the land, is elementary, and any act which diminishes that estate affects it; and, if it be affected, then it falls within the code provision. Not only does the action, if the plaintiffs are successful, diminish the estate of Van Ness, but it greatly enlarges the estate of the plaintiffs. They then take the fee of the land. in remainder, and Van Ness may not dispose of it. It seems clear to us, therefore, that this action affects an estate in land, and is therefore a local action. The moving defendants are entitled to the relief which they ask, and remain unaffected by plaintiffs' failure to serve Emma Louise Van Ness with the summons and complaint. They are not to be prejudiced by such failure. As to Alice Van Ness, she appeared and consented to the change, and such fact is recited in the order from which the appeal is taken. We think, also, that Orange county is the proper place for the trial of this action. The deceased and her husband resided there at the time of the former's death, and this is the present residence of all of the parties defendant, and in that county all of the proceedings have been had affecting the estate, so that the legal right and a natural selection for the trial of this action are combined.
For these reasons, we think the order should be reversed, with $10 costs and disbursements, and the motion granted, with $10
INDEX OF CASES AND NOTES.
Death of plaintiff intermediate de- cision and judgment-substitution of executor.-Plaintiff in an action for dower having died after decision dis- missing her complaint with costs and the making of an order awarding an extra allowance against her but prior to the entry of judgment on the decision, her executor is entitled to be substituted, if he desires to re- view the order for the extra allow- ance or the judgment for costs which may be entered on the decision. Armstrong v. Trustees of Union Col- lege, 332.
Specific performance--sufficiency of consideration.--A contract of ad- option is based on a sufficient con- sideration to warrant a decree of specific performance, where, on promise that the child shall be edu- cated, cared for, and allowed to share in the estate of the adopter as if she was his own offspring, the mother surrenders all control child. Healy v. Healy, 325. such
- Contract for share of estate- public policy.-Specific performance of a contract of adoption, wherein the adopted child was promised the share of an own child in the adopt- er's estate, is not against public pol icy. Healy v. Healy, 325.
-Injustice to third parties.— Specific performance of a contract of adoption providing that the adopted child should have the share of an own child in the adopter's estate will not be denied on the ground that it is unjust to innocent third parties, where such an enforcement does not diminish the dower interest of the widow in the adopter's estate, and the other children of adopter receive what they would be entitled to under
the law of descent were plaintiff a sister in blood, instead of by adop- tion. Healy v. Healy, 325.
parol agreement of adoption, where of contract.-A by the adopter is to care for and maintain plaintiff as his own child, to give her his name, to teach her to know him and his wife as her parents, and to provide for her fu ture maintenance by giving her the share of an own child in his estate, is sufficiently definite to be specificat ly enforced. Healy v. Healy, 325.
Statute of Frauds-parol contract -part performance-enforcement.— A parol contract of adoption, where- by it is expressly agreed that a child shall be supported, educated, and maintained during her lifetime by her adopted father, and that at his death she shall receive the share of his estate to which she would have been entitled had she been his own offspring, will be specifically en- forced, at the suit of such child, where completely performed except that portion of it requiring that the adopter nake suitable provision for the child in event of his death; it being within the meaning of the pro- vision of the statute of frauds (2 Rev. St. [Banks & Bros.' 9th. Ed.] p. 1885, § 10) providing that noth- ing therein contained shall be con- strued to abridge the powers of courts of equity to compel specific performance of an agreement in case of part performance of such agree- Healy v. Healy, 325.
ALIMONY. See Divorce and Separation.
AMENDMENT.
See Pleading. See Trial.
ANNULMENT OF MARRIAGE.
See Divorce and Separation.
Court of appeals--jurisdiction- ground for appeal-statute---con- struction.-Code Civ. Pro. § 191,
subd. 2, providing that no appeal
shall be taken to the court of ap- peals from a unaminous affirmance of a judgment by the appellate divi- sion rendered in an action "to recover wages, salary, or compensation for services," except on certain condi- tions, refers only to cases where the claim for such wages, salary or com- pensation arises out of a contract re- lation, and not where the compensa- tion is determined by statute as an incident to a public office. Donnelly v. New York, 246.
NOTE--WHEN APPEAL LIES TO THE COURT OF APPEALS....246-255
a. Scope of note.-References. b. The statute.
c. When appeal matter of right. 1. In general.
2. Final orders and judg
3. Mandamus.
4. Certiorari.
d. Leave of court.
Settlement of Case-right to a re- settlement.--Code Civ. Pro. § 992, provides that an exception may be taken to a ruling of the court on any question of law arising on the trial of an issue of fact, and that a trial by a jury is regarded as continuing until the verdict is rendered. Held, that the fact that the trial court struck out of defendant's case, as proposed, advice given by the court to the jury after the verdict has been recorded, did not entitle defendant to a resettlement of the case, since such matter constituted no part of the trial. Wierihs v. Innis, 122.
-stenographer's notes-authority of trial court.-Code Civ. Pro. § 997 provides that a case on appeal Inust contain so much of the evidence and other proceedings on the trial as is material to the questions to be raised thereby. Held, that the strik ing out by the court of irrelevant matter in the stenographer's notes included in the proposed settlement of the case, although assented to by plaintiff. was proper. Wierichs v. Innis, 122.
The rule that a new trial will not be granted to a plaintiff where, upon the entire case, it appears that he is entitled to recover nominal damages only, does not apply where an allow ance of nominal damages is neces- sary to protect his property inter- ests, as by preserving his future rights under a covenant. Skinner v. Allison, 155.
NOTE. REVERSAL WHEN AP- PELLANT ENTITLED TO ONLY NOMINAL DAMAGES......155–162. a. In general.
b. In penal actions.
c. Verdict against evidence. d. Misdirection of jury.
e. In vexatious action.
f. Where judgment carries costs. g. Property rights involved.
objections to evidence--suffi- ciency.-Where the issue was wheth- er plaintiff was licensed and author- ized to practice medicine as a phy- sician, and defendant offered a regis- ter of physicians and surgeons as a public record to show that plaintiff was not registered or licensed at the time the services sued for were ren- dered, it was reversible error to ex- clude such register on plaintiff's ob jection that it was incompetent, im- material, and irrelevant; such objec- tion being insufficient to raise the question as to the authenticity of a register as a public record. Accetta v Zupa, 190.
-judgment-amendment on ap- peal. The county court, on appeal from justice's court has no thority to modify a judgment entered against only the defend- ants served in an action against joint contractors by entering it against all the defendants, un- der Code. Civ. Pro. § 3063, providing that the appellate court may reverse or affirm the judgment of the justice, in whole or in part, and as to any or all parties for error of law or fact. Elster v. Viele, 294. NOTE-EXTENT OF RELIEF ON
APPEAL TO COUNTY COURT ON THE LAW.... .294-301
a. Statutory provisions. b. Partial affirmance
1. Manifest injustice.
2. Satisfactory excuse. -notice-effect.-Where in an ac- tion against joint contractors a part only were served with process, and the judgment, which was erroneously entered only against those served, was amended by the appellate court without authority, the fact that the notice of appeal purported to have been taken by all the defendants does not justify the judgment of the ap- pellate court, since it will be deemed to have been taken simply in behalf of those against whom the judgment was entered. Elster v. Viele, 294.
-direction of verdict-exception. -Where defendant excepted to the direction of a verdict for plaintiff, and asked to go to the jury on the facts, he was entitled on appeal to present the objection that there were questions of fact for the jury Wierichs v. Innis, 122.
Lien - parties' settlement before judgment-right to continue cause-- effect of settlement.-Code Civ. Pro. § 66, gives an attorney's lien on the client's cause of action, and provides that it shall attach to the client's judgment, and can not be affected by any settlement between the parties before or after judgment. Held, that by an honest settlement between the parties before judgment the cause of action was extinguished, the effect of the statute being merely to continue the lien on the fund paid in settlement, and hence that plain- tiff's attorney was not entitled to have the action continued to judg ment against defendant to recover the amount of his fee, though, had the settlement been fraudulent as to the attorney, the rule would be other- wise. Dolliver v. American Swan Boat Co. 74.
NOTE. ENFORCEMENT OF ATTOR- NEY'S LIEN.
« PreviousContinue » |