subscriptions for stock of the corporation,
and failure to pay the same over to the
company, and the answers deny the failure
to pay over said moneys and expressly
allege payment of the same, the plaintiff
must prove said non-payment in order to
sustain his action.-Andrews v. Moller et al.,
377.

12. Neither the continuance of default in
paying a debt nor subsequent omissions of
the company to make annual reports can
renew the liability of a trustee for such
debt, or create a new right of action.-The
Rector, &c., of Trinity Ch. v. Vanderbilt,

488.

13. A corporation lessee covenanted to pay a
certain sum as rent, and to pay the taxes
and water rates imposed for each year, and
if not so paid before the 1st of February
after they become due, then to pay on that
day all penalties, etc., as additional rent.
Held, That on default of payment of the
taxes and water rates no cause of action to
recover them accrued to the lessor until the
1st of February after they were due.-Id.
14. It is very questionable whether a debt
owing by a corporation for advances made
by one of its directors can be included in
the debts of such corporation in order to
render its directors personally liable for
them under § 22 of Chap. 611, Laws of
1875, upon the ground that such debts ex-
ceed the capital stock of the corporation.-
Robinson et al v. Thompson, impld., 557.
See MORTGAGE, 6.

COSTS.

1. In an action for the removal of an assignee
for the benefit of creditors and the appoint-
ment of a receiver of the assigned property
and in which an answer was interposed but
which was discontinued before trial upon
payment of costs, upon the application of
the plaintiff, Held, That there was no basis
upon which a computation for an allowance
could be properly made, and that the court
had no power to make an allowance.-
Meyer v. Rasquin, 98.

2. Where no item of a contested claim against
an estate is rejected and the amount actu-
ally due depends upon the mode of com-
putation, or whether the claim bears inter-
est, or from what time, Held, That an
order for costs and disbursements to claim-
ant on the ground of unreasonable resist-
ance is not error.-Hyland v. Carpenter et
261.

al.,

3. 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.
-Studwell v. Baxter, 340.

4. J. having sued E. to recover a just de-
mand, E. delivered to J.'s attorney in the

action divers claims on the understanding
with the attorney that collections thereon
were to be applied in satisfaction of J.'s
claims, and the surplus to be paid to E. Of
this J. was aware. Thereafter the attorney
brought action in E.'s name on one of the
claims which resulted in a judgment for
costs against E. Neither this nor any ac-
tion was authorized by J., and he was
ignorant of it till a motion was made to
charge him with such costs. Held, That J.
could not be made liable for the costs, un-
der $3247, Code Civ Pro., as the party
beneficially interested in the recovery.-
Elliott v. Lemcky, 348.

5. An award of separate bills of costs to
several defendants is not required by § 3230
of the Code of Civ. Pro. to be made at the
time of the trial, and the confirmation by
the court of the taxation of such separate
bills, upon a motion to set it aside, operates
as such award.-Andrews v. Moller et al.,
877.

6. Under Chap. 237, Laws of 1878, prescrib-
ing a penalty for bringing skimmed milk to
a cheese factory, to be sued for by the per-
sons defrauded, the plaintiffs are entitled to
full costs although the penalty recovered
be less than fifty dollars.-Furman et al., v.
Cunningham, 416.

7. The water commissioners of a village made
a contract with defendants for certain ma-
chinery to be paid for by the village on
their acceptance of it, the title to remain in
defendants until full payment. This has not
been made. Plaintiffs, as taxpayers, by
this action sought to restrain the perform-
ance of the contract as ultra vires, but were
defeated, and defendants obtained an extra
allowance based on the contract price. Held,
Error; that the true basis for such allow-
ance was the difference between the con-
tract price and the value of the machinery
to defendants after it had been thrown on
their hands by the failure of the village to
take it.-Mingay et al. v. The Holly Mfg.
Co., impld., 513.

8. If a complaint set forth two causes of ac-
tion, upon one of which plaintiff recovers,
but fails to establish the other cause of ac-
tion, the defendant is not entitled to costs
under § 3234, Code Civ. Pro.-Barlow v.
Barlow, 561.

9. Plaintiff is not entitled to costs of an at-
tachment where the attachment is set aside,
--Id.

See APPEAL, 2, 3; ATTORNEYS, 1, 11, 12;
GUARDIANS, 1; REPLEVIN, 2; SUMMARY
PROCEEDINGS, 2-4.

CREDITORS' ACTION.

1. Where judgment debtors, after verdict
rendered but before judgment entered,
transferred possession of the real estate to

a mortgagee, and also the title to a large
amount of unencumbered personal prop-
erty, but continued in possession as his
agent, by virtue of the agreement, and the
real estate was encumbered by apparent
liens nearly equal to the full value of the
land, though some were alleged to have
been paid, a complaint setting forth these
facts and alleging that the agreement or
transfer was made with intent to hinder,
delay and defraud the plaintiff, and that
execution had been returned unsatisfied,
and praying for a discovery, account and a
receiver, sets forth a good cause of action:
(1) for a discovery under section 1871 of
the Code; (2) there is no complete and
adequate remedy at law under the section;
(3) on the ground of collusion and fraud.-
Mead v. Stratton et al., 44.

COUNTERCLAIM.

See ATTORNEYS, 5; LIMITATIONS, 2; PLEAD-
ING, 3.

COVENANT.

See DEEDS, 7, 12, 19, 20.
CRIMINAL LAW.

1. A criminal charge may be resubmitted to
the grand jury under $270 of the Code of
Criminal Procedure as often as the court
may so direct.-The People v. Lynch, 9.

2. A non-expert witness when examined as
to facts within his observation or knowl-
edge tending to show soundness or un-
soundness of mind of another may char-
acterize as rational or irrational the acts
and declarations to which he testifies.-The
People v. Conroy, 242.

3. Where an indictment consists of two
counts, only one of which is submitted to
the jury, a reversal by the General Term
of a conviction thereon, on the ground of
insufficiency of the evidence under that
count, will not be interfered with, although
the evidence authorized a conviction under
the other count.-Id.

4. The objection that an indictment does not
conform to $275, 276, Code Crim. Pro.,
can only be taken by demurrer.-Id.

5. Upon the trial of an indictment the prisoner
was not formally arraigned, nor did he for-
mally plead. He was present with counsel
at the trial, made no objection to the failure
to arraign, nor did he request to plead.
After verdict these objections were first
raised by a motion in arrest of judgment.
Held, That they were untenable, no sub-
stantial right of the prisoner having been
taken away, and that the question was not
a proper ground for a motion in arrest of
judgment.-The People v Osterhout, 293.

See ABORTION; ASSAULT; BASTARDY; BAWDY
HOUSES; BLACKMAIL; BURGLARY; FOR-

GERY; MURDER; OLEOMARGARINE; PER
JURY; SUNDAY.

DAMAGES.

See CIVIL DAMAGE ACT, 3; CONTRACT, 4, 8,
17, 23; DEEDS, 20; EMINENT DOMAIN, 8,
11; EVIDENCE, 13; FRAUD, 13; RAIL-
ROADS, 8; SLANDER, 3; TRADE SECRET,
2; TRESPASS, 3, 5; WARRANTY, 1.

DEEDS.

1. Defendant gave to one P. a deed of cer-
tain property owned by him, which though
absolute upon its face was understood to be
held as security for a debt owing by him to
P. P. subsequently gave a deed of the
said property to plaintiff, who had
knowledge of the character of the convey-
ance to P. In an action of ejectment, Held,
That the deed to P. operated only as a
mortgage and that the deed of P. to plain-
tiff was no more than an assignment of said
mortgage, and that the title to the property
remained in defendant.-Berdell v. Berdell,
81.

2. The grantee named in a deed, the descrip-
tion in which erroneously omits a portion
of the premises intended to be conveyed, is
the equitable owner of the portion of the
premises so omitted, and the sale of such
premises upon the foreclosure of a mortgage
upon them, executed by such equitable
owner, conveys to the purchaser upon such
sale his equitable title and also a legal title
acquired by him subsequently to the exe-
cution of the mortgage.-Smyth v. Rowe et
al., 98.

3. In 1848 the city deeded certain water lots
to the owners of the adjacent upland, the
deed containing a covenant by the grantee
to build, within three months after being
required to do so, and not until so required,
bulkheads, wharves, streets, etc., and it
also provided that on failure to do so the
city might do the work at the grantee's ex-
pense or re-enter. The grantee and his
successors proceeded to make and gain the
land for twenty years under the direction
of the city officials. Held, That the deed
conveyed an absolute title, subject only to
be defeated by a breach of the conditions;
that a failure to fill in all the land was not
a defense to an action for eviction and in-
jury to the land; that the forfeiture might
be waived by the city or the time extended,
and that there was such a waiver; that the
condition in the deed and the limitation in
the ordinance of 1844 apply to the streets
and not to the lands outside of them.-
Duryea v. The Mayor, &c., of N. Y., 103.

4. The grantee gave to the city, without con-
sideration, a written license to change the
outlet of a sewer so that it would discharge
over the land outside of the street. Plain-
tiff on becoming the owner revoked said
license and proceeded to fill in his land,

whereupon the city prohibited his doing so,
as obstructing the outlet of the sewer. Held,
That the license was revocable at the pleas-
ure of the owner.―ld.

5. The deposit of materials upon a lot for the
purpose of making land constitutes such
materials a part of the real estate, and the
same right of action exists for an injury
thereto as would accrue for similar inju-
ries to the natural land.-Id.

6. The ordinance of 1856, fixing an exterior
water-line and authorizing the adjacent
owners to fill up to that line, although
annulled by Chap. 763, Laws of 1857, so far
as it attempted to establish an exterior line,
was a sufficient authority and consent to
fill up to the line established by the Act of
1857 to meet the requirements of the limita-
tion in the Sinking Fund Ordinance.-Id.

7. A right to build into the wall of a building
for support is an incumbrance within the
meaning of a covenant against incum-
brances.-Merrill v. Clark et al., 204.

8. Where a man, in what he believes to be his
last sickness and in view of approaching
death, deeds his property to his wife
through a third party, without considera-
tion, at his wife's request, she representing
to him that by so doing he will save the
expense of administration on his estate,
and he subsequently recovers, he can main-
tain an action to revoke said deed, and a
complaint alleging said facts states a good
cause of action.-Houghton v. Houghton et
al., 232.

9. Plaintiff's ancestor, B., sold certain land to
a cemetery association by deed, which pro-
vided that the grantee should pay to B. a
certain sum for each lot sold by it for a
burial-place; that B. should be entitled to
the grass and products of all parts which re-
main unsold until all the lots were sold and
had interments therein, and that in case the
grantee should fail to fulfill any of the prem-
ises on which the land was granted the
right of soil of all lots without interments
should revert to B., his heirs, etc. No lots
were sold and B. and his heirs remained in
possession until dispossessed by defendant,
claiming under a deed executed on sale un-
der execution against the association. Held,
That no title passed to the grantee under
this deed to which judgments against it
could attach; that the deed was not absolute
but conditional.-Bennett et al. v. Culver,
259.

10. One F., in 1851, deeded a certain hotel
property to plaintiff's grantor, with all the
right, title, etc., to and of all the water now
used on said premises, or to which said F.
may be entitled by use, reservation or
agreement with the N. Y. & E. RR. Co.,
or otherwise. The agreement referred to
was in a deed to the RR. Co., which con-
veyed a right to draw water for depot pur-
Vol. 20.-No. 25d.

poses, reserving the surplus water not re-
quired for that purpose. Held, That the
deed to plaintiff's grantor did not convey
all the surplus water, but only so much as
was then used on the premises conveyed;
but that plaintiff's title to that portion of
the surplus was prior to the right of any
other person to whom similar rights were
afterwards conveyed, and that in case of a
deficiency plaintiff was entitled to his sup-
ply first.-Read v. The Erie R. Co. et al.,
335.

11. A deed or mortgage cannot be held void
by reason of vagueness or uncertainty if by
any particulars in the description the thing
granted can be sufficiently ascertained to
enable the court to say that the words
chosen by the parties were intended to re-
late to it. The People ex rel. Myers V.
Storm, 338.

12. The widow and heirs of one C. conveyed
certain premises by warranty deed to de-

fendants, who gave back a mortgage.

Thereafter the premises were sold by order
of the Surrogate for the payment of the
debts of C. and defendants purchased on
the sale. In an action to foreclose the
mortgage, Held, That there was a construct-
ive eviction and a breach of the covenant
for quiet enjoyment, and that plaintiff was
not entitled to recover.-Tucker v. Cooney et
al., 406.

13. A deed to one L., from her father-in-law,
purported to convey certain premises in fee
and declared that it was given to enable her
to sell and convey them in fee simple if she
should so desire; it then contained a cove-
nant on the grantee's part, that upon a sale
she would invest the proceeds in good se-
curities, and on her death convey the
premises or the proceeds to children born
of her marriage with the grantor's son.
Held, That L., took only a life estate, and
issue having been born of the marriage a
valid remainder was created which vested
on the birth of the issue; that the power
of sale in the deed was a power in trust
which could only be exercised by the
grantee and could not be delegated to her
executor. Coleman v. Beach, 410.

14. When a person takes a deed of certain
real property as security for advances to be
made in discharging incumbrances thereon,
or under an agreement to reconvey said
property on repayment of such advances,
he cannot, either directly or indirectly,
acquire the incumbrances and through
their foreclosure obtain an absolute title.-—
Miller v. McGuckin et al., 429.

15. There is no exacting or unyielding rule as
to the evidence required to establish that a
deed, absolute in its form, is merely a
mortgage. All that is necessary is that the
proof shall clearly and satisfactorily main-
tain that fact.-Id.

16. When a person takes a deed of certain real
property under an agreement to reconvey
the same upon repayment to him within a
certain time of moneys advanced by him, a
failure to make such repayment within the
specified time does not deprive the party
entitled to the reconveyance of that right,
provided time is not of the essence of the
contract and the delay is excused and the
situation of the parties or the property is
not changed so that injury will result, and
the enhancement of the property in value
does not change such situation.-Id.

17. In such a case, in order to put the party
entitled to re-conveyance in default, the
other party must present his account and
call upon the first party to fulfill the agree-
ment by refunding the sum due.-Id.

18. A purchaser of real property, in examin-
ing the title thereto, is bound to consult
only the judgment in an action of foreclos-
ure involving it, and when it thereby ap-
pears that the sale of the property had been
regularly authorized, not even constructive
notice can be imputed to such purchaser of
anything contained in the pleadings.—Id.

19. Where the owner of a parcel of land en-
cumbered by two mortgages, for both of
which he was also personally liable, con-
veyed a portion to defendant, who assumed
and agreed to pay them as a part of the
purchase price, and afterwards conveyed
the remainder to B. by a quit-claim deed;
and upon default in payment the mortgages
were foreclosed and the whole parcel sold
to satisfy the mortgage debts, Held, That
B. was entitled to maintain an action upon
the covenant to recover the value of the
parcel lost to him by reason of defendant's
failure to pay the mortgages and the conse-
quent foreclosure sale.- Wilcox v. Campbell,

471.

20. The measure or rule of damages is the
value of the parcel lost to B. at the time of
its sale under the judgment of foreclosure,
it being less than the amount of the mort-
gages.-Id.

21. Where a deed is executed and delivered to
a husband and wife both are seized of the
entirety, and neither is severally seized of
any interest in the property, and each is
incapable by means of his or her sole deed
to convey any present right or interest in
the property to his or her grantee -Bram
v. Bram et al., 519.

22. A deed of conveyance made by husband
to wife directly for a more nominal consid-
eration passes no title, legal or equitable.
So held, in a case where the husband con-
veyed to his wife and after her death con-
veyed the same premises to his own child,
and the illegitimate son of the wife, her only
heir at law, made claim to the property.-
Johnson v. Rogers et al., 568.

See EASEMENT, 1-4; TRUST, 2, 3.

DEFENSE.

See BROKERS, 6; CORPORATIONS, 2; DEEDS,
3; ESTOPPEL, 4; FIRE INSURANCE, 21;
INDEMNITY, 2; LIFE INSURANCE, 1.

DEPOSITIONS.

1. An affidavit may be made by an attorney
who knows the facts for a party who seeks
to examine an adverse party under § 870 of
the Code.-Lane v. Williams et al., 16.

2. An examination of a defendant before trial
cannot be ordered for the purpose of ob-
taining proof that his signature to the cer-
tificate of incorporation of a certain corpo-
ration is genuine, when it is not denied
that such signature was acknowledged as
required by law.-Nott v. Clews, 274.

3. An examination of a defendant before trial
cannot be ordered for the purpose of ascer-
taining facts which the plaintiff can learn
from other sources which are accessible to
him.-Id.

4. A party cannot be examined before trial for
the purpose of obtaining admissions.-Mc-
Mahon v. The Brooklyn City RR. Co., 404.

5. A statement in the affidavit that the exam-
ination is desired for the purpose of using it
on the trial is not equivalent to a statement
that the applicant desires to offer or read
it in evidence on the trial. – Id.

6. The court, at Special Term, on notice, may
vacate an ex parte order of a judge.—Id.

DIRECTORS.

See BANKS, 6, 7.

DISCOVERY.

1. In an action brought by an administrator to
recover compensation for the use and occu-
pation of certain premises belonging to his
intestate, in which the defense was that for
a portion of the period for which such com-
pensation was claimed the premises had
been occupied by a corporation, and that
such corporation had paid the rent there-
for, plaintiff moved for a discovery of
the receipts given to such corporation for
said rent, which he alleged were in the pos-
session of defendant, who had been one
of its officers. Defendant denied that
such receipts were in his possession, but ad-
mitted that certain receipts of that charac-
ter were in the possession of his attorney.
Held, That plaintiff was not entitled to a
discovery of said receipts.-Douglas v.
Delano, 85.

2. The administrator of a deceased partner is
entitled to a discovery and inspection of
partnership books, etc., with leave to take
copies, for the purpose of framing a com-
plaint for an accounting and settlement of

the partnership affairs, notwithstanding the
articles of agreement provide that the sur-
vivors should carry on the business until
the expiration of the time limited for the
existence of partnership, and that all the
property should remain and continue in the
business; nor is it necessary to aver that
the books contain entries showing any in-
debtedness to the deceased or show any
violation of the partnership agreement or
disclose any matters in respect to which a
discovery is sought.-Newman v. Newman
et al., 283.

3. If a co-administrator, being also a surviv-
ing partner, refuses to join in such an action
he may be made a defendant both as admin-
istrator and individually.-Id.

4. In an action against the principal and
sureties on a tax collector's bond, to re-
cover the amount of taxes collected and
not paid over, the plaintiff is entitled to a
discovery and inspection of the assessment
roll and warrant in the possession of the
principal, for the purpose of ascertaining
the amount collected, and to enable plain-
tiff to frame its complaint, etc.—The Board
of Education of Union School No. 1 v. King
et al.,
494.

See CREDITORS' ACTION.

DIVORCE.

1, An order directing the payment of alimony
by the husband to the wife cannot be made
after the entry of a decree of separation
making no provision therefor; but pro-
vision for the support of children may be
made, under 2 R. S., 147, § 59.-Erkenbrach
v. Erkenbrach, 4.

2. Under 59, tit. 1, ch. 8, part 2 R. S. the
court may, after the entry of a decree of
divorce, make an allowance for the support
and education of the children of the mar-
riage. — Washburn v. Catlin, 12.

3. The sums directed by a decree of divorce
to be paid to plaintiff for her support and
maintenance may be reached by her credit-
ors on supplementary proceedings and pay-
ment thereof by the defendant to a receiver
appointed in such proceedings discharges
his liability therefor.-Stevenson v. Steven-
son, 182.

See CONTEMPT.

DOGS.

See ANIMALS.
DOMICIL.

1. Intention alone is not sufficient to change
or create a domicil; the fact of residence
must concur with the intent.-Huntley v.
Baker, 226.

DRAFTS.

See BANKS, 1–5.

DRAINAGE.

1. The provisions of § 12 of Chap. 888, Laws
of 1869, as amended in 1871 and 1881, are
to be construed as making the order of the
County Court final upon matters of fact,
but liable to appeal upon any question of
law arising upon the whole act or upon any
proceeding necessarily affecting the order.
—In re petition of Swan, 325.

See EASEMENT, 8.

EASEMENT.

1. D. owned a tract including plaintiff's lot
and the land now known as Garden street.
In D.'s deed of plaintiff's lot it was described
as abutting on said street. Held, That D.'s
grantee acquired an easement in the street,
independent of the public right to use it,
which could be taken from him only by the
exercise of the right of eminent domain.
Plaintiff is entitled to an injunction re-
straining an interference with his said
right, and to recover damages suffered
thereby.-Fanning v. Osborne et al., 113.

2. Plaintiff's grantor purchased a piece of land
of defendant, relying on his representation
that a strip of land along the south
bounds was a street and should be opened
and continued as such. The deed contained
no reference to the street, but it was there-
after opened by defendant. Held, That de-
fendant, by opening the street in pursuance
of his agreement, appropriated the space as
a way appurtenant to the premises, and
could not subsequently recall the dedica-
tion.-Newman v. Nellis, 291.

3. Such way, being an apparent easement,
passed to plaintiff by a deed conveying the
premises by metes and bounds, although
the word appurtenances was not used. ·
Id.

4. When there has been an easement with a
servient and dominant tenement, and the
ownership of both tenements has been
vested in the same person, and the owner-
ship is again severed by the conveyance of
the servient tenement without any reference
whatever being made to the servitude pre-
viously existing, but the property is con-
veyed in the same manner and by the same
terms as though the servitude had no ex-
istence, the grantee takes such property
unencumbered by the easement.-Scrymser
v. Phelps, 314.

5. Where various persons threaten to float
large numbers of logs down a non-navigable
stream and to use its banks while doing so,
claiming the right to do so whenever they
chose, the owner of lands through which
the stream flows may maintain an action
to quiet his title and to enjoin the threat-
ened injury, and all such persons may be
united as parties defendant.-Meyer v.
Philips et al., 326.