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tory negligence a defense. Lynch |5. This, however, cannot be made
McNally.

347

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conclusively to appear, as the
opinion of the court below will not
be regarded as conclusive, and
there is no authority for inserting
in the order the ground of reversal.
Id.

The granting of an order opening
a judgment taken by default is in
the discretion of the court below;
and, in the absence of evidence of
an abuse of this discretion, such
order is not reviewable here. Law-
rence v. Farley.
187

7. The fact that while the provision
of the new Code (§ 190), in re-
ference to appeals to this court,
expressly excludes from review
orders resting in discretion, made
during the pendency of an action,
no such exclusion is expressed as
to such orders made after judg-
ment, does not make the latter
appealable.

Id.

1. The decision of the Special Term
upon a motion to vacate an attach-
ment is reviewable by the Generals. The reason for not entertaining
Term, but an order refusing or
vacating an attachment is not ap-
pealable to this court in any case,
unless it shows that it was refused
or vacated for want of power; and
an order granting an attachment
is not appealable unless it presents
a question of law, or of absolute
legal right. Allen v. Meyer.

1

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appeals from orders resting in dis-
cretion is not founded upon the
express restrictions of the Code,
but upon the character of the juris-
diction of this court, which is con-
fined to the review of questions of
law, except where otherwise ex-
Id.
pressly authorized.

9. An appeal, however, from an order
made after judgment, is expressly
provided for by section 1337, which
declares in substance that such
appeals bring up for review only
questions not resting in discretion.

ld.

10. Where the averments in, and the
frame of a complaint are such, as
to affix to the plaintiff a representa-
tive character and standing in the
litigation, and to show that the
cause of action, if any, devolved
upon him solely in that character,
and where the judgment in the
action is in form a recovery in
plaintiff's favor personally, or fails
to show exactly whether it is ad-
judged to him individually, or as a
representative, it is not a subject
of review here; the remedy is by
motion at Special Term to amend.
Beers v. Shannon.

292

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11. In an action brought by plaintiff
upon a bond which the complaint
showed he claimed to hold as ex-
ecutor, plaintiff offered in evidence
letters testamentary issued to him
in another State; this was ob-
jected to on the ground that plain-
tiff did not sue in his represen-
tative capacity, the word "as
being omitted in the title. The
objection was overruled. Plaintiff
then offered in evidence an ex-
emplified copy of the procf of
the will. This, as stated in the
case, was duly objected to," no
grounds of objection were stated,
the objection was overruled. It
was objected on appeal that there
was no proof that the person mak-
ing the copy was authorized so
to do, or that he was the officer
he assumed to be. Held, that as
the objection was not such an one
as could not, by any possibility,
have been obviated if it had been
taken on the trial, it could not be
relied upon on appeal.

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Id.

12. In an action against the surety,
upon a bond conditioned that the
principal would, within two years,
cause all liens and incumbrances
upon certain premises granted by
him to the obligee, including a
certain mortgage thereon, to be
discharged of record, and would
indemnify and save plaintiff harm-
less therefrom, the complaint al-
leged default in payment of the
mortgage, but did not state any
sum which the obligors ought to
have paid, but neglected to pay.
Held, that the action was upon a
bond conditioned for the perform-
ance of a covenant- the doing of
an act by the principal; not for
the payment of money; that the
case was within the provisions of
the Revised Statutes (2 R. S., 378,
85 et seq.); it was necessary that
plaintiff should assign in his com-
plaint specific breaches for which
action was brought, that the court
should assess the damages there-
by, and that judgment should be
for the penalty, with a further
direction that plaintiff have exe-
cution for the damages so assessed,
but held, that simply for a failure
so to enter judgment an appeal
would not lie; it was an irregu-

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14. A complaint in an action for lim-
ited divorce alleged that defend-
ant, on various occasions, "wan-
tonly and maliciously charged the
plaintiff with unchastity and infi-
delity to her marriage vows," **
"that on one occasion in Decem-
ber, 1876, he pointed a pistol at
her head, when angry, apparently
with intent to kill her," and on
another occasion "ordered her out
of the house, and said he would
make it too hot for her, and threat-
ened to murder her;" which acts
were without cause or provocation,
and that a separation was neces
sary "to her own existence" and
the welfare of the children. The
relationship of the parties as hus-
band and wife was not questioned.
Held, that it could not be determin-
ed as matter of law that plaintiff
could not establish a cause of action
under the complaint; and that an
order granting alimony to the
plaintiff, based upon the complaint
and a verified petition, although
said allegations were denied or
met by the answer and opposing
affidavits was not reviewable
here.

Id.

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When findings of fact will be
presumed to sustain judgment entered
on report of referee.

See Meyer v. Lathrop.

315

no error; that the complaint must be
deemed sufficient here.

See Riddell v. N. Y. C. and H.
R. R. Co. (Mem.)
618

ASSAULT AND BATTERY.

In an action for assault and bat-
tery it appeared that plaintiff had
cut the grass upon the side, adjoin-
ing his land, of a highway dividing
the farms of the parties. Defend-
ants in the absence of plaintiff
went into the highway and com-
menced raking the hay into piles
preparatory to removing it, where-
upon plaintiff went with his team
and wagon for the purpose of car-
rying away the hay, and thereupon
the affray occurred. Defendants
alleged in their answer that one of
them was owner of the land on
which the grass grew, and that the
alleged assault was committed in
resisting an attempt on the part of
plaintiff by force to prevent them.
from gathering the hay. Plaintiff
proved that for several years prior
to the occurrence he had mowed
and cropped the land, and exercised
such acts of ownership as were con-
sistent with its use as a highway.
It was not disputed but that if the
title was as claimed by defendants
they had the right of possession
subject to the public use.
The
court rejected evidence offered by
defendants showing such title, and
withdrew that question from the
jury. Held, error; that assuming
the title to be as claimed, defend-
ants had the right to enter upon
the highway and remove the hay;
that there was no proof of such a
possession in plaintiff at the time
of the affray as justified him in
ejecting defendants or deprived
the latter of the right to resist by
the use of reasonable and neces-
sary force an attempt by plaintiff
to prevent them from removing
the hay. Bliss v. Johnson. 529

A question not presented by
exception cannot be considered on.
See Hunt v. Church. (Mem.) 615
In action to recover for prop-
erty destroyed through defendant's
negligence, the complaint alleged
ownership in plaintiff; on the trial 1. An award of the commissioners

plaintiff proved assignment from
owner after loss; this was objected
to because of form of complaint; a
motion for nonsuit was denied; held,

ASSESSMENT AND TAXATION.

of estimate and assessment, ap-
pointed in proceedings under the
act of 1813 (chap. 86, Laws of 1813),
to acquire lands for a street im-

provement in the city of New
York, when confirmed by the Su-
preme Court, is final and conclus-
ive both upon the city and the
owners; it is in the nature of a
judgment and cannot be assailed
collaterally. In re Dept. of Public
Parks.
560

2. Where, therefore, an award is
made to "unknown owners
" and
upon application to the court for
the payment of the award there
appears to be conflicting claim-
ants, the only question to be de-
termined is, who is the unknown
owner? When ascertained he is
entitled to the award the same as
if he had been known and the
award made to him by name; it
is immaterial whether he owned an
absolute fee or a fee subject to a
public easement; the amount
awarded must be taken to have
been made for his interest what-
ever it was.
Id.

published the session laws, "and
all legal notices and advertise-
ments required by the laws of this
State or any local or special laws"
to be published in said county;
this act gives the board authority
to determine whether there should
be one or more papers, and if they
determine that there should be but
one, all legal notices were required
to be and are sufficiently published
in that one.
Id.

6. Accordingly held, where the
board of supervisors of said coun-
ty, there being no newspaper pub-
lished therein, designated a paper
in Fulton county, that that was the
only paper in which the comptrol-
ler's notices were required to be
published; and where the comp
troller designated another paper
which published the notice, that
the designation was unauthorized
and the expense thereof not a
proper county charge.
Id.

When defect in proceeding
invalidating local assessment for
street improvement will not invalidate
contract for the work.

See Moore v. Mayor, etc.

238

3. The power given to the comp-
troller by the act of 1855 (§ 62,
chap. 427, Laws of 1855), in case
two newspapers were not publish-
ed in a county, to cause notices
for the redemption of lands sold for
When complaint in action
taxes to be published "in the two brought to vacate certain assessments
newspapers which the comptroller and sales as a cloud on title was de-
shall believe to be most generally murred to, and it was claimed by
circulated in such county," was plaintiff that by the statute a con-
superseded as far as the county of veyance on the sale was presumptive
Hamilton is concerned by the act evidence of regularity. Held, that
of 1866 (chap. 690, Laws of 1866), without determining the questions in-
providing for the publication of volved, the proper disposition was to
legal notices in said county. Peo-overrule demurrer and require an-
ple ex rel. v. Suprs. Ham. Co. 604

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swer.

See Townsend v. City of Brooklyn
(Mem).

ASSIGNMENT.

589

1. This action was brought upon a
guaranty of a promissory note,
which note, with guaranty, was
assigned to plaintiff after ma-
turity. The former holder of the
note brought an action against the
maker and defendant jointly. De-
fendant demurred, and the de-
murrer was sustained, with leave
to plaintiff to amend on payment
of costs. Held, that the court had ·
power to stay proceedings in this
action until the payment of costs

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The decision of the Special Term
upon such a motion to vacate an
attachment is reviewable by the
General Term, but an order refus-
ing or vacating an attachment is
not appealable to this court in any
case, unless it shows that it was
refused or vacated for want of
power; and an order granting an
attachment is not appealable unless
it presents a question of law, or of
absolute legal right.
Id.

It is only where no construction
which might be given to the facts
would justify the order that it can
be said to be against law.

Id.

Under bankrupt act, effect of 6. An assignment, in proceedings

upon attachment.
See Duffield v. Horton.

ATTACHMENT.

219

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under the bankrupt act, discharges
the lien of an attachment, levied
within four months of the com-
mencement of the proceedings
upon property of the bankrupt;
no intervention or action of the
court is required. Duffield v.
Horton.
218

Defendants were indebted to one
G. The debt was levied upon
under an attachment against G.
Within four months thereafter,
proceedings in bankruptcy were
instituted against G. He was ad-
judicated a bankrupt Plaintiffs
were appointed his assignees, and
an assignment executed to them.
Prior to the assignment, judgment
was recovered in the attachment
suit, execution issued, and de-
fendants, without knowledge of the
bankruptcy proceedings, paid the
amount of their debt to the sheriff.
In an action by plaintiffs, as as-
signees, to recover the same, held,
that the assignment transferred
the property as of the day of the
filing of the petition; the attach-
ment was dissolved, and the lien
thereof upon the property attach-
ed discharged as of that date;
that the payment to the sheriff was
without authority, and did not dis-
charge defendants' obligation;
and that, therefore, they were
liable.
Id.

8. In an action against the members
of a firm, an attachment was issued

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