PAGE. APPEAL- To County Court-when security on, jurisdictional Code, SS 352–355 — chap. 392 of 1863.] 1. On appeal from a Justice's Court, before the act of 1863 (chap. 392), security was only required when a stay of execution was desired; since that act, where, by the terms of section 352, the appellant is entitled to a new trial, security is required to perfect such appeal, and give jurisdiction thereon to the County Court. KUNTZ v. LICHT, 14 2. Appealable order.] A refusal to dismiss such appeal when security has not been filed affects a substantial right, and the order refusing it is appealable. Id. ARREST - Pending suit — undertaking — liability of sureties on, where one only of two defendants can be arrested on execution.] 1. Two defendants having been arrested, in an action brought against them by the plaintiff, the defendants in this action executed an undertaking to procure their discharge. Subsequently, upon an execution issued against their persons upon a judgment recovered in the first action, the sheriff arrested one and returned as to the other non est inventus. In an action upon the undertaking, held, that the arrest and imprisonment of one defendant did not relieve the sureties to the undertaking from their liability for the escape of the other. 2. CROUSE. PADDOCK... Evidence of prior arrests—not proper to impeach character.] Upon an indictment for forgery the prisoner, on his examination in his own behalf, was asked, with a view of impeaching his character, "How many times have you been arrested?" Held, that the question was improper, as the mere fact of his arrest had no tendency to impeach his character in any particular. BROWN . PEOPLE... - ...... 630 502 ASSAULT AND BATTERY — Action for — Code, § 304 — costs — when title to real property involved.] 1. In an action for an assault and battery, the defense was (1) general denial, (2) son assault demesne, (3) justification in defense of defendant's real property. The plaintiff recovered a verdict of six cents, and having obtained a certificate from the county judge that the title to real property was put in issue by the pleadings and came in question upon the trial, he taxed full costs. Held, that this was proper, and that a motion to strike from the judgment all costs in excess of six cents was properly denied. LILLIS v. O'CONNER. .... 280 2. -County judge's certificate, conclusive.] Such certificate is conclusive upon the taxing officer, to show that the title to land came in question upon the trial. Id. ASSESSMENT · One resolution providing for two-chapter 818 of 1868chapter 245 of 1875-regularity of proceedings under.] 1. The board of trustees of the village of Portchester acted upon two petitions, one for grading Hanseco and the other for grading Irving avenue. There was but one resolution which, though it embraced both streets, yet, in legal effect, established separate assessment districts for each, and the subsequent proceedings were conducted thereunder. Held, that the proceedings were not open to the objection that there was only one proceeding for the grading of both streets. MERRITT V. VILLAGE OF PORTCHESTER.... 2. Bids-time of opening.] A requirement in a charter that bids shall be opened on the day mentioned in the notice or on the adjourned day, and that the trustees shall "then" determine whose is the most favorable, does not restrict them to an instant determination; they have all the time requisite for a correct conclusion, the word “ "then" being used in the sense of soon afterward" or "immediately." Id. Where a 3. Report containing charges--effect of its confirmation.] charter requires the trustees to determine upon and fix, but specifies no form in which the trustees are to express their decision as to the proper compensation for work done, a confirmation of the report containing the charges for expenses, counsel fees, etc., is a sufficient compliance with the provisions of the charter. Id. 4. Notice-publication of — objections.] A statute providing that before completing and signing the report, the commissioners must publish, once in each week for two weeks successively, a notice of a time and place, 40 ASSESSMENT - Continued. when and where the parties interested can be heard, held, to mean that there shall be two publications, one in one week, and the other in the next week, and not that two weeks must elapse between the first publication and the day designated for the hearing. Held, further, that a notice requiring the objections to be in writing was invalid, the statute conferring no authority that such hearing shall be restricted to written objections, and that this objection by the plaintiffs would have been fatal to the proceedings had they disregarded the notice. But having appeared before the commissioners pursuant thereto and had the benefit of a hearing, they thereby waived all defects therein. Id. 5. Action to set aside as illegal defects in must not be such as would appear in proceedings to enforce.] In an action to vacate and set aside an assessment as illegal, it is not enough to allege that the proceedings, although in fact invalid, appear on their face to be regular, but to sustain the action it must appear that the defects alleged are such as would not necessarily appear in proceedings to enforce the lien of the assessment. BOYLE v. CITY OF BROOKLYN. PAGE. 32 6. When vacated under chapter 580 of 1872.] Under the provisions of chapter 580 of 1872, providing that no assessment shall be set asido except in cases in which fraud is shown, a mere defect of authority in the officer contracting for the work is not sufficient to authorize the court to vacate the assessment. Accordingly, upon an application to vacate an assessment on the ground that the commissioner of public works had no authority to make the contract for the work, without a previous resolution of the common council, held, that whether or not he had authority so to do was immaterial, as a mere defect therein would not authorize the court to vacate the assessment. MATTER OF N. Y. PROT. EPIS. PUBLIC SCHOOL... 457 .... 7. Payment of, under protest - Voluntary payment — right to recover amount paid.] The plaintiff received a notice from the collector of the city of New York, stating that an assessment had been made on a lot owned by him, payment of which was expected to be made on or before July twentyseventh, and that unless paid before that day interest would be charged at the rate of seven per cent from the date of confirmation. Plaintiff saw the collector, told him the matter was in litigation and that if he paid, it would be under protest; the collector said, “you can do as you like," whereupon plaintiff paid the amount. Subsequently, upon a petition filed by the plaintiff and others, the assessment was vacated. In an action brought by him to recover back the amount so paid, held, that as the payment was made voluntarily and with full knowledge of all the facts, the action could not be maintained. PEYSER v. MAYOR. 8. -Purchase of property subsequent to confirmation — presumed to have been made subject to- Party aggrieved - who is, under chap. 338 of 1858.] Where a person moves, under chapter 338 of 1858, to vacate an assessment upon property purchased by him subsequent to the confirmation of the assessment, it rests upon him to show that he is aggrieved thereby. In the absence of any evidence on this point, it will be presumed that he purchased subject to the assessment, and that the same formed part of the consideration given by him for the property. MATTER OF MOORE. Irregularity in, cured by legislative act-Law directing that property defectively assessed for local improvement be taxed to the amount of the assessment-validity of - Constitution, art. 7, § 13- - requiring tax and object to be stated-relates solely to State finances, and does not govern assessments for local improvements - chap. 297 of 1861-chap. 383 of 1869-construction of. See GUEST . CITY OF BROOKLYN.. Certiorari to review — where property is generally assessed at one-third its value, in violation of the assessors' duty —court will not reduce assessment of property assessed at a greater rate, to same proportion. 413 513 97 See PEOPLE EX REL. R., W. AND O. R. R. Co. v. DIXON... ..... 178 Injunction — restraining city from confirming-no defense against contractor entitled to his pay on the confirmation, unless diligence is shown to remove it. See BOWERY NAT. BANK v. MAYOR... 224 PAGE. ASSESSORS- Acts of, reviewable by County Court. See MATTER OF N. Y. CATHOLIC PROTECTORY.. ASSETS-Of corporation on dissolution, because of disagreement of trustees· chapter 442 of 1876-rule of. See MATTER OF WOVEN TAPE SKIRT Co.. ASSIGNMENT- Without preference-failure to file bond required by § 3, chapter 348 of 1860 — effect of bankruptcy act. See VON HEIN v. ELKUS.. ASSUMPTION - Of mortgage by grantee - right of grantor - Judgment roll in foreclosure against grantor -evidence against grantee, although not notified of action. 508 516 See COMSTOCK V. DROHAN.. what acts of plaintiff a ratification of. ATTACHMENT- Seizure· See HERRMAN v. GILBERT.. ATTORNEY- Entitled to notice of examination of party before trial, when he ..... Responsible for the insertion of irrelevant and scandalous matter in pleading costs imposed on him therefor. See MCVEY ov. CANTRELL and TADDIKEN v. CANTRELL ATTORNEY AND CLIENT - Agreement to prosecute action for one-half the damages - Fraudulent settlement by client - Relief of attorney.] 1. Attorneys agreed with a party who had been injured by a collision on a railroad, to prosecute an action for him, without expense to him, against the company for the damages sustained, in consideration of one-half of the damages to be recovered. On the service of the summons in the action on a director of the company, he was informed that the attorneys had an interest in the suit for their services, and the company must not settle without their consent. Afterward the company obtained, in consideration of $1,000, a release from the plaintiff (without the knowledge or consent of his attorneys) from all claim for damages. Held, that it would be unnecessary and unjust to set aside the release, as that would take from the defendant the protection which it afforded it against the plaintiff; but it was the duty of the referee before whom the cause was tried, having found the release to be fraudulent, to have held it void as against the attorneys, and complied with their request and ascertained the damages sustained by the plaintiff, and given judgment against the defendant for one-half the amount thereof. COUGHLIN . N. Y. CEN. AND HUD. R. R. R. Co....... 2. Evidence-defense not pleaded to controvert matter set up in answer — admissible.] The defendant having insisted that the referee could not try the question whether the release was obtained fraudulently, as that was not one of the issues referred to him: Held, that as the release was set up as a defense in the answer, and by the Code all allegations in the answer are to be deemed denied, unless they constitute a counter-claim, in which case a reply must be put in, the plaintiff had a right to prove on the trial any matter that constituted an answer to the matter set up by the defendant as a defense, and the evidence that the release was obtained by fraud was a perfect answer to that instrument as a defense, if it was established by the evidence. Id. ATTORNEY-GENERAL - Cannot be compelled to bring action of quo war ranto. See PEOPLE EX REL. DEMAREST v. FAIRCHILD. AUCTIONEER'S FEES - Foreclosure sale.] No fees can be allowed to an auctioneer for services rendered upon the adjournment of a sale by a referee in foreclosure 373 253 455 522 136 334 See WARD v. JAMES.. 526 PAGE. BAILEE — Lien of— not lost, because of not being expressed in receipt.] One Briggs, the owner of certain barley, which he had transferred to the plaintiff as collateral to a loan, being desirous of having the same malted, an agreement was entered into between Briggs, the president of the plaintiff, and the defendant, by which the latter agreed to malt the barley and receive twenty cents per bushel for so doing. At that time he delivered to the plaintiff a paper, by which he agreed to hold the malt subject to the written order of the plaintiff, nothing being stated therein as to the charges for malting or any lien therefor. The defendant having received and malted the barley, refused to deliver the same until his charges for so doing were paid. Held, that the law gave him a lien upon the malt for the amount agreed to be paid, and that the mere absence of a reservation of such lien in the receipt, by which he agreed to hold it subject to plaintiff's order, did not deprive him thereof. HAZARD v. MANNING.. 613 BANKRUPTCY ACT- General assignment without preference.] The right to make a general assignment for the benefit of creditors is not suspended by the provisions of the bankrupt act, provided such assignment contains no preferences and is not made with intent to defraud the creditors of the assignor. VON HEIN v. ELKUS... BANKRUPTCY — Injunction — sheriff liable for release of levy on the property of a judgment debtor on his being adjudged a bankrupt. See ANSONIA BRASS AND COPPER Co. v. Babbitt. Fraudulent concealment of — what is. See ROEBLING v. DUNCAN... BILL OF EXCEPTIONS-Settlement of case presenting only questions of law-insertion of all the evidence in, not proper-Statement of facts established by the evidence- substituted for the evidence, when. See MARCKWALD v. OCEANIC STEAM NAV. Co.. BILL OF LADING- Parol contractten contract. 516 157 502 547 ·when not merged in subsequent writSee HILL v. SYRACUSE, B. AND N. Y. R. R. Co.... Delivery of goods - Several bills of lading the holder of which bill enti 296 tled to. 249 See MERCHANTS' BANK v. UNION R. R. AND TRANS. Co....... BILL OF PARTICULARS - Effect of failure to serve, with the notice in an action to foreclose a mechanic's lien. See NORCOTT v. FIRST BAPTIST CHURCH OF ROME... - Verification of—in action to foreclose mechanic's lien. BINGHAMTON ·Bridge company · - decision of "highest tribunal" — Acts done under- Protection against penalty or forfeiture therefor. See CHENANGO BRIDGE Co. v. PAIGE.... - BONA FIDE PURCHASER — Of promissory note — effect of garnishment process on. See SIMON v. HUOT..... Of promissory note— notice, sufficient to require inquiry. 639 612 292 378 309 Of negotiable paper, invalid in hands of payee — recovery by, restricted to amount paid. 510 See TODD v. SHELBOURNE. BRAKEMAN - Employment of -scope of.] A brakeman, put in charge of railway cars with a view to securing the proper and orderly seating of passengers, forcibly ejected the plaintiff, who disobeyed his direction. Held, that in so doing the brakeman must be deemed to have acted within the scope of his employment, and that the company was liable in case he used excessive and unnecesssary force. PECK V. N. Y. CEN. AND HUD. R. R. R. Co.... 286 BROOKLYN-Justice's Court in-construction of section 16, chapter 102, See DOUGLASS v. REILLY BUILDING - Improper construction of building, causing snow to fall from roof.] Where the roof of a building, in a large city, is so constructed as to render the snow falling upon it liable to be precipitated upon the sidewalk. and there is no adequate guard at the edge to retain it, it is, in judgment of law, a nuisance. WALSH v. MEAD... BURDEN OF PROOF whom. PAGE. 85 251 387 In action on a note made by a lunatic. upon See HICKS v. MARSHALL.. 327 Fire occasioned by sparks from a locomotive · on whom it lies to show due caution was or was not exercised by the railroad company. See MCCAIG v. ERIE RAILWAY CO...... 599 CANCELLATION- And surrender of note, not paid in full. — no right of action exists thereafter for amount unpaid. See KENT v. REYNOLDS. CASE-Settlement of, presenting only questions of law — insertion of all the evidence in, not proper statement of facts established by the evidence — substituted for the evidence, when. See MARCKWALD v. OCEANIC STEAM NAV. Co..... CAUSE OF ACTION Complaint when sufficient — Promissory note signed "J. S. McClure, agent" — liability of principal upon.] The complaint alleged that the defendant, by J. S. McClure, her agent, made and delivered her promissory note, in writing, setting forth a copy of the note, signed J. S. McClure, agent, and alleging that the consideration of the note was goods sold to the defendant. The defendant demurred. The demurrer was sustained at Special Term on the grounds that the note did not refer to the defendant by name, and did not show that McClure had authority to sign as her agent. Held, that the complaint stated facts sufficient to constitute a cause of action. That, under the allegation that the defendant made and delivered her promissory note, it would be competent to show that the person signing the note was duly authorized by her so to do. The fact that the name of the defendant did not appear upon the face of the note, would not prevent the plaintiff from introducing evidence to show that she was bound thereby. MOORE v. MCCLURE... · Under the Code-§ 144, sub. 6, means “any" cause of action. CERTIFICATE— When made prerequisite of payment — unreasonable refusal to give effect of] Where an act authorizing the construction of a courthouse in the city of New York provided, that payments therefor should be made by the city upon the production of vouchers, approved by the commissioners by whom the building was to be erected, a refusal on their part to approve a bill on the ground that they have no personal knowledge of the matter is unreasonable, and relieves the applicant from the necessity of complying with this provision of the act. BANCKER v. MAYOR... CERTIORARI - To review street openings — issuing of, discretionary.] 1. The writ of certiorari is an appropriate remedy to review proceedings for the opening and grading of streets. Although there is no statutory limitation of time within which the writ must be obtained, it is not one of right, and the court can, in its discretion, refuse it in any case, and quash it where it has been improperly granted. PEOPLE EX REL. ACKERLY v. CITY OF BROOKLYN...... 559 547 557 180 409 ... 56 2. Must be applied for within two years.] The general rule has been to quash the writ where application therefor has not been made in due season, and due season has usually been limited to two years. Id. |