tory negligence a defense. Lynch |5. This, however, cannot be made McNally.
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.
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.
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.
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.
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.
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-
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.
When findings of fact will be presumed to sustain judgment entered on report of referee.
See Meyer v. Lathrop.
no error; that the complaint must be deemed sufficient here.
See Riddell v. N. Y. C. and H. R. R. Co. (Mem.) 618
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,
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.
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
See Townsend v. City of Brooklyn (Mem).
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
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.
Under bankrupt act, effect of 6. An assignment, in proceedings
upon attachment. See Duffield v. Horton.
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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