement, is not binding on
the cestui que trust, although for several years after he obtains knowledge of
such account stated, he gives no notice to such third persons of his dissent
therefrom. Id.

3. Sale of land neither for creditors, legatees nor incumbrancers - trust
cannot be created for.] When the primary, main object of a trust deed
is to have the lands therein described sold (not for the benefit of credi-
tors or legatees, or to discharge incumbrances thereon), and the proceeds
paid over by the grantee named in the deed, no valid trust is created, and no
title to the lands passes by the deed, although, until such sale, the grantee is
required to collect and pay over the rents and profits.
HEERMANS v. ROBERTSON

464
4. When authority to rent lands does not invalidate trust for sale of them.]
Whenever the principal object of a trust is to sell lands and pay over the
avails, the authority to rent them in the mean time, does not take the case
out of the statute. Id.

5. Deed conveying personal property in trust when revocable as a power
of attorney.) A deed conveying all the real and personal property of the
grantor, with directions to the grantee therein named to sell the lands and
collect the debts due to the grantor, and to pay over the proceeds under the
instructions of the grantor, so far as they relate to the personal property,
has no other effect than a simple power of attorney, and may be revoked at
the pleasure of the grantor. HEERMANS v. ELLSWORTH

473
6. When not created.] A declaration that the title to property is held
in trust to secure costs, counsel fees and advances, made and incurred in suits
concerning the premises, does not create a trust authorised by statute.
KNICKERBOCKER LIFE INs. Co, v. HILL ...

577
TRUSTEE — Account stated between him and third person when cestui que
trust not bound by.
See CHURCH 0. KIDD

254
UNDUE INFLUENCE — When presumed.
See ROLLWAGEN 0. ROLLWAGEN.

121
USURY-Usurious lien -- purchaser under execution may attack.) A purchaser
of property under an execution, may attack a previous usurious lien thereon.
KNICKERBOCKER LIFE INS. Co. v. HILL.

577
NICHOLS 0. IREMONGER

609
- Usurious contract made by National Bank - right of borrower to recover
twice the amount of interest paid under Act of Congress, 1864, chap. 106, S 30 –
when has no application.
Sue HIINTERMISTER v. FIRST NATIONAL BANK

345
Defense that note was drawn for too much by mistake, or, if not, that it
was usurious usury cannot be founded on mistake.
See Lush 0. CAMPBELL

607

VARIANCE — When properly disregarded, where complaint charges obstruction
of water-course, and proof shows only continuance of same.

See CONHOCTON STONE ROAD Co. v. BUFFALO, N. Y. & ERIE R. R.Co., 523
VENDOR AND VENDEE Statements of vendor - when inadmissible
against party claiming property.
See MILLINER v. LUCAS.

496

1

PAGE

431

VENDOR AND VENDEE Continued.

When declarations of former owner of personal property inadmissible to
how title in vendee.
See LADUE 0. WARNER.

547
VENUE – What must be shown to entitle prisoner to change of, on account of
popular passion and prejudice.] When an accused person applies to change the
place of trial, he must make a clear case, that, by reason of popular passion
or prejudice, he cannot have a.fair and impartial trial in the county where
the venue is laid.

Affidavits stating the belief of persons that a fair trial cannot be obtained,
are not sufficient. Facts and circumstances must be stated.
PEOPLE v. SAMMIS

560
VESSEL - Canal boat is, within meaning of chapter 482 of 1862.
See EMMONS 0. WHEELER

.... 545
VILLAGES — Incorporation of when proceedings for, not enjoined.] Courts
will not enjoin parties from taking proceedings, authorized by law, in incor-
porate a village, because the parties applying for the injunction will be sub-
jected to burdens of local government, disproportionate to the benefits accruing
to them therefrom. STEPHENS 0. MINNERLY

566
VOUCHER – On accounting by guardian, required for payments exceeding
twenty dollars.
See MATTER OF GILL

20
WAIVER - Motion for extra allowance when right to make has been waived.
See COMMISSIONERS OF PILOTS o. SPOFFORD....

57
Clause in contract of sale providing against assignment waived by vend-
or's acceptance of purchase-money from assignee.

See OLCOTT 0. HEERMANS.
WAREHOUSE RECEIPT Difference between delivery of receipt and an
order for it Estoppel.] A party, who advances money upon presentation
to him of a warehouseman's receipt, stands in the position of a bona fide pur-
chaser for value of the property therein described; while one, who in good
faith advances money upon an order for such receipt, under an executory
arrangement of which the delivery of the receipt was to be the consummation
and consideration, does not occupy the same position.

If in the latter case the receipt is delivered upon presentation of the order,
and no notice of the repudiation of the receipt is given until after the time
has elapsed within which, had such receipt not been delivered, the money
advanced upon the order might have been recovered back, such delay will
operate as an estoppel, and preclude the party seeking to set aside the receipt
from doing so.
VOORHEES 0. OLMSTEAD....

744
WATER-COURSE - Diversion of -- right to drain off surface-water.] 1. This
action was brought to restrain defendant from unlawfully diverting the
water from a ditch, called the Cove ditch, running through the lands of the
parties to this action; the plaintiff having acquired a right to have the said
ditch kept open, and to have the water continue to flow therein. Prior to the
commencement of this action, the defendant had dug a ditch upon his own land,
which prevented the surface-water thereon from running into the Cove ditch,
as it had been accustomed to do. Held, that, if the defendant had dug the
ditch simply to relieve his land from the water which accumulated thereon and
was left there to its injury, in consequence of the neglect of the plaintiff and
others to keep the Cove ditch in proper repair, he could not be held to have
wrongfully diverted the water from the said Cove ditch.
CURTISS 0. AYRAULT,

487
2. Obstruction of, by bridge Oronership of land when recitals and cove-
nants in lease are sufficiont evidence of:] This action was brought to recover dam-
ages, sustained by the plaintiff, from injuries to its road-bed, caused by the
water of a stream which was obstructed and thrown back at the time of a
freshet, by a bridge and embankment upon the road of the defendant. Upon
the trial plaintiff introduced in evidence a lease of the defendant's road from

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