the State during business hours has never yet been held to constitute residence. On the contrary, in the enforcement of our attachment laws against non-residents it has repeatedly been held that presence during business hours in this State does not amount to residence. 68 N. Y., 370; 1 Bosw., 673; 6 Abb., 374. In the absence, therefore, of a statutory provision making presence during business hours in this State equivalent to residence, in the construction of § 3278, the order appealed from was fully warranted by the facts shown to the Court below. It is no answer, under § 3278, that the appellant commenced the action in good faith and in the belief that the plaintiff and his family were domiciled in New York; nor does the omission of the defendant to demand security for costs during the pendency of the action affect the attorney's liability. 10 Daly, 391. Order affirmed, with costs. Opinion by Freedman, J.; Sedgwick, Ch. J., and Van Vorst, J., concur. COSTS. TRIAL FEE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Appeal from an order of the Special Term, denying motion for retaxation of costs. This case was at issue and on the calendar, and when reached was at plaintiff's request set down for a certain day for trial. On that day, just as the case was moved for trial, the court, at plaintiff's request, made an order discontinuing the action upon payment by plaintiff to defendants of their costs of the action to be taxed by the clerk of Westchester county. The clerk allowed defendant a trial fee. G. W. Stephens, for applt. Held, Error; there can be no trial fee allowed in these cases. 2 Hun, 443; 10 id., 120. That the dicta in some of the old cases, to the effect that if a party is all ready to try a cause and is prevented by a settlement or a similar act he must have a trial fee for his labor in getting ready, must be deemed to be overruled by 2 Hun, 443. The plain answer to them is that the law only allows the fee for the trial, the labor of preparing for it being provided for in the other item of $15. If the plaintiff does not avail himself of the orders at Circuit the cases remain in the condition they were when the order was made. Edgar Studwell, applt., v. John 15 Hun, 440. Baxter, comr., respt. Decided Sept., 1884. Where a case is discontinued on payment of costs after it has been moved for trial but before the trial has actually commenced the defendant is not entitled to a trial fee. Orders reversed, with costs and disbursements. Opinion by Pratt, J.; Barnard, P. J., and Dykman, J., concur. LIMITATIONS. The complaint was dismissed on the ground that the action not N. Y. SUPERIOR COURT. GENERAL having been brought within six TERM. years after the cause thereof ac Charles Engel, applt., v. J. S. crued, was barred by the statute Fischer, respt. of limitations. B. Lewinson, for applt. W. & S. W. Fullerton, for respt. Held, Error. The statute of limitation is a shield and not a weapon of offense. If defendant be shielded by the strict letter of the statute he is not by its true spirit and intent. The word "return" in § 401, Code Civ. Pro., applies as well to a person coming from abroad, where he has resided, as to a citizen going abroad for a time and then returning. 10 John., 464. But the return must be so public and under such circumstances as to give the creditors an opportunity, by the use of ordinary diligence and due means, to prosecute the debtor. 10 N. Y., 96; 4 Den., 577; 2 Sand., 518; 3 Mass., 201; 33 ib., 359. See 77 Appealed from judgment dis- N. Y., 207. missing complaint. Defendant, residing in Austria, in May, 1873, accepted a draft which was the subject of this action. In July, 1873, he absconded| therefrom and came to New York City, and for the purpose of concealing himself from his creditors took an assumed name, and he has ever since borne and been hiding under said fictitious name. The draft matured after defendant took up his residence here. In April, 1882, plaintiff discovered defend ant and demanded payment of the draft, which being refused, he brought this action. Judgment reversed and new trial ordered, costs to abide the event. Opinion by Van Vorst, J.; Freedman, J., concurs. NEGLIGENCE. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Catherine Lockwood, admrx., respt., v. The New York, Lake Erie & Western R. Co., applt. Decided Dec., 1884. In an action to recover damages for the pecuniary loss to the next of kin of a per son whose death has been caused by the negligence of a party, it is proper to show the number, age, sex and condition of health of the children of deceased; and while it is true that the statute only provides for pecuniary loss to the next of kin, and that such loss is independent of the fact of the sickness or health of the next of kin, yet the evidence is admissible to show the condition of the family of the deceased as a basis for the jury. dition in life. The fact that some Opinion by Barnard, P. J.; Appeal from a judgment in favor not sitting. of plaintiff for $3,000. The action was to recover damages for causing the death of Hanford A. Lockwood. Evidence was admitted under defendant's objection that the daughter of plaintiff's intestate was sick and unable to work at Lewis E. Carr, for applt. Held, No error; that it is true that the statute only provides for pecuniary loss to the next of kin, and that such loss is independent of the fact of the sickness or health of the next of kin. This evidence is admissible to show the condition of the family of the deceased as a basis for the jury. The pecuniary loss does not depend upon the number of children or on the fact that there were only collateral kindred of the deceased, yet these facts are constantly proven in these cases. The age, sex, and condition of health of the children are proper facts to be known by a jury. So also it is proper to show the condition of the family pecuniarily. The pecuniary loss to the next of kin may be very much affected by this fact. The jury were entitled to know the family and their con FORECLOSURE. PARTY. CORPORATION. N.Y. SUPREME COURT. GENERAL Warren B. Smith et al.. v. The Smith Moquette Loom Co. Charles Decided Dec., 1884. A stockholder is not a necessary party to an Appeal from order denying ap- T. & S. H. Fitch, for respts. George C. Furman, for applt. Held, That the order made at Special Term was right. In July, 1883, the Smith Moquette Loom Company of Yonkers executed a mortgage to the plaintiffs. The company failed to pay and plaintiffs brought these actions to foreclose the mortgage. The parties were the mortgagees and mortgagors and Alexander Smith & Son's Carpet Company, a private partnership which had taken a lease of the mortgaged premises subsequent to the mortgage. These were all the necessary parties to a foreclosure action. 75 N. Y., 127. The mortgage was given with the assent of over two-thirds of the stockholders of the company giving the mortgage, as required by statute. It appears that plaintiffs, however, were trustees of the mortgagor and probably were a part or all of the assenting stockholders who made up the twothirds. While as such trustees they held a fiduciary relation which rendered improper dealings in their own behalf in respect to matters involving the trust, yet if the debt was fair and honest the discharge of the debt must precede an avoidance of the transaction. 84 N. Y., 190; 88 id., 1; 91 id., 650. The applicant to be made a party defendant was a stockholder when the mortgage was given. His application is made under § 452 of the Code, and if he is included in the class of persons who are to be made parties he must show a defense. Upon this point he fails. He makes an affidavit that the mortgage is fictitious, illegal and void. He gives no facts showing why. Plaintiffs establish in answer to this general allegation that the mortgage was given "for money loaned by these plaintiffs to said company and by it used in the construction of its factory building and pur chase of machinery and fixtures used in its manufacturing business. "That it was given for full and valid consideration and is not fictitious, illegal and void." While it is not proper to determine the merits upon an applica tion to be made a defendant, something is needed to make a defense. The mortgage is not illegal and void because of the manner of execution or of the parties to it if there was a debt, and that there was a full consideration is not put in issue by any allegation in the moving papers which either necessarily or inferentially charges it Assuming, therefore, that the applicant might be made a party defendant upon proper averments, he fails to make a case therefor. Order affirmed. Opinion by Barnard, P. J.; Pratt and Dykman, JJ., concur. CONTEMPT. PLEADING. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Lodoviska M. Brisbane, respt., v. Albert Brisbane, applt. Decided Dec., 1884. Power to strike out a defense in actions in equity for refusal to obey orders of the Court existed in the Court of Chancery and now exists. Section 1773 of the Code does not purport to take it away, but only to provide a way by which a disobedient party may be fined or imprisoned for a contempt for refusing to obey orders for the payment of alimony. Appeal from two orders, one striking out the amended answer of defendant unless within five days after service of a copy of said order on defendant's attorney defendant pay the sum of $1,625 accrued alimony and counsel fee; the second order absolutely striking out the amended answer by reason of the non-payment of such | FORECLOSURE. SALE. PUBmoney. The action is for an abso lute divorce. LIC ADMINISTRATOR. Francis H. Van Vechten, for N. Y. SUPREME COURT. GENERAL applt. Brewster Kissam, for respt. Held, That the Court had power to strike out defendant's answer; that the power to strike out a defense in actions in equity for refusal to obey orders of the Court existed in the Court of Chancery and now exists, 82 N. Y., 260, unless § 1773 of the Code has taken it away. That section does not purport to take it away, but only to provide a way by which a disobedient party may be fined or imprisoned for a contempt for refusing to obey orders for the payment of alimony. The real change intended seems to have been that before punishment by fine or imprisonment could be inflicted proof should be given that the amount required by the order could not be realized from sequestration or by a receiver of the property of the party. There does not appear to have been any design to destroy the old principle that Courts of Equity could and would lawfully refuse to hear a person who was in contempt for a violation of an order of the Court. One who asks equity must do equity. No right is taken away which may not at once be regained by the application of defendant to the Court for leave to pay the amount ordered to be paid and thereupon to answer and contest upon the merits. Order affirmed. Opinion by Barnard, P. J.; Pratt and Dykman, JJ., concur. TERM. SECOND DEPT. George B. Abbott, pub. admr., respt., v. J. S. Curran. S. V. Lowell, purchaser, applt. Decided Sept., 1884. An objection that the property sold on foreclosure was not sufficiently described in the mortgage or foreclosure proceedings is sufficiently met by an affidavit of a surveyor that there is no difficulty in identifying the property in question from the description given in the judgment. An objection that the bond and mortgage were not produced before the referee is sufficiently met by proof that the same had been duly executed and delivered, that no part of the debt had been paid, and by proof of the loss of the original papers, in the absence of any evidence to the contrary. An objection that the sale was not made by the sheriff cannot obtain where the sale was regular in all other respects, and a sale made by a referee appointed on the written consent of all the parties who have appeared, presents no irregularity. The fact that the notice of the sale was published sometimes ouly in the second edition of a newspaper affords no objection to the title. The words in the grant, by the State, of the lands in suit, "for commercial purposes only," are too vague on which to base an objection. Letters duly granted to the plantiff are conclusive evidence of his title to a mortgage belonging to the intestate, and of his authority to sue. Appeal from two orders of the Special Term, one directing the appellant to complete his purchase, and the second denying his motion for a rehearing on further objections to title not urged on the first motion. |