the acts and decisions upon this subject favors the conclusion that such notice should have been given. I find provision for it in section 291 of the Penal Code, as amended in 1886 and 1888, and in the consolidation act of 1882, §§ 1594-1632. The cases, too, seem to recognize the necessity for such notice. Van Heck v. Protectory, 101 N. Y. 195, 4 N. E. Rep. 177; Van Riper v. Protectory, 106 N. Y. 604, 13 N. E. Rep. 435; 19 Abb. N. C. 142. It is true that the notice referred to in section 291 of the Penal Code is special; that is, a notice which, if given, shall render some other or different notice under local or special statutes unnecessary. Still, I think that the notice thus contemplated was intended to be a general requirement. It would be strange, indeed, and exceedingly harsh, if an adjudication should be permitted entirely ex parte that a child was without proper guardianship. Such an adjudication runs practically against the guardian as well as against the child, and yet such guardian is stigmatized as "improper" without the opportunity of defending himself or herself or the child. Upon the whole, I think that the demurrer should be overruled, and the child discharged.

In re CHAPMAN.

(Supreme Court, Special Term, Albany County. September, 1888.) TRUSTS-TRUSTEES-APPOINTMENT AND REMOVAL.

The cestui que trust claimed that a lease executed by the trustee was improvident, and should be set aside; that the rent was too small; that she had received nothing; that she had requested the trustee to take steps to set aside the lease, and he had declined. The trustee had sent her an account and his check for the balance shown to be owing her, but she had returned the check because the account contained no statement of taxes and insurance which ought to have been paid, after payment of which she would receive no income. In returning the check, she stated that all her business was done through her attorneys, (naming them,) to which the trustee replied that he was required to apply the income to her support, and did not feel justified in paying it to her attorneys. Held that, as the relations between the trustee and cestui que trust were not cordial, and as the latter was a married woman, and old enough to have some judgment as to her own interests, the trustee would be removed at petitioner's costs, no fault on his part being shown.

Application of Mary S. Wolfe to remove James R. Chapman as trustee. John T. Carr, (Edgar T. Brackett, of counsel,) for petitioner. Charles S. Lester, opposed.

LEARNED, J. The petitioner unqualifiedly disclaims any charge against the moral character of the trustee, or against his responsibility. This should be stated at the outset. Briefly, the facts are that the trust was created in 1871. The present trustee was appointed in 1882, in place of a deceased trustee, who had by appointment succeeded to the trust. The trust in the whole of the property ceased in 1886; but there continued another trust in one undivided third for the petitioner for life, with remainder over to her children. In 1880 a lease of the property was made by the then trustee for five years, with the privilege of renewing for five years, to McCaffrey, for $5,000 per annum. McCaffrey availed himself of the privilege. He died in 1886, and his widow (who is also the owner of one-third under the original deed) is now in possession. At the time when these moving papers were served, the trustee held the lease as security for a liability for McCaffrey, which has since been paid. The petitioner claims that the lease was an improvident one, and should be set aside; that the rent is too small; that she has received nothing; that she has requested the trustee to take steps to set aside the lease, and he declines. The trustee says that in July, 1888, he sent an account to the petitioner, and his check for $557.03, the balance, which check was returned by her. In reply to this, she calls attention to the fact that said account rendered in July, 1888, contained no statement of taxes which should have been paid January 1, 1888, or of insurance premiums, May, 1888, or of village

taxes, July, 1888. Whence the petitioner's counsel urges that, those being paid, she would receive no income. In returning the check to the trustee, Mrs. Wolfe wrote him that all her business was done through her attorneys, (naming them.) To this the trustee replied that by the terms of the trust deed he was to apply the income to her support and maintenance, and that he did not feel justified in paying it to her lawyers. This correspondence shows that there is a want of cordiality between the trustee and Mrs. Wolfe. It further appears that during the first five years of the lease McCaffrey made a considerable addition to the building, and also furnished the hotel with necessary furniture at an expense of some $30,000. It also appears that McCaffrey was indebted at his death for the rent, payable October 1, 1886, which has not been paid, and which the present occupant refuses to pay. The question whether the lease, when made, was improvident, is important, not as affecting this trustee directly, because he did not make it, but as showing that it was not judiciously made, and should now be set aside under the equitable power of the court. As the trust-estate in two-thirds of the property has ceased by the death of Harriet Perry and the maturity of Helen A., a question is made whether the lease, as to those two-thirds at least, has not ceased. 1 Rev. St. p. 730, §§ 65, 67. But see Greason v. Keteltas, 17 N. Y. 491. Or, if the lease was valid at law, whether it would not be held improvident in equity. It seems undoubted that the property would now rent for more than the rent received. But that does not necessarily show that it was ill-advised at the time. That question I cannot pass upon here, and I express no opinion. But this question the petitioner desires to try, and the trustee does not think it best to do so. Possibly, also, the petitioner may think that lease forfeited for non-payment of rent. At any rate it appears that the views of the petitioner and those of the trustee differ as to the proper management of the trust in respect to this lease, and also that there is a want of harmony between them. Now, this trust is solely for the petitioner's benefit. No one else has any interest in it. She is a married woman, old enough to have some judgment as to her own interests. If another trustee be appointed, he will enter on any litigation without careful advice, but he may be more ready to consider the wishes of the petitioner. It seems to me just, therefore, that she should have the trustee whom she desires, supposing him to be a suitable person, and this without casting any blame on the present trustee. Quackenboss v. Southwick, 41 N. Y. 117; Case of Morgan, 63 Barb. 621; Deraismes v. Dunham, 22 Hun, 86. If she should induce her new trustee to commence a litigation which should prove to be unwise, and should cause a loss to her, that will be her own fault, and she will have to bear the consequence. I have no reason to think that she is incompetent to judge on such matter, although, like every one else, she may judge unwisely, and suffer thereby. And it may be noticed here that as to one-third the lease seems to have merged in the fee, so that naturally Mrs. McCaffrey makes no complaint as to the rent being small. As to the other third nothing appears except that the trust has ceased. Mrs. McCaffrey, then, is interested in having the lease at its present alleged low rent, and even the trustee, at the time when these proceedings were commenced, held the lease as security, and at that time had an interest against having it set aside. I think, therefore, that there should be granted an order removing the present trustee, and appointing in his place the trustee named in the petition. The petitioner must pay the trustee $10 costs of this motion, because the motion is granted only on her request, and for no fault of his. The usual order of reference to pass the accounts of the trustee.

WENZELL V. MORRISSEY.

(Supreme Court, Special Term, Albany County. September, 1888.) ATTACHMENT-AFFIDAVIT DESCRIPTION OF CLAIM.

An affidavit for attachment described the claim sued on as for "the services of the plaintiff, as the attorney of the defendant, rendered in prosecuting certain suits upon his retainer, and for drawing and engrossing certain instruments in writing," "which services were performed, and money advanced, between" stated dates. Held, that the affidavit contained a direct and positive averment of indebtedness for services performed and money advanced, and not a mere allegation of indebtedness without any facts.

Motion to set aside an attachment.

Alpheus T. Bulkley, for plaintiff. Nathaniel C. Moak, for defendant.

LEARNED, J. The plaintiff's affidavit avers "which services were performed, and money advanced, between September 20, 1883, and January 1, 1888," and it is sworn to September 15, 1888. It therefore appears that the attachment was not obtained on the last day when the services were rendered, so that the objection sustained in Smadbeck v. Sisson, 4 Civ. Proc. R. 353, does not apply. Next, the sentence above quoted is a positive averment that the services were rendered and the money advanced. Therefore the objection that there is only an allegation of indebtedness without any facts, taken in Smith v. Davis, 29 Hun, 306, does not apply. The words "which services," etc., of course refer to services and money previously mentioned. Looking back, then, we find a description of the services and money as follows: "The services of the plaintiff, as the attorney for the defendant, rendered in prosecuting certain suits upon his retainer, and for drawing and engrossing certain instruments in writing." Thus we have a positive allegation that, between the dates specified, the plaintiff did perform services as attorney for defendant rendered in prosecuting certain suits on his retainer, etc. Prosecuting suits, as attorney, on defendant's retainer, means acting as attorney at law, and if plaintiff were not such attorney, or did not so prosecute suits on defendant's retainer, then the affidavit would be positively false. It could not be held to mean attorney in fact. "Retainer" is a word with a distinct and well-known meaning. The case of Pomeroy v. Ricketts, 27 Hun, 242, is cited by defendant as sustaining their view that the affidavit is defective. The affidavit in that case lacked just the positive averment which this affidavit contains. If that affidavit had had the additional words, "which goods, wares, and merchandise were sold and delivered between June 8, 1880, and June 30, 1880," then there would have been a statement that the plaintiff had in fact sold goods to the defendant. The case of Manton v. Poole, 4 Hun, 638, is of the same character with the case last cited. In the present case it seems to me that the defendant has overlooked an important part of the affidavit, and has treated it as if the words "which services were performed and money advanced" were stricken out, while in fact these words make a positive averment of what otherwise might perhaps have been called a "mere recital." Motion to set aside the attachment denied, with $10 costs.

JEWITT V. JEWITT.

(Supreme Court, Special Term, Albany County. September, 1888.) JUDGMENT OPENING AND VACATING-WRITS-SERVICE BY PUBLICATION.

On motion to set aside judgment in an action instituted by publication of summons it appeared from defendant's affidavits that plaintiff, before the institution of the action, was in the city where defendant lived, and had conversations with her there, and that he knew that she lived there. These allegations were not denied by plaintiff. It also appeared that defendant met plaintiff frequently, after the action was commenced, and was not informed of its pendency, and knew nothing of it till after decree. The affidavit upon which publication of summons was or

dered contained no evidence, as required by Code Civil Proc. § 440, that plaintiff could not with reasonable diligence ascertain where defendant would probably receive mail matter. Held, that all the proceedings should be set aside.

On motion to set aside a judgment.
Calen R. Hitt, for plaintiff,

William North, for defendant.

LEARNED, J. There is no evidence whatever in the affidavits on which the order of publication was granted that the plaintiff could not with reasonable diligence ascertain a place where the defendant would probably receive matter transmitted through the post-office. Code, § 440. The defendant's allegation, in her moving affidavits, that in 1887 the plaintiff was at Hartford, and had frequent conversation with her there, and that he knew that she resided in Hartford; that he stayed with their daughter in Hartford, and had correspondence with her son there, are not denied by plaintiff. The order of publication was obtained in December, 1887, and served by publication that month. In March, 1888, and till June, 1888, defendant was in West Troy, plaintiff's residence, and was at the same house where plaintiff lived, and, although she thus met plaintiff frequently, she was not informed that this action had been commenced, and she never knew of its pendency till after the decree, in August, 1888. The plaintiff lived in Albany county, and the place of trial should have been there. Code, 984. It was placed in Saratoga county. The publication of the summons was in two Ballston papers. The report of the referee does not mention the name of the person with whom the alleged adultery was committed at plaintiff's house, and as to that alleged to be committed in Troy only says, "a man by the name of Nichols." I cannot doubt, on these papers, that the plaintiff knew where the defendant lived when he obtained the order, or at least where she would probably receive mail matter, and that he intended that she should know nothing of the action till after judgment; and his affidavit to obtain publication was plainly defective on its face. The order of reference, and all proceedings thereunder, the report of the referee, and the judgment entered thereon, are set aside, with $10 costs, and the defendant may come in and answer or demur within 20 days after service of a copy of the complaint on her attorney.

(49 Hun, 465)

PEOPLE ex rel. LENTZ et al. v. GRAY, Highway Commissioner, et al. (Supreme Court, General Term, Third Department. September 24, 1888.) HIGHWAYS-ESTABLISHED BY STATUTORY PROCEEDINGS-NOTICE.

Under Laws N. Y. 1847, c. 455, and amendments, prescribing the manner of assessing damages arising from the laying out of roads by the highway commissioner, viz., that a jury be drawn, the parties be heard, witnesses examined, etc., all the proceedings are void, unless due notice thereof be given to the parties, although such notice is not expressly required by the act.

Certiorari to county court, Fulton county.

Chapter 455, Laws 1847, and amendments, prescribe the manner of assessing damages arising from the laying out of roads by the highway commis.

sioner.

Argued before LEARNED, P. J., and LANDON and INGALLS, JJ.
Philip Keck, for appellant. R. P. Anibal, for respondent.

LEARNED, P. J. Chapter 455, Laws 1847, and amendments, show the manner of assessing damages in these cases. After the jury has been drawn, then, by section 6, they are to "hear the parties, and such witnesses as may be offered by the parties, and sworn by said justice before them." Although nothing is said expressly about notice to the parties, such notice is necessary on sound and settled principles. Without due notice, the proceedings cannot stand. This is the decision in Stephens v. Tallman, 36 Barb. 222,

and we think that decision correct. The respondents ask for an order authorizing the calling of a new. jury. We do not feel certain that we have that power. Whether the proceedings have entirely failed or not we will not now determine. It is enough for the present that we reverse the proceedings, with $50 costs and debts against the highway commissioner.

LANDON and INGALLS, JJ., concur.

VAN GELDER v. HALLENBECK.

(Supreme Court, General Term, Third Department. September 24, 1888.) 1. COSTS-WHO ENTITLED TO-SHERIFFS AND CONSTABLES-EXCESSIVE LEVY.

A sheriff who has collected more than sufficient to satisfy an execution, and refuses to pay the balance to the judgment debtor, is liable for the increased costs. prescribed by Code Civil Proc. N. Y. § 3258, in actions brought by reason of an act of a public officer, or an alleged omission by him to do an act which it was his official duty to perform.

2. SAME-INTEREST ON COSTS.

Where plaintiff recovers judgment in one cause, and defendant in another, in the same action, and the costs adjusted are set off against each other to the extent of plaintiff's costs, which were smaller, and on appeal by defendant the judgment against him is reversed, defendant is entitled to interest on the costs adjudged to him below.

8. NEW TRIAL-MOTION-EFFECT OF MOTION FOR REARGUMENT.

After an order for a new trial has been made, and defendant has noticed the cause for trial, proceedings of the plaintiff, on a motion for reargument, do not stand in the way of defendant's right to proceed under the order.

Appeal from special term, Saratoga county.

Argued before LEARNED, P. J., and LANDON and INGALLS, JJ.
James H. Van Gelder, in pro. per. James B. Olney, for respondent.

LEARNED, P. J. 1. The small mistake as to computation of extra allowance is a matter not presented to the court, and therefore not to be considered here.

2. The items of $30 trial fee, and $25 for proceedings before and after trial, were properly allowed. As is stated by Justice MAYHAM, the proceedings of the plaintiff, on the motion for a reargument, did not stand in the way of defendant's right to avail himself of the order for a new trial. He had noticed the cause for trial, and was entitled to move it when reached; and as a new trial had been granted by the general term, defendant had a right to proceed with the cause. The cause was not discontinued, but the complaint was dismissed at the circuit.

3. Term fee, February, 1887, (1888.) The cause was on the circuit calender, and we see no reason why the amount should not be allowed.

4. There is a small item of $8.55, which arises in this way: On the trial of this action, the referee found in defendant's favor on the first cause, and in plaintiff's favor, $123.03 on the second. Defendant taxed his costs on the first cause at $128.19; plaintiff his, on the second, at $152.19. Plaintiff's costs were offset against defendant's to their extent, and judgment entered accordingly. Defendant appealed, and judgment was reversed. Now, as the first cause was disposed of on the first trial in defendant's favor, and his costs adjusted at a definite sum, it seems right that on the final judgment that sum should carry interest; otherwise the defendant would suffer by reason of his appeal.

5. The expenses of printing papers. This is charged at what is shown to be the regular price,-the same price which the affidavits state to have been charged by the plaintiff himself in several tax-bills in litigations connected with the present action. There is no reason to think that there is fraud or collusion in the amount charged, and we think it was properly allowed. 6. The question of "double" costs. This is really not before us. The clerk