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 . CITY OF WATERTOWN..
STRIKES - By-laws of society compelling member to join in, void as against public policy.
See PEOPLE v. N. Y. BENEVOLENT SOCIETY OF MASONS.. SUFFRAGE - Right of, not conferred by Constitution, but recognized by it as an existing right-power of legislature over the subject.
SUMMARY PROCEEDINGS — Certiorari to review — 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 v. 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 . CHURCH
Service of, by publication — what affidavit must show to obtain order for. See BIXBY 0. SMITH
SUPREME COURT- Power 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.
2. Chap. 299, 1872, and chap. 545, 1874, providing 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 claim 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
SURPLUS MONEYS-Continued.
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 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"-priority 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 v. DURYEA..
Distribution of - Mechanics' lien — Junior mortgagees — rights of. See OPPENHEIMER v. WALKER..
Referee's report as to-power of court over. See MUTUAL LIFE INS. Co. v. SALEM
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 . SMITH
2. Power of, to hear and determine claims of executors.] The statute (3 R. S. [5th ed.], 175, § 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.
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 . RICHARDS....
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.
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......
SURROGATE-Continued.
Decree of -presumed to be correct.
See ROLLWAGEN v. ROLLWAGEN
Claim of executor against estate power of surrogate to determine as to validity of.
When summoning of, unauthorized-2 R. S., chap. 7, art. 4, § 54 — chap. 210, 1861 — chap. 409, 1870 — chap. 16, 1871. See SHIELDS v. NIAGARA CO. SAVINGS BANK.
TAXES — Board of supervisors — liability of, for tax illegally collected · -State 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.
MERCHANTS' 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.) Id.
Certiorari to review proceedings in levying tax See PEOPLE v. VILLAGE OF PALMYRA..
- when prematurely issued.
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.
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 v. SCHOENFELDT.......
Oyer and Terminer - absence of one of the justices during portion of trial-effect of.
TRUST-When created by taking absolute conveyance at request and for benefit of another-parol evidence qualifying absolute conveyance—ichen 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
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 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
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.
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.
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
-Usurious contract made by National Bank-right of borrower to recover twice the amount of interest paid under- Act of Congress, 1864, chap. 106, § 30- when has no application.
See HINTERMISTER 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.
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 -
against party claiming property.
Statements of vendor-when inadmissible
VENDOR AND VENDEE - Continued.
When declarations of former owner of personal property inadmissible to show title in vendee.
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.
VESSEL-Canal boat is, within meaning of chapter 482 of 1862.
VILLAGES — Incorporation of — when proceedings for, not enjoined.] Courts will not enjoin parties from taking proceedings, authorized by law, to 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 . MINNERLY
VOUCHER - On accounting by guardian, required for payments exceeding twenty dollars.
WAIVER-Motion for extra allowance — when right to make has been waived. See COMMISSIONERS OF PILOTS v. SPOFFORD..
Clause in contract of sale providing against assignment — waived by vend- or's acceptance of purchase-money from assignee.
See OLCOTT v. 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 v. OLMSTEAD...
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 v. AYRAULT.
Obstruction of, by bridge - Ownership of land when recitals and cove- nants in lease are sufficient 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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