may be thrown from it upon adjoining lots and made to flow upon them in a different way and larger quantities than before, without being liable in damages therefor. He may not collect such water into a chan- nel and cast it upon his neighbor's lot, but he is not bound, for his neighbor's protec- tion,' to collect the surface water which falls upon his lot and lead it into a sewer.- Saal et al. v. Abeles, 528.
1. Defendant had been elected in 1881 excise commissioner of a town for three years, but failed to file his bond. He was after- ward, in 1882, appointed such commis- sioner, until the next election, by the justices of the peace, in an instrument which recited that a vacancy existed, and defendant gave a bond thereupon, which recited that his appointment was to fill a vacancy. At the next election, in 1883, defendant and relator were candidates for the office and relator was elected. De- fendant now claims to hold under his election in 1881. Held, That if defend- ant's failure to file a bond did not create a vacancy it was still ground for this action by the people in the nature of a quo war- ranto and to oust defendant.-The People ex rel. Cowles v. Ferguson, 276.
2. The fine fixed by § 1956 of the Code to be imposed on one who usurps an office can only be imposed by the court; a re- feree has no power.-Id.
3. Where the term of an executive or ad- ministrative office is declared by statute to be for one or more years from a designated day the language must be construed to mean until the hour of the same day at
which the successor becomes duly qualified to assume its powers.-The People ex rel. Wood v. Lacombe, 353.
4. When the term of an officer is declared by statute to be two years, commencing on the first day of January next after his elec- tion, and a subsequent statute is passed declaring that the term of his successor shall commence at noon on the first day of January succeeding the latter's election, this subsequent statute has the effect of de- fining the hour of the expiration of the term of the existing officer as well as the commencement of that of his successor.-
5. The provisions of 1 R. S., Chap. V., Title 6, Art. 1, Sec. 9, familiarly known as the "Holding Over Act," apply to the office of Mayor of the city of New York, and con- sequently no vacancy would accrue in that office by the expiration of a term.-Id.
6. Section 2143 of Chap. 410, Laws of 1882, declaring that said act should not create a
vacancy in any office, prevented the crea- tion of a vacancy in the office of Mayor of the city of New York, by reason of the fix- ing by said act of the hour at which the term of the mayor of said city elected under such act should commence.-Id.
7. The only vacancy in the office of Mayor of the city of New York which the presi- dent of the board of aldermen is em- powered to fill by § 32 of Chap. 410, Laws of 1882, is one that occurs during an un- expired term by death, resignation, or the other causes which produce a vacancy according to the statute defining vacancies. -Id.
8. Section 32, of Chap. 410, Laws of 1882, empowering the president of the board of aldermen of New York City to fill a vacan- cy in the office of mayor does not in any event constitute him the mayor of the city. but, at most only empowers him to act as mayor; and the power given to the mayor by Chap. 43, Laws of 1884, of appointment to office without confirmation by the alder- men cannot be exercised by a president of the board of aldermen, elected before the passage of said act, while acting as mayor.-ld.
1. The prohibition contained in § 6 of Chap. 202, Laws of 1884, is not confined to cases of deception in the manufacture and sale of the article prohibited, but is absolute.- The People v. McGann, 420.
2. Said section is not unconstitutional.-Id.
1. In a suit by the trustees to foreclose a mortgage given to secure railway bonds issued for the construction of the road, petitioner made application to be made a party. Petition stated that the construc- tion contract was made with T. on behalf of himself and petitioner; that petitioner sold $50,000 worth of the bonds, personally guaranteed their payment, and expended the proceeds in the enterprise. That T. & B. conspired to defraud to him. T. trans- ferred the contract to B., who completed a portion of the road, got possession of all the bonds, including the bonds guaranteed by petitioner, and also 3,000 shares of the stock. That petitioner is now being pur- sued at law by sub-contractors with whom he and T. had made contracts. That T. & B. have been and now are operating the railway, and have made sufficient money to pay the interest on said bonds; that there is no necessity for the foreclosure, but that T. & B. are causing the foreclosure with a view of defrauding petitioner of his interest in the contract and bonds, and in effect to make him liable upon his guaranty of said
bonds. Held, That petitioner should be made a party for the protection of his in- terests.-The Mercantile Trust Co. v. The Rochester & Ont. Belt R. Co., 508.
See CONTRACT, 22; DISCOVERY, 3; EASE- MENT, 5; EXCISE, 8; MORTGAGE, 6, 14; SLANDER, 4.
1. A widow to whom the premises had been devised for her life or while she remained single brought action for partition against the remainder-men and partition was de- creed. Held, That if she was not author- ized to maintain the action because not a joint tenant or tenant in common the de- fect was not jurisdictional, and that the error in awarding a decree, if any, should have been corrected on appeal and could not be questioned or the decree impeached collaterally.-Cromwell v. Hull et al., 53.
2. When one of several tenants in common is in actual possession his possession will, in the absence of any act of ouster on his part, inure to the benefit of all, and any one of them can maintain an action for partition. Consequently, it is not necessary to allege that the plaintiff was or had ever been in possession.-Wainman v. Hampton et al.,
for debts of the company in the absence of proof that plaintiffs or other dealers with the company saw or knew of this sign, or that any reliance was placed on it when the debt was incurred.-Id.
3. Entries in the books of a firm made years after the retirement of a former partner have no more force or weight against such partner than the verbal declarations of the members of the new firm.-Pringle v. Let- erich, 90.
4. Mere naked declarations of the remaining members of a firm, not connected with any dealings upon which a dealer with the firm takes action, and in which he reposes no confidence, cannot be used against a part- ner who has retired from the firm.-Id. 5. Defendant, to prove the proceedings in bankruptcy of the remaining members of the firm, put in evidence their petition, with schedule attached. Held, That this did not make the schedule evidence against him of the facts contained therein.-Id.
6. A partnership debt, although evidenced by the individual note of a member of the firm, is equitably payable out of the part- nership property.-McCarthy et al. v. Filts et al., 225.
7. Where one partner sells his interest to the other, who continues the business in the firm name, debts contracted for goods sold to the house afterwards are, as against other creditors, individual debts of the remaining partner.-Id.
8. A mortgage given by a special partner to raise money with which to pay his indi- vidual debts when either he or the firm is insolvent is not void as preferential, under 1 R. S., 767, § 21.-George et al. v. Grant et al., 265.
9. As to whether an assignment, transfer or mortgage by a general or special partner of his individual property to secure his in- dividual debts made at a time when either he or the firm is insolvent is prohibited under that section, quære.—ld.
10. On the formation of a limited partner ship the usual certificate was filed, but the special partner paid in his share of the capital by check, which was afterwards paid. Held, That the misstatement ren- dered the special partner liable as a general one for the firm debts, but that the part- nership was in form a limited one and liable for the firm debts.-Durant v. Abend- roth, 356.
11. One of the general partners instituted proceedings for voluntary bankruptcy of the firm, to which the special partner was not a party, and the firm was duly adjudged bankrupt. Held, That the decree was not conclusive as to any fact in a subsequent proceeding between the creditors and the
special partner, and that the fact that the creditors proved their claims and accepted a dividend in the bankruptcy proceedings did not estop them from litigating as against the special partner any fact liti gated or involved in such proceedings.-Id. 12. There is nothing in the limited partner- ship act which prevents the change of an existing partnership into a limited one, or which prohibits a limited partnership from purchasing in good faith the stock of a for- mer firm, or from paying for it out of cap- ital contributed by the special partner, although the latter is thereby placed in substantially the same position as if he originally had put in the stock as capital instead of money.-The Metropolitan Nat'l Bk. v. Sirret, 362.
13. The word "annually" in § 15 of the act has the same meaning as per annum," and the annual interest may be paid quarterly or at any other stated period.— Id.
14. The act does not prohibit the special part- ner from assuming his proportion of the losses.-ld.
15. The publication of a copy of the certifi- cate filed, which states all the facts required by 4, is sufficient to satisfy the require- ments of 9, and a change of the name of a newspaper in which the publication is directed to be made, after such publication is commenced, will not affect its validity. -Id.
PARTY WALL.
See DEEDS, 7. PATENTS.
See FIRE INSURANCE, 19-21.
PENAL CODE.
See BLACKMAIL, 3; SUNDAY.
1. An indictment charging the defendant with having committed the crime of perjury by giving material evidence in an action be- tween certain parties for a limited divorce contains a sufficient statement of the nature of the action in which it is claimed that the perjury was committed.-The People v. Grimshaw, 116.
2. A person is guilty of perjury who swears falsely as to a fact material to a defence set up in an action, although such defence would fail without proof of other facts.- Id.
3. In a prosecution for perjury the law does not exact positive proof in addition to that
given by the prosecuting witness of the fai- sity of the evidence, but all that it requires is that there should be additional evidence strongly corroborative of that given by the prosecuting witness.-Id.
4. Chap. 251 of the Laws of 1875 applies to the city of New York, and the Board of Aldermen are empowered thereby to make the contract provided for therein.-The People v. Bowe, 515.
5. A jailor who falsely verifies a list or state- ment of the persons confined in his jail on civil process who have made oath of their inability to support themselves during their imprisonment, which list or statement is required by law to be made and verified in order to entitle the sheriff to recover com- pensation from the county for their support and maintenance in accordance with a con- tract made by him, is guilty of perjury, and he cannot protect himself against criminal liability by alleging his incom- petency to make such verification. -Id.
5. In an action on a promissory note in the usual form made by defendant to plaintiff the defendant, among other allegations, answered that he had made and delivered the note as trustee for a married woman under the laws of Virginia, all of which plaintiff knew, and under an arrangement that the note should be paid out of a sum set apart from the married woman's prop- erty, as plaintiff also well knew, and that said note had been paid to that extent. On motion the court refused to strike out such allegations from the answer. Held, No error.-Thierry v. Crawford, 319.
6. The Code of Civ. Pro. does not authorize a denial in the form "He denied each and every allegation not herein before admitted or denied."-Id.
7. The complaint alleged that the defendant H. requested the plaintiff's assignor to fill an order of the defendant V. for certain merchandise, "he, said H., guaranteeing or promising payment therefor." Held, On a motion for that purpose, that the complaint should be made more definite and certain by requiring plaintiff to elect to sue the defendant H. either as a promissor or as a guarantor.-Partridge v. Haley, 320.
8. In an action to recover for injuries to plain- tiff's wife, caused by her falling into an excavation in a public street made by de- fendants and left unguarded, the answer alleged that the injuries alleged were caused or contributed to by the injured party; that defendants had settled said claim with plaintiff, and then denied "each and every other allegation in said com- plaint contained not hereinbefore specifi- cally admitted, qualified or denied." Held, That the material allegations of the com- plaint were excepted from the general denial.-Clark v. Dillon et al., 329.
12. The answer to a complaint on promis- sory notes alleged to have been made in Boston, Mass., set forth that defendant, at the time of giving them, was engaged in an illegitimate business in Boston, known as the 'bucket shop" business, consisting of the purchase and sale of stocks in fractional quantities, on margins, without an actual delivery at any time; that plaintiff was a customer of defendant therein, and the transactions resulting in the giving of the notes were, to plaintiff's knowledge, gam- bling transactions therein, and illegal and void; that the notes were without other consideration, and therefore illegal and void and plaintiff knew it, &c. Held, On demurrer, that though the defense be in-
artistically drawn, and the statements im properly made, yet they must be taken as admitted allegations of fact, and as such are sufficient; that defendant must show on the trial that the transactions were void in Massachusetts; that though under the statutes in regard to betting and gaming plaintiff may recover his money, this he can do only under the statutes, and by disaffirm- ing the contracts.-Id.
13. In an action to recover possession of real estate where the title relied upon by the plaintiff is derived from a deceased owner as heir at law, and the defense set up is that such owner made a will devising and disposing of the property in question, a fur- ther allegation that the said will had been presented to the Surrogate for probate and admitted to probate by him with a detailed statement of the proceedings before him for that purpose, with copies of the will and papers used in the probate proceedings an- nexed as exhibits, will not be stricken out on motion as irrelevant and redundant.- Watson v. Phyfe et al., 372.
14. When an answer sets up new matter by way of affirmative defense of such a char- acter that the intelligent trial of the action requires that the defendant should be in- formed whether the plaintiff intends to deny such new matter or expected to avoid its effect in some other way, and that with- out a reply the defendant might very well De subjected to surprise entitling him to avoid a determination of the action which the facts of the case would require to be otherwise disposed of, the plaintiff will be ordered to reply to such new matter.- Id.
15. Where a complaint states a reason for equitable relief upon the ground of mutual mistake, and also upon the ground of fraud, and upon the trial no fraud is shown, the action may be maintained, provided the count for mistake is not dependent upon the allegation of fraud, is sufficient in itself and is supported by proof.-Russell v. Brownell, 504.
See ASSESSMENTS, 7; CLOUD ON TITLE, 3-5; CREDITORS' ACTION; DEEDS, 8; FIRE IN- SURANCE, 4; HIGHWAYS, 5; MUNICIPAL CORPORATIONS, 3; NEGLIGENCE, 26; PAR- TITION, 2; RAILROADS, 1.
1. Sec. 5, of Chap. 100, Laws of 1879, con- fers authority upon the Commissioners to determine when the state of the funds or the public interest require or permit the suspension of a police officer, and their de termination involves the exercise of discre- tion and cannot be interfered with or re- viewed by this Court.-The People ex rel. Woods v. Police Com'rs., 552.
POOR. 1. An attorney's claim for services rendered in prosecuting a bastardy case is not one "relating to the relief, support or transpor- tation of the poor" within the meaning of the statute giving to superintendents of the poor power to audit accounts. Such claim is a county charge and subject to the audit of the Board of Supervisors.-Neary v. Robinson et al., 388.
See DEEDS, 13; EXECUTORS, 1; MORTGAGE, 13; WILLS, 7-10, 12.
1. Relief cannot be granted when it is incon- sistent with the case made by the com- plaint. The Third Nat'l. Bk. of Buffalo. v. Cornes et al. 30.
2. Relief will be granted, although not asked for in terms by the complaint, when it is clearly equitable and within the power of the Court-Simson et al. v. Chadwick, 35. 3. A general objection to a question which is proper in part cannot be sustained.-Id.
4. If a party fails to ask to go to the jury upon certain questions, he cannot object upon appeal that there are questions that should have been submitted to the jury.-Atkinson v. Stafford, 49.
5. If the Court inadvertently mistakes the facts in charging the jury, counsel must call its attention thereto at the time.—Id.
6. When a plaintiff is taken by surprise by the production of evidence proving a defence pleaded, the truth or falsity of which he might have ascertained by communicating with a third person in a foreign state, he should withdraw a juror and thus arrest the trial, and not proceed and take the chances of success, and then move for a new trial on the ground of surprise and newly discovered evidence.-Soule et al. v. Oosterhoudt et al., 67.
7. To justify the reversal of the determination of a trial court upon questions of fact it must appear that the findings of fact were against the weight of evidence or that the proofs so clearly preponderated in favor of a contrary conclusion that it is reasonably certain that the trial court erred.-Baird v. The Mayor, &c., of N. Y., 100.
8. When a plaintiff's complaint is dismissed at the close of his evidence upon the ground that such evidence is insufficient to consti- tute a cause of action, the judgment cannot be sustained upon appeal if any evidence material to sustain the issues on the part of the plaintiff was improperly excluded dur ing the trial.--Selover v. Chaffee, 115.
9. A justice out of court has no power to make an order striking exceptions to the findings and refusals to find of the court in an equity case from the judgment-roll and case on appeal as filed.-Pettit v. Pettit, 154. 10. When the judgment-roll and case on ap- peal has been filed, a motion to correct it should be made to the Special or General Term.-Id.
11. It is proper for the clerk, to whom written exceptions to the findings and refusals to find of the court in an equity case are pre- sented, after the filing of the judgment-roll within the time specified for that purpose by 994 of the Code of Civil Procedure, to file the same and annex them to the judgment roll as part of his return on ap- peal; and it is not necessary that such written exceptions should be made part of the case to be passed upon on settlement by the trial judge.-Id.
12. The fact that a complaint alleges facts not essential for plaintiff to aver or prove, and that the same are denied by the answer, does not deprive the defendant of the affirmative if he is otherwise entitled to it.-- Phillips v. Brown, 155.
13. When a party moves for nonsuit, or rests his defence on certain propositions of law, and his motion is denied or the law is de- cided against him, and he does not ask to go to the jury, he waives his right to go to the jury and cannot on appeal urge that there were questions for the jury.-King v. The U. S. Life Ins. Co., 203.
14. Where there is a question of fact for the consideration of the court, a motion for nonsuit should be denied.-Grant v. Keef, 262.
15. The General Term has power to amend its order or judgment so as to make it declare the truth, notwithstanding an appeal has been taken therefrom.-The Nat'l City Bk. v. The N. Y. Gold Exchange Bk., 311.
16. The Code has not provided for a motion for a new trial upon a case and exceptions when the case has been tried by the court.-- Scrymser v. Phelps, 314.
17. County courts are authorized to grant new trials on their minutes in cases originating in justices' courts and retried in county courts.-Hinman v. Stilwell, 401.
18. Except in a plain case a motion for a new trial should be made on a case.-Id.
19. The Supreme Court has no power to set aside a judgment entered on a remittitur of the Court of Appeals.-Clark v. Mackin et al., 461.
20. Where a stipulation provided that defend- ant might appeal and interpose a general denial and the answer as served contained
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