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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.
STRIKES — By-laws of society compelling member to join in, void as against
See PEOPLE v. N. Y. BENEVOLENT SOCIETY OF Masons..
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
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..
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
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
DE HART v. HATCH ......
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...
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
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...
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 ..
Decree of — presumed to be correct.
See ROLLWAGEN 0. ROLLWAGEN
Claim of executor against estate — power of surrogate to determine as to
See SMITH 0. CHRISTOPHER
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.
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..
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.)
Certiorari to review proceedings in levying tax — when prematurely issued.
See PEOPLE 0. VILLAGE OF PALMYRA.
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..
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....
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.
Oyer and Terminer -absence of one of the justices during portion of
trial - effect of
See SHAW 1. PEOPLE..
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
TRUST — Continued.
of a verbal contract, and the arrangement made between the parties may be
shown by parol evidence. CHURCH v. Kidd...
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
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
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
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 ...
TRUSTEE — Account stated between him and third person — when cestui que
trust not bound by.
See CHURCH 0. KIDD
UNDUE INFLUENCE — When presumed.
See ROLLWAGEN 0. ROLLWAGEN.
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.
NICHOLS 0. IREMONGER
- 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
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
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.
VENDOR AND VENDEE Continued.
When declarations of former owner of personal property inadmissible to
how title in vendee.
See LADUE 0. WARNER.
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
VESSEL - Canal boat is, within meaning of chapter 482 of 1862.
See EMMONS 0. WHEELER
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
VOUCHER – On accounting by guardian, required for payments exceeding
See MATTER OF GILL
WAIVER - Motion for extra allowance — when right to make has been waived.
See COMMISSIONERS OF PILOTS o. SPOFFORD....
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.