« AnteriorContinuar »
this State and not by those of the State of See CONTRACT, 16; FIRE INSURANCE, 1;
his residence.—Ro88 v. Wigg, 215.
MUTUAL BENEFIT SOCIETIES, 2 ; NEGLI-
2. The fact that the officer knew the affiant
or had satisfactory proof of his identity
need not be certified by the officer.--Id.
3. A certificate by the clerk that he knows
the name of the officer subscribed to the
jurat to be the autograph signature of such
See CONTEMPT ; DIVORCE.
officer is a substantial compliance with
See ATTACHMENT, 3, 4, 9, 11, 12; DEPO-
1. The defense of a human being justifies
SITIONS, 1, 5.
the killing of a dog.-Boecher v. Lutz,
2. The owner of an animal may lawfully kill
1. Plaintiff's boat, with a load of sand con a dog, if such killing be necessary to save
signed to defendants, arrived at the latter's the animal from death or from serious iu.
wharf near the middle of the night. A
watchman in the employ of defendants was
upon the wharf, to whom the plaintiff ap 3. If two dogs are fighting, and cannot other.
plied for directions as to where the sand wise be separated, the dog that made the
was wanted, and was answered by the attack may lawfully be killed.-Id.
watchman that he could not tell, but he in.
dicated a point upon the wharf where sand
4. If it be proved that a dog is accustomed
had previously been received by defend-
to bite mankind, and that it was upon the
ants. Plaintiff moored bis boat at that highway unmuzzled, and in a condition to
point, and upon the tide going out the boat
do injury to human beings, the killing of it
rested upon the ground, which at that place
is lawful; and there is no rule of law
proved to be uneven, and for that reason limiting proof of acts of ferocity to those
inflicted the injury to the plaintiff's boat,
committed within a year prior to the trial.
which was the subject of the action. Feld,
That the watchman had apparent authority
to indicate where a vessel might be safely
moored, and that the defendants could not
1. In summary proceedings to remove a ten-
escape liability for his act by asserting that
ant from possession, instituted before a
his real authority extended only to the pro justice of the peace, no appeal lies for a
tection of the premises against fire, etc. new trial in the County Court.-Broun v.
Barber v. Abendroth Bros., 7.
2. An agent authorized to sell reaping ma 2. The acceptance by a party or his attorney
chines and to give them a pretty good rec of the cosis awarded io him by a judgment
ommendation, bas implied power to bind precludes him from thereafter appealing
his principal by a warranty.-Brayley v. from said judgment.-Carll v. Oakley et al.,
3. Where the court in charging the jury mis 3. Where a judgment directs the payment to
stated the agent's testimony in this partic defendant of costs “to be adjusted by the
ular ; that he would warrant the machine clerk," the insertion of the amount thereof
" for five years
to do good work, but the
in the judgment is not necessary in order
principal's counsel neglected to call the to entitle defeudant's attorney to demand
attention of the court to the fact, and the
whole case was tried upon the theory that
the machine was defective from the first, 4. Where a judgment is reversed upon the
Held, That this did not prejudice the prin facts it is the duty of the successful party
cipal, if the court was justified from the to see that the order of reversal shows that
evidence in charging that there was a war to be the case; if the order does not state
that it was made on questions of fact the
reversal will be deemed to have been made
4. Where the agent admitted that he said he
on questions of law only, and can only be
would warrant the machine to do good justified by some error of law. The opinion
work and to be durable and strong, the of the court cannot be cited to sustain it.-
court is justified in charging that a war Shaw v. The N. Y., L, E. & W. RR. Co.,
ranty was given.-Id.
5. An agent cannot create an authority in 5. An objection which might have been ob-
himself to do a particular act by its per viated if raised on the trial, but wbich was
formance or by asserting his authority to do not so raised, is not available on appeal.
it.- Fouler v. The Home Machine Co., 521, Id.
6. Where neither the order of Special Term,
vacating an attachment, uor the order of
affirmance at General Term, specifies the
ground on which they were made, it cannot
be said by the Appellate Court that they
were not made on the ground specified in
the order to show cause on which the mo-
tion to vacate was based.-Bate v. McDowell
et al., 268.
7. No appeal will lie to the Court of Appeals
from an order vacating an attachment on
the ground of insufficiency of the affidavit
on which it was granted. — Id.
8. An order of General Term reversing a
judgment below is appealable although it
is silent as to the reasons or facts which led
to such reversal. If the court was influ-
enced by questions of fact and it is material
to the respondent to make this apparent, he
should see that the order shows that such
was the case. — The Rider Life Raft Co. v.
9. An order of General Term, reversing an
order denying motion to punish a contempt
of court, and remitting the case for further
proceedings, is not a final order, and is not
appealable to the Court of Appeals.-Cros-
by v. Stephan, 373.
10. A party to an action cannot avail himself
of such parts of a judgment therein as are
favorable to him and then appeal from those
which are adverse, where the provisions of
the judgment are so connected and depend.
ent as to make it inequitable to permit such
an appeal.—Harris v. Taylor et al., 379.
manding defendant to audit a bill of about
$400. Upon application by defendant to
be allowed to appeal to the Court of Ap-
peals under Code, $ 191, sub. 3, Held, That
the application was unnecessary; that an
appeal from an order granting, in the first
instance, a writ of peremptory mandamus
is to be treated as an appeal from a final
order in a special proceeding.– The People
ex rel. Collins v. Spicer, 444.
15. The refusal of sureties upon an undertak.
ing to stay proceedings pending an appeal
to the General Term to justify, after their
suíficiency has been excepted to and notice
of justification served designating a time
for that purpose, relieves them of their
liability upon such undertaking, and such
liability cannot be revived, without their
consent, by the withdrawal of the excep.
tion and waiver of justification.—Hoffman
et al. v. Smith et al., 476.
16. An undertaking on appeal to the Court of
Appeals must be executed by at least two
sureties ; the appellant cannot himself be
one of the sureties, nor can the approval by
a judge of a guaranty company under
chap. 486, Laws of 1881, take the place of
the two sureties.- Nichols v. MacLean, 492.
17. An appellant is only required to file the
return and serve the printed cases. The
respondent may, if he so desires. place the
case on the calendar and notice for argu-
18. If appellant desires the appellate court
to review the evidence upon the merits, he
is required to make a motion for a new
trial, either upon the minutes of the court,
or upon a case and exceptions, and appeal
from the order denying the motion, An
appeal simply from the judgment brings
up for review only questions of law. -
Olmstead v. Reed, 503.
19. A judgment entered upon the direction of
the court upon the trial of an issue of fact
cannot be reviewed unless a decision is
signed and filed determining the issues of
fact and law.-Benjamin v. Allen, 542.
11. Where, under Code, S 191, sub. 3, the
permission of the General Term is requisite
to go to the Court of Appeals, the applica-
tion must be made at the next General Term
after judgment is entered. If not made
then it will be too late, and the court has
no power to relieve.- De Freest et al., v. The
City of Troy, 401.
12. An appellate court will not consider ques.
tions whici can be presented only by an
appeal from the decision of an inferior
court unless the questions are within the
record ; hence on appeal from an order
granting a new trial on the minutes, the
court will not consider the question whether
the verdict was contrary to the evidence
when the case does not show that the mo-
tion for a new trial was made on that
ground.-Ilinman v. Stilwell, 401.
13. Where the case does not disclose the
ground on which the motion was made, the
exceptions taken on the trial cannot be con-
sidered on the appeal.-Id.
14. The Special Term made an order granting
a peremptory writ of mandamus command-
ing defendant to audit certain bills. The
General Term modified this order, but still
directed a peremptory mandamus com-
See CERTIORARI, 1; CONTRACT, 15, 22 ;
DRAINAGE ;. EMINENT DOMAIN, 13, ;
JUDGMENT, 6 ; PLEADING, 3 ; PRACTICE, 4,
8-11 ; Taxes, 10.
1. What facts are sufficient to slow an in-
tent to dispose of property with intent to
defraud creditors within the statute relat-
ing to orders of arrest and warrants of at-
tachment. — Ross v. Wigg, 215.
See FALSE IMPRISONMENT, 2.
1. Relator was convicted of assault in the
third degree and was sentenced to imprison-
ment in State prison for one year. Held,
That the offense was punishable only by
fine or imprisonment in a penitentary, or
county jail ; that as the Court of Sessions
exceeded its jurisdiction its judgment could
not be enforced ; but the conviction being
valid, relator was not entitled to a discharge
on habeas corpus. — The People ex rel. Devoe v.
2. Defendant was clerk of a school district,
and issued to plaintiff, the collector, the
warrant for the collection of the school tax.
IIeld, That as he thus set plaintiff in motion
he was not in a position to justify an assault
upon plaintiff for the purpose of prevent-
ing the collection of the tax by a levy on
his property, on the ground that such levy
was illegal because plaintiff had not
given the bond required by law.- Bingham
v. Evans, 181.
See RAILROADS, 13-15.
1. Under the charter of Buffalo a claim by a
property owner for damages by reason of
a change of grade of a street may be made
within one year after the actual change of
the grade. — The People ex rel Brisbane et al
v. Zoll et al., 174.
2. The assessors set off against the damages
suffered by relators the benefit received.
Held, That whether any rule of law was
violated to the injury of the adjoining
owners was a question of law and ihe de.
cision of the assessors thereon was open to
3. The city of Dunkirk has power to assess a
street railway on its structures for a share
of the cost of a sewer laid in the street
through which the railway runs.- The
People ex rel. The D. & F. RR. Co. v. The
City of Dunkirk, 230.
4. A city took title to a strip of land for a
street. The street as laid out passed through
hills and over ravines. In making this
street, where it passed through hills, the
contractor made slopes on adjacent private
property at a proper angle to prevent slides,
and where the street crossed ravines the
fillings were made in part on private prop;
erty in order to secure the established
width at grade. The adjacent owners en.
croached upon acquiesced in this construc-
tion. Held, That one assessed for the im
7. The complaint in an action to vacate a
portion of an assessment alleged that the
expense of the improvement had been in-
creased by reason of the illegal action,
frauds and irregularities of defendant's
officers, but did not specify the irregular-
ities, frauds or illegal actions. Held, That
it merely stated a legal conclusion and was
insufficient.-Knapp v. The City of Brook-
8. The amendment of 1874 to Chap. 338,
Laws of 1858, does not apply to the City of
9, The court has power to order the sever-
ance of a joint petition under Chap. 3.8,
Laws of 1858, and to grant leave to the
petitioners to serve separate petitions, and
a proceedicg under a separate petition
served under such leave must be considered
as a continuation of the one originally
instituted.-In re petition of Mehrbach, 359.
See CLOUD ON TITLE, 1, 2.
1. An order not drawn upon or designating
any particular fund, nor specifying any
amount to be paid, but merely directing the
payment of “the amount of our account
with them” (the payees), may, by virtue of
a parol agreement between the drawer and
payees, and notice thereof to the drawee,
operate as an equitable assignment of mon.
eys to become due, so far as may be neces.
sary to satisfy the amount of the present
and any future claims that may be due to
the payees of the order.- Rondley et al. v.
The First M. E. Ch., 205.
See EVIDENCE, 34; FRAUD, 19; JUDGMENT, 4;
MORTGAGE, 16, 17; SET OFF, 3.
ASSIGNMENT FOR CREDITORS.
1. An assignee for the benefit of creditors
cannot by any word or act of disclaimer
relieve himself from the obligation to col.
lect the estate and distribute it according
to the assignment.-Crouse et al. v. Froth-
ingham el al., 22.
2. The recording of an assignment made for
the benefit of creditors under the Act of
1877 is not essential in order to pass the
title to the property assigned, as against an
attaching creditor levying thereon after the
delivery and acceptance of the assignment.
Învaded and who had paid the assessment – McBlain v. Speelman, 455.
under protest could not recover the sum
paid.--Moore v. The City of Albany, 282.
5. An assessment cannot be declared valid in
part and plaintiff be given judgment for
another part declared void.- Id.
6. It seems that in such a case the city would
not be liable even to an adjacent owner for
cuts and fills made upon his land.-Id.
3. When a general assignment for the benefit
of creditors has been properly acknowl.
edged both by the assignor and assignee,
but the certificates of acknowledgment an-
nexed thereto are defective, the potary
taking such acknowledgments may, after
the death of the assignor, make proper
certificates, and the assignment may then
be filed and recorded and take effect from
that date, provided that no rights of other expenses incurred by him in the proceed-
parties intervene.—Camp v. Buxton, 479. ings taken in that manner. --Id.
See ATTACHMENT, 4; Costs, 1; LEASE, 1, 2; 8. A debt which has been fraudulently con-
tracted, the debtor having obtained credit
upon false representations of solvency, be-
comes due immediately upon the discovery
of such fraud, and an action may be com-
1. Plaintiff's goods were seized and sold under
menced to recover it and an attachment
an attachment issued by a court of general
issued, notwithstanding the fact that the
jurisdiction against him as non-resident.
credit given has not expired at the time of
After the sale an attorney appeared for
the commencement of such action and
plaintiff, who it appeared had not author-
issuance of the attachment.- Muser v Liss-
ized such appearance. In an action for con-
version, Held, That the jurisdiction of the
9. Where an affidavit for an attachment is
court did not depend upon the appearance properly made by an agent who personally
of an attorney, but upon the attachment and
transacted the particular business with de-
due publication of a summons, and that its
action must be presumed to be valid. -
fendant and is acquainted with all the
Remond v. Easton et al., 41.
facts, a statement that the amount alleged
is due “over and above all set offs, etc.,
2. A claim that the defendants were only lia-
which defendant has against him," is suf-
ble severally, although sued jointly, should
ficient.-Frankel v. Hays et al., 417.
be pleaded as a defence in that action, and
10. The presumption is that the date of a notc
cannot be raised for the first time in a sub-
was the day of its delivery.-Id.
11. An affidavit stated that defendants had a
3. An affidavit made by the agent of plaintiff
for the purpose of procuring an attachment,
stock of goods two and a half years ago
stating that a certain sum is due the plain-
worth $10,000, and borrowed during that
tiff over and above all counterclaims known
time $45,000; that they admitted to de-
to deponent, does not comply with the re-
ponent that they have been doing a not
quirement of the Code, that such sum
unprosperous business; that their branch
should be stated to be over and above all
stores have been making money instead of
counterclaims, etc., known to plaintiff, and
losing; that their stock has greatly diminish
ed in quantity and value, and they say they
will not sustain attachment. Smith et al.
V. Arnold et al.,
cannot account for it, and have nothing to
show for it; that they are insolvent; and
4. A statement in an affidavit upon which an
that one of defendants proposed a scheme
attachment is granted, that deponent "begs
for the purpose of defrauding certain
leave to refer to a general assignment for
creditors of the firm. IIeld, Sufficient, in
the benefit of creditors, executed by the de-
the absence of denial or explanation. The
fendant and the inventories filed in connec-
affidavit need not state that an action has
tion therewith, and to make the same a
part of the moving papers herein," is not
12 The court cannot order an affidavit made
sufficient to entitle plaintiff to read said as-
signment and inventories in evidence upon
subsequently to the granting of an attach-
ment to be filed nunc pro tunc of the date
a motion to vacate the attachment made
when the attachment was granted, and with
upon the papers upon which it was granted.
the same force and effect as if the same had
been read on the motion for said attach-
5. The sheriff is not entitled to additional
ment, and consider the same in support of
compensation for his trouble and expenses
the attachment upon a motion to vacate it
in taking possession of and preserving prop-
made upon the affidavits upon which it was
erty seized under an attachment when the granted. --Sutherland et al. V. Bradner,
property attached consists of a debt owing
to defendant and the attachment is made
See APPEAL, 6, 7; ARREST ; ASSIGNMENT
by serving a copy of the attachment with
notice stating the seizure to the debtors.-
FOR CREDITORS, 2; Costs, 9; EXECUTION,
Marfield et al. v. Taylor et al., 121.
3; SHERIFFS, 2-4.
6. The sheriff is not entitled to charge a gross
sum for making an inventory of property
seized under an attachment. He must
1. Where an attorney's name continued for-
charge by the number of folios contained mally on the record of a case as the attor-
ney of one of the defendants, when he had
really withdrawn from the case, Held, That
7. The sheriff has the right to bring an action he was not entitled to costs for the subse-
for the recovery of a debt seized by him quent services performed by another attor-
under an attachment and as incidental to ney for both defendants. — The Town of
that riglit he is entitled to be allowed the Wheatland et al. v. Tuylor et al.,
2. Evidence that plaintiff was requested by
defendants' attorney to assist him in pro-
ceedings before the surrogate to prove a
will ; that when they appeared before the
surrogate defendants were present, and it
was announced in their presence and bear-
ing that plaintiff appeared as counsel for
the executors, who were the defendants ;
that the hearing occupied several days, and
that some of the defendants were present
each day ; that he drew objections to a
codicil, drafted the petition of appeal, and
prepared a brief thereof, is sufficient,
though contradicted, to warrant the jury in
finding an employment by defendants.-
Tucker v. Staunton et al., 43.
3. An attorney and counsel has the authority,
arising out of his relation to the party em-
ploying him, to do all legal acts in the pros-
ecution of the legal proceedings in which
he is employed, or required to secure an
intelligent and just disposition thereof.-
Foland v. Dayton, 59.
4. In an action brought by the plaintiff to re-
cover for services rendered defendant in
preparing documents used in a legal pro-
ceeding which was prosecuted by the de-
fendant, it was proposed to be shown that
the attorney for the defendant in that pro-
ceeding had requested plaintiff to prepare
the documents. This evidence was
cluded. Held, Error.-Id.
5. A promise by an attorney to repay a sum
of money which his client had been com-
pelled to pay by reason of his mistake or
negligence is founded upon a good consid-
eration, and is a proper subject of counter-
claim in a suit for services. — Tucker v. Ely,
an action the attorney has no authority to
compromise, satisfy or vacale it without
actual satisfaction. --Zapp v. Miller, 321.
10. When, after a judgment has been red-
dered setting aside a conveyance of land by
a ward shortly after coming of age to her
late guardian, the consideration of which
was a check given by the latter, the attorney
for the plaintiff, without authority from
her, procures the certification of the check,
such act on the part of the attorney will
not bind the plaintiff, and she cannot be
held thereby to have made the check her
own and have affirmed the transactions
which the action was brought to vacate and
rescind, and the endorsement of the certi-
fied check by the plaintiff for the purpose
of returning it to the drawer is not a ratifi-
cation of the act of her attorney in causing
it to be certified.-Id.
11. Under $ 3278, Code Civ. Proc., making
the attorney liable for costs to the extent of
$100 where security has not been given on
behalf of a non-resident plaintiff, if the
plaintiff and his family are do niciled in
another State he is deemed a non-resident,
though at the time the action was begun,
and for many years previous, he was en
gaged in business in New York City.-
Krom v. Kursheedt, 339.
12. That the attorney brought the action in
good faith. supposing plaintiff resided here,
is no defense to his liability, nor is the
omission of the defendant to demand secu.
rity during the pendency of the action :
13. When a dispute arises between an attor-
ney and clieni concerning the amount of
the former's charges for services performed
in an action, the court, upon motion there.
in, may refer it 10 a referee to hear and de-
termine the subject in controversy and
report to the court, but such order cannot
provide that the attorney shall bear the es-
peuses of the reference and the costs of the
motion unless he establishes a lien to a
certain amount upon the judgment recor-
ered in the action. Although the attorney
may not appear upon such a reference he
still has the riglitio insist from the evidence
taken and filed that the report was not au-
thorized by it, and the regular mode for
doing that is by filing exceptions within
eight days after the service of notice of
filing the report and the evidence, and if no
opportunity to file such exceptions is given
before an application for the confirmation
of the report, an order confirming it is ir-
regular and will be reversed. -Amsdell et al.
v. Martin, 370,
14. On an application to compel an attorney
to pay over money received as trustee from
his client to pay out in a specified way and
for a certain purpose which was not ac-
complished, when the attorney does not
deny the receipt of the money or the failure
6. An attorney-at-law who is employed to
prevent or avoid apprehended proceedings
for the foreclosure of a mortgage, and who
for that purpose receives money to apply
in paying the interest due upon the mort-
gage, receives such money while acting in
a professional capacity, and by converting
such money to his own use subjects himself
to the summary control and power of the
court.-In re application of Larner, 73.
7. Although as a general principle an attor-
ney has a lien for compensation for his
services upon the fund of his client which
may be received by him, such lien does not
attach to money delivered to him by his
client for a specific purpose to which he
agrees to apply it.-Id.
8. Section 68, 2 R. S., 287, refers to deceit
and collusion practiced by an attorney in
a suit actually pending in court, with in-
tent to deceive the court or the party, avd
not to what passes between an attorney and
his client before any action has been con-
menced.—Looj et al. v. Lawton, 309.
9. Where a judgment has been recovered in