Imágenes de páginas
PDF
EPUB
[blocks in formation]

Where an objection to the jurisdiction of a County Court is put upon the ground that, by statute, the court has no power to hear the action and where the defect complained of does not appear upon the face of the complaint, the objection may properly be taken by answer; and such answer, though setting up other defences, is not a waiver of the defect.

The action was begun in the County Court of Albany county, where plaintiff at first succeeded, but the County Judge set aside the verdict. The articles of association of defendant located its principal place of business in the county of New York, The summons was served in that county. The answer set up these facts and averred that the County Court had no jurisdiction under Code, $$ 340 and 341. It then set up other defences. Upon a motion for a new trial the County Judge held with defendant.

B. C. Heyward, for applt. P. B. McLennan, for respt. Held, That the County Court had no jurisdiction. The appel lant urges that the appearance of defendant is a waiver of the objection to the jurisdiction. We think not. The question is not one simply of jurisdiction of the person of defendant. It concerns also the limitation of the power of the Court. See remarks of Judge

Gardiner in Burkle v. Eckhart, 3 N. Y., 132, at p. 137.

Order affirmed, with costs.

Opinion by Learned, P. J.; Bockes, J., concurs and cites 90 N. Y., 526, 530 and 53 id., 450; Landon, J., concurs.

REFERENCE.

N.Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Leonard Y. Gardiner et al., respts., v. Gabriel Schwab et al., applts.

Decided Jan., 1885.

Where a referee had made his report, although judgment has not been entered upon it, he has no power to make additional findings. So held, where the referee had found the facts in question but, by inadvertence, had omitted them from his report. The facts were material and necessary to support the conclusions of law.

In this case the referee made a report in favor of plaintiff. By inadvertence he omitted from his report certain facts which he found (and about which there was really no contest), and which it is claimed are necessary to support the conclusions of law. No judgment had been entered. This is an appeal from an order remitting the report to the referee with directions that he add the omitted findings.

Theodore H. Swift, for applt. W. L. Van Denbergh, for respt. Held, That the order was improper. The referee had made his report, had delivered it to the successful party and that party had served a copy on the defeated

Rule

party. We think he cannot now make further findings even though the omission be accidental. 32; Code, § 1023; 84 N. Y., 284; 2 N. Y. Civ. Pro., 185; 24 Hun, 224.

Opinion by Learned, P. J.; Bockes, J., concurs; Landon, J. not acting.

WILLS. EXECUTORS.

Order reversed, with costs, and N. Y. SUPREME COURT. GENERAL motion denied, with costs.

Opinion by Learned, P. J.; Bockes and Landon, JJ., concur.

COSTS.

N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT.

Charles Furman et al., respts. v. Felix Cunningham, applt.

Decided Jan., 1885.

Under Ch. 237, Laws of 1878, prescribing a penalty for bringing skimmed milk to a cheese factory, to be sued for by the persons defrauded, the plaintiffs are entitled to full costs although the penalty recovered be less than fifty dollars.

Under the above statute plaintiffs, who were customers of the cheese factory, recovered a penalty of $40, and were given costs. From the order defendant appeals.

Burke & Kilburn, for applt. Gilbert & Kellas, for respts. Held, That plaintiffs were entitled to costs. The statute expressly says "with costs of suit." Section 3250 of the Code states that this title (title 1 of chapter 21) does not affect any provisions of this act or of any other statute whereby the award of costs is specially regulated in a particular case. "The award of costs is specially regulated" by the law of

1878.

Order affirmed, with costs.

TERM. SECOND DEPT.

John W. Mehl v. John H. Hilliker et al, exrs. et al.

Decided Dec., 1884.

Executors who are directed by the will of their testator to sell all his real and personal estate as soon as convenient after his death, "and when in their judgment they shall consider it most advantageous," are not independent of a Court of Equity. Where the testator gave to his wife "$9,100 absolutely, in lieu of dower," and specific sums were given to other persons, a subsequent clause that if a sufficient sum was not realized from a sale of his real and personal estate to pay all of the said sums, then my said legatees to be paid their shares in the same ratio as hereinbefore bequeathed, and should there be a larger sum realized than the total amount of legacies, then the surplus to be applied to each share in the same proportion; Held, that it was not intended to abate the legacy of the wife, in case of land selling for less than a given sum, but such legacy was an absolute gift to free the land and estate, if accepted.

This was an action to construe the will of Adam Mehl, who died in Jan., 1880. Letters testamentary were issued to the executors April, 1880. The testator had about $80,000 in real and personal estate. The personal estate consisted in part of a milk route, cows and wagons connected with the business. The executors were directed by the will to sell testator's real and personal estate so soon as convenient after his death, and when in their judgment it would

be most advantageous. The testa- | proven without any inventory ever tor gave his wife "$9,100, abso- having been filed, and the receipt lutely, in lieu of dower," and of the income without accounting specified sums to other persons, to any one for over three years, and by a subsequent clause direc- fully justifies the action of the ted that said legatees be paid their court in respect to the direction shares in the same ratio as therein for a sale at once. before bequeathed in any increase or decrease on the sale of the real and personal estate from the total amount of said legacies.

The executors have not sold or attempted to sell the property, but conducted the milk business at the same place that testator did in his life time. No inventory has been filed and there was no accounting to any one for the income for over three years. The court directed a sale at once. The principal question presented by this appeal is whether a Court of Equity had

Also held, That the words "my said legatees" did not include the legacy to the wife. Her legacy was given for value. She could take the sum offered or go to the land for her right in that. It was intended as an absolute gift in lieu of dower, and was to be paid to free the land and estate if accepted. Judgment modified accordingly. Opinion by Barnard, P. J. ; Pratt and Dykman, JJ., concur.

ATTACHMENT.

power to direct or control the N. Y. SUPREME COURT. GENERAL

executors under such provisions of the will in making a sale, and whether the words "my said legatees" includes the legacy to

the wife.

Winchester Britton, for applt. Charles S. Simpkins, for respt. Held, That the use of the words that the sale should be made by the executors as soon as convenient after testator's death, "and when in their judgment they shall consider most advantageous," did not have the effect to render them independent of the Court of Chancery. There are trusts in the will which are always guarded with jealous care by Courts of Equity, and the judgment of a trustee is always subject to control. The use of the property in the manner Vol. 20.-No. 18a,

TERM. FIFTH DEPT.

Salie Frankel, respt., v. Ferdinand Hays, et al., applts.

Decided Jan., 1885.

Where an affidavit for an attachment is properly made by an agent who personally transacted the particular business with defendant and is acquainted with all the facts, a statement that the amount alleged is due "over and above all set offs, etc., which defendant has against him," is sufficient.

The presumption is that the date of a note

was the day of its delivery.

An affidavit stated that defendants had a stock of goods two and a half years ago worth $40,000, and borrowed during that time $45,000; that they admitted to deponent that they have been doing a not unprosperous business; that their branch stores have been making money instead of losing; that their stock has greatly diminished in quantity and value, and they say they cannot account for it, and have nothing to show for

it; that they are insolvent; and that one of defendants proposed a scheme for the purpose of defrauding certain creditors of the firm. Held, sufficient, in the absence of denial or explanation. The affidavit need

not state that an action has been commenced.

Appeal from order denying motion to dissolve an attachment. The motion was made upon the papers upon which the attachment was granted.

The affidavits were made by Ignatz Thalheimer, who described himself as the person who transacts the business of plaintiff, loaned the money to defendant, and who has personal knowledge of all the facts, and that plaintiff has no personal knowledge in regard to any of the matters alleged. The indebtedness arose upon promissory notes given for money loaned, which were set out in the affidavit, followed by the statement that plaintiff "has a good cause of action upon each and every of the notes before mentioned, and to recover the full amount of money herein before mentioned, over and above all set offs, discounts, and counterclaims which the defendants have against her."

It was objected that this part of the affidavit should be made by plaintiff herself, and that the omission of the words "known to her" is fatal.

James Breck Perkins, for applts. J. Q. Van Voorhis, for respt. Held, That the objection made was not tenable. 27 Hun, 517.

The affidavit stated that plaintiff loaned the money on the 4th day

of August, 1881, and took defendants' promissory notes as security, payable one day after date to the order of plaintiff.

It was objected that the date of the note does not appear, that there was no presumption that it bore a date at or before its delivery, and there can be no inference that the note became due before the affidavit was made, Aug. 7, 1884.

Held, That as in the usual course of business a note is dated, the presumption is that it was delivered on the day of its date, if it is dated, and if it bears no date the converse presumption arises that its true date is the day of its delivery. Edwards on Bills, 150; 32 Ind., 375. The date of a bill is its delivery, and where there is no date it operates from delivery. 2 Chitty, 300.

The next objection made to the affidavits was, that they did not show that defendants have disposed of or secreted, or are about to dispose of or secrete their property to defraud creditors.

The statement was substantially that defendants, two and a half years ago, had a stock of goods worth $40,000; that they borrowed during that time $45,000, of which $20,000 was borrowed from plaintiff; that they have admitted to deponent that they have been doing a not unprosperous business; that their various branch stores have been

making, and not losing money; that the stock of goods has greatly diminished in quantity and value, and that they have no way to account for it and nothing to show for it; that they are insolvent;

and that being so, one of the partners has proposed to go into a scheme for the purpose of defrauding certain of the creditors of the firm. These facts were not denied or explained.

Held, sufficient, in the absence of denial or explanation. They show that one of the firm at least has the intent to cheat his creditors, and that the goods have disappeared at a more rapid rate than could be accounted for by their legitimate business. This last fact alone, unexplained, was held sufficient to uphold an attachment in 14 W. Dig., 285. The Court held that those facts were enough to put defendants to their answer, and in the absence of opposing proof were enough to sustain the attachment. This case is plainer than that case, and the inference of fraud is stronger. As long as defendants do not choose to deny or explain the facts shown by the plaintiff, they must be subject to the inferences fairly to be drawn from those facts, and those inferences require the Court to assume the existence of fraud as charged.

It was objected that the affidavit does not show that an action has been commenced.

Held, that the fact must exist, but it need not be stated in the affidavits.

[blocks in formation]

Appeal from order denying motion to vacate a judgment of foreclosure and sale, as to Antoinette W. Sherman, on the ground that the court never obtained jurisdiction. No summons or any other notice was served on the appellant. The husband of appellant appeared in the action by attorney, and the same attorney appeared for appellant, but he was never retained or authorized to appear for her. She had no knowledge of such appearance, or of any of the proceedings, until after the sale. Her interest in the property was her inchoate right of dower in the equity of redemption which was owned by her husband. There was no averment that the attorney is irresponsible.

L. E. Gilbert, for applt.
E. A. Brewster, for respt.
Held, That appellant was not

Order affirmed on opinion of bound by the judgment. In the Rumsey, J., at Special Term. Haight, Bradley, Angle and Childs, JJ., concur.

case of Ferguson v. Crawford, 86 N. Y., 609, the Court of Appeals beld that a forged notice of appearance by an attorney did not give jurisdiction of the person of the defendant, although it was recited in the judgment that the

.

« AnteriorContinuar »