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son whose death has been caused by the dition in life. The fact that some
negligence of a party, it is proper to show of the children were away from
the number, age, sex and condition of
health of the children of deceased ; and

home did not destroy the action.
while it is true that the statute only pro- | If they had all been earning their
vides for pecuniary loss to the next of kin, own living away from home the
and that such loss is independent of the action would exist. 37 N. Y., 287.
fact of the sickness or health of the next of
kin, yet the evidence is admissible to show

Judgment affirmed. the condition of the family of the deceased Opinion by Barnard, P. J.; as a basis for the jury.

Pratt, J., concurs ; Dykman, J., Appeal from a judgment in favor not sitting. of plaintiff for $3,000.

FORECLOSURE. PARTY The action was to recover dam

CORPORATION. ages for causing the death of Hanford A. Lockwood.

N.Y. SUPREME COURT. GENERAL Evidence was admitted under TERM. SECOND DEPT. defendant's objection that the

Warren B. Smith et al., v. The
daughter of plaintiff's intestate Smith Moquette Loom Co. Charles
was sick and unable to work at E. Skinner, applt.
severe or "continuous" labor.

Decided Dec., 1884.
Lewis E. Carr, for applt.
Allison & O'Neil, for respt.

A stockholder is not a necessary party to an

action for the foreclosure of a mortgage Held, No error ; that it is true against the property of the corporation ; that the statute only provides for

and if he is included in the class of persons pecuniary loss to the next of kin,

who are to be made parties under $ 452 of

the Code, he must show a defense. and that such loss is independent of the fact of the sickness or health Appeal from order denying apof the next of kin. This evidence plication of Charles E Skinner to is admissible to show the condition be made a party defendant. The of the family of the deceased as a facts sufficiently appear in the basis for the jury. The pecuniary opinion. loss does not depend upon the

T. & S. H. Fitch, for respts. number of children or on the fact George C. Furman, for applt. that there were only collateral Held, That the order made at kindred of the deceased, yet these Special Term was right. In July, facts are constantly proven in these 1883, the Smith Moquette Loom cases. The age, sex, and condition Company of Yonkers executed a of health of the children are proper mortgage to the plaintiffs. The facts to be known by a jury. So company failed to pay and plainalso it is proper to show the con tiffs brought these actions to fore. dition of the family pecuniarily. close the mortgage. The parties The pecuniary loss to the next of were the mortgagees and mortkin may be very much affected by gagors and Alexander Smith & this fact. The jury were entitled Son's Carpet Company, a private to know the family and their con- ' partnership which had taken a

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lease of the mortgaged premises While it is not proper to detersubsequent to the mortgage. These mine the merits upon an applica. were all the necessary parties to a tion to be made a defendant, someforeclosure action. 75 N. Y., 127. thing is needed to make a defense.

The mortgage was given with The mortgage is not illegal and the assent of over two-thirds of void because of the manner of exthe stockholders of the company ecution or of the parties to it if giving the mortgage, as required there was a debt, and that there by statute. It appears that plain was a full consideration is not put tiffs, however, were trustees of the in issue by any allegation in the mortgagor and probably were a moving papers which either neces. part or all of the assenting stock sarily or inferentially charges it holders who made up the two. Assuming, therefore, that the apthirds. While as such trustees they plicant might be made a party held a fiduciary relation which defendant upon proper averments, rendered improper dealings in he fails to make a case therefor. their own behalf in respect to mat Order affirmed. ters involving the trust, yet if the Opinion by Barnard, P. J.; debt was fair and honest the dis- | Pratt and Dykman, JJ., concur. charge of the debt must precede an avoidance of the transaction.

CONTEMPT. PLEADING. 84 N. Y., 190; 88 id., 1; 91 id., 650. The applicant to be made a N. Y. SUPREME COURT. GENERAL party defendant was a stockholder TERM. SECOND DEPT. when the mortgage was given. His

Lodoviska M. Brisbane, respt., application is made under $ 452 of

v. Albert Brisbane, applt. the Code, and if he is included in

Decided Dec., 1884. the class of persons who are to be made parties he must show a de- Power to strike out a defense in actions in fense.

equity for refusal to obey orders of the Upon this point he fails. He

Court existed in the Court of Chancery

and now exists. Section 1773 of the Code makes an affidavit that the mort.

does not purport to take it away, but only gage is fictitious, illegal and void.

to provide a way by which a disobedient He gives no facts showing why. party may be fined or imprisoned for a Plaintiffs establish in answer to this contempt for refusing to obey orders for

the payment of alimony. general allegation that the mortgage was given “for money loaned Appeal from two orders, one by these plaintiffs to said company striking out the amended answer and by it used in the construction of defendant unless within five of its factory building and pur days after service of a copy of chase of machinery and fixtures said order on defendant's attorney used in its manufacturing busi. defendant pay the sum of $1,625 ness. "That it was given for full accrued alimony and counsel fee ; and valid consideration and is not the second order absolutely strikfictitious, illegal and void." ing out the amended answer by

reason of the non-payment of such FORECLOSURE. SALE. PUBmoney. The action is for an abso.

LIC ADMINISTRATOR. lute divorce.

Francis H. Van Vechten, for N. Y. SUPREME COURT. GENERAL applt.

TERM. SECOND DEPT. Brewster Kissam, for respt.

George B. Abbott, pub. admr., Held, That the Court had power respt., V. J. S. Curran. S. V. Lowto strike out defendant's answer ; ell, purchaser, applt. that the power to strike out a defense in actions in equity for

Decided Sept., 1884. refusal to obey orders of the Court An objection that the property sold on foreexisted in the Court of Chancery closure was not sufficiently described in and now exists, 82 N. Y., 260, un

the mortgage or foreclosure proceedings is

sufficiently met by an affidavit of a surveyor less § 1773 of the Code has taken

that there is no difficulty in identifying the it away. That section does not

property in question from the description purport to take it away, but only given in the judgment. to provide a way by which a dis An objection that the bond and mortgage obedient party may be fined or

were not produced before the referee is

sufficiently met by proof that the same bad imprisoned for a contempt for re

been duly executed and delivered, that no fusing to obey orders for the pay. part of the debt had been paid, and by ment of alimony. The real change proof of the loss of the original papers, in intended seems to have been that

the absence of any evidence to the con

trary. before punishment by fine or im

An objection that the sale was not made by prisonment could be inflicted proof

the sheriff cannot obtain where the sale should be given that the amount was regular in all other respects, and required by the order could not be a sale made by a referee appointed on realized from sequestration or by a

the written consent of all the parties who

have appeared, presents no irregularity. receiver of the property of the

The fact that the notice of the sale was pubparty. There does not appear to

lished sometimes only in the second edition have been any design to destroy of a newspaper affords no objection to the the old principle that Courts of

title. Equity could and would lawfully The words in the grant, by the State, of

the lands in suit, “for commercial purrefuse to hear a person who was in

poses only,” are too vague on which to contempt for a violation of an order

base an objection. of the Court. One who asks equity Letters duly granted to the plantiff are conmust do equity. No right is taken clusive evidence of his title to a mortgage away which may not at once be belonging to the intestate, and of his au

thority to sue. regained by the applicaiion of defendant to the Court for leave to Appeal from two orders of the pay the amount ordered to be paid Special Term, one directing the and thereupon to answer and con appellant to complete his purtest upon the merits.

chase, and the second denying his Order affirmed.

motion for a rehearing on further Opinion by Barnard, P. J. ; objections to title not urged on the Pratt and Dykman, JJ., concur. first motion.


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S. V. Lowell, appellant in per- sheriff of Kings County afforded

no reason for rejecting the title if H. B. Hathaway, for respt. the court acquired jurisdiction

Held, That the objection, that and the sale were in other respects the property sought to be fore- regular. 14 Hun, 617; 12 Abb., closed was

not sufficiently de- 473; New Code, $ 1323. That, scribed in the mortgage or fore- further, inasmuch as the sale was closure proceedings, is sufficiently made by a referee, on the written met by the affidavit of the sur consent of all parties who had apveyor, that there is no difficulty peared, there was no irregularity in identifying the property in in the method of sale. question from the description Also held, That the fact that given in the judgment.

some of the insertions of the notice The summons ran: George B. of sale appeared only in the second Abbott, public administrator, in edition of the paper publishing Kings County, as administrator, the same does not affect the title with the will annexed, of the of the purchaser. 22 Hun, 125. goods, chattels and credits which Also held, That the words in were of Robert J. McGuire, de. the grant from the State of the ceased, plaintiff, against John S. lands in suit, “For commercial Curran, James T. Curran, * * purposes only,” are too vague and and all

persons or owners indefinite to justify any objection known, having or claiming an in- based on a possible claim on the terest in the premises sought to part of the people for forfeiture. be foreclosed in this action; such Also held, That the surrogate unknown persons being herein de- had jurisdiction of the subjectscribed as the wife, widow, heirs- matter, and his jurisdiction was at-law, devisees, grantees, assign- properly invoked, the proceedings ees, or next of kin, if any, of said for the appointment of plaintiff defendant, Michael Curran, and were regular and letters having their respective wives and hus. been granted they are conclusive bands, if any, defendants.

evidence of plaintiff's title to the Held, a proper form.

mortgage and authority to sue. Also held, That the objection Code Civ. Pro., $ 2591 ; 52 N. Y., that the bond and mortgage were 430 ; 92 id., 70, 76. not produced before the referee is Order affirmed. sufficiently met by the proof that Opinion by Pratt, J.; Barnard, the same had been duly executed P. J., and Dykman, J., concur. and delivered; that no part of the debt had been paid, and the loss

PLEADING. ASSESSMENTS. of the original papers, in the absence of any evidence to the con


Also held, That the objection Knapp, applt., v. The City of that the sale was not made by the Brooklyn, respt.

Vol. 20.-No. 15a.

Decided Dec. 16, 1884.

Laws of 1874, by inserting a proThe complaint in an action to vacate a por

vision that: Hereafter no suit tion of an assessment alleged that the ex or action in the nature of a bill in pense of the improvement had been in- equity, or otherwise, shall be comcreased by reason of the illegal action, frauds

menced for the vacation of any and irregularities of defendant's officers, but did not specify the irregularities, frauds assessment in said city or to reor illegal actions. Held, That it merely move a cloud upon title; but stated a legal conclusion and was insuf

owners of property shall be hereficient.

after confined for their remedies, The amendment of 1874 to Chap. 338, Laws of 1858, does not apply to the city of in such cases, to the proceedings Brooklyn.

under the act hereby amended." This action was brought to va

In 1862 (Cnap. 63, § 43) the act cate so much of a paid assessment consolidating the cities of Brookas constitutes an illegal or fraud-lyn and Williamsburg and the ulent increase. The complaint al- town of Bushwick, passed in 1854, leged that the expense of the local

was amended by inserting the improvement for which said assess- following, viz.: “the provisions of ment was laid had been increased the act entitled an act relating to in dollars and cents by reason of frauds in assessments for local imthe illegal action, frauds and ir- provements in the city of New regularities of defendant's officers. York, passed April 17, 1858, are No actions of such officers were hereby extended and made applipointed out as illegal, no frands cable to the city of Brooklyn and described or averred, and no ir

to the proceedings relative to any regularities specified. The com

assessments made or to be made plaint was demurred to that it did therein," not state facts constituting a cause

In 1871 (Chap. 483) the act of of action, but pleaded a legal con

1862 was amended by adding to clusion.

§ 43 these words, but the said act, John T. Barnard, for applt.

so far as applicable to the city of

Brooklyn, is hereby so amended John. A. Taylor, for respt.

that no proceedings shall be taken Held, That the action was main- thereunder except at a regular tainable if no statutory prohibition term of the court.” It was claimed existed, 87 N. Y., 452; that the that the amendment in 1874 of the substance of the complaint act of 1858 became at once the amounted only to an allegation law for the city of Brooklyn. that the increase was illegal; that Held, Untenable ; that the act is not sufficient. 44 Barb., 169; of 1862 incorporated in the Brook12 J. & S., 12; 60 How. Pr., 98. lyn charter the act of 1858 as it

Chapter 338 of the Laws of 1858, then stood, and not subsequent an act in relation to frauds in as. amendments and alterations of sessments for local improvements said act of 1858. in the city of New York, was Bd. of Excise v. Curley, 9 Abb. amended by Chapter 312 of the N. C., 100; Dawson v. Horan, 5

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