stututory requirements were substantially complied with. It is not necessary to the valid laying out of a highway, that there should be a written application therefor. A parol consent to the laying out of a road It is not necessary that the entire length of the of the road are permitted to keep up fences in laying out a public highway, requires thereto; said road commences on the that the survey shall be incorporated in the five-mile line at Alpheus S. Clark's order. Where this was not done literally, southeast corner; thence running but the order of the commissioner of highways purported to accord with a survey, westerly to the Drew farm, and beand a survey describing the same highway tween Ichabod Leonard's, Jr., land, as that described in the order was recorded to William R. Thomas' land, twenat the same time as the order, Held, that the ty-six rods, according to the survey thereof; said highway to be three rods in widths. Signed, &c." This was recorded 14th January, 1854, in book of records of highways, on page 241. On same day there was recorded in the same book, on page 242, an instrument under seal, which recited the laying out of said highway on the 9th of April, 1853, by the commissioner, and whereby the owners and occupants of lands. through which the highway passed severally released all claim for damages by reason of laying out and opening it. On same day, another instrument was recorded in same book, on page 243, signed by said Appeal from a judgment on the Samuel Strowyer, and purporting to report of a referee. Action for tres- be a survey made by him, dated 9th pass quare clausum fregit. Answer April, 1853, which described a highalleged that the locus in quo was a way by courses and distances for a public highway, and defendant jus- length of one mile and one hundred tified as commissioner of highways. and thirty-eight rods. The referee The only question litigated was as found that the highway described to the existence of the alleged high- in the survey was, in fact, the same way. On 2d January, 1854, the sole highway referred to in the said commissioner of highways in the order. town of Penfield executed, and sub- The highway was never opened sequently filed with the town clerk, its entire length, but after the order an instrument as follows: "It is was made about three-fourths of a ordered and determined by the mile of the road next to the five-mile commissioner of the town of Pen- line, which had been previously field, County of Monroe, that a traveled and worked by the occuhighway be laid out in said town pants of the adjoining lands, was upon the application of Samuel worked several seasons under the Strowyer, and passing through the direction of the public authorities, improved lands of said Strowyer were open to travel and were travand others, who have consented eled without interruption, except that some of the occupants of the should not be deemed fatal. Van lands adjoining kept up cross fences Bergen v. Bradley, 36 N. Y., 316. for the purpose of restraining cattle, Held also, That it is not necessary &c., but not with the intent of pre- to the valid laying out of a highway venting the use of the road; such that there should be a written applicross fences were supplied with cation therefor. The commissioner gates or bars, which travelers were may act of his own motion. 1 R. at liberty to open for the purpose of S., 513, § 55; Gould v. Glass, 19 passing through. Barb., 179; People v. Supervisors of Richmond Couuty, 20 N. Y., 252. A. J. Wilkin, for applt. Held also, That a parol consent to J. & Q. Van Voorhis, for respt. the laying out of a road through imHeld, That the provisions of the proved land is good until revoked. statute requiring that the survey People v. Goodwin, 1 Seld., 568, shall be incorporated in the order The release in question, in connec(1 R. S., 513, § 55), although not lit- tion with the other circumstances erally, were substantially complied of the case, was sufficient evidence, with. The order purports to accord uncontradicted, of the fact that the with a survey; the survey in ques- persons who executed it consented tion is recorded at the same time to the laying out of the road. It apwith the order; it is found that both pearing, therefore, that the commispapers describe the same highway. sioner had jurisdiction to proceed, The presumption arising from the and that fact being accompanied by difference in dates is that the sur-proof of a valid order, the evidence vey and release were made in April, of a laying out of the alleged road is 1853, and were not acted on by the complete. Extremis probatis, media commissioner until January, 1854, presumuntur. and that he, soon after deciding the Held also, That the statute prematter, filed both papers, as it was scribing that a laid-out road shall his duty to do (1 R. S., 518, § 83). be opened and worked within six It is also to be presumed, from the years after making the order, does date of the recording, that both pa- not prescribe how much or how well pers were filed at the same time; it shall be worked; if opened and moreover, they are on consecutive worked at all, it will not lose its legal pages of the proper book; there is existence. Marble v. Whitney, 28 no evidence that the order referred N. Y., 297. The most that can be to any other survey of the road in claimed is that the westerly portion question, or that any other was ever of the surveyed road which was not made or recorded. These circum- opened or worked at all ceased to be stances, identify the survey as the a public highway, but the remaining one referred to in the order, and so three-quarters of a mile, if opened the purpose of the statute, which and worked within six years, was not was to secure a record of the route so affected. Neither is it any objecof the road, seems to have been fully tion that the portion of the road so answered. A mere informality kept in existence did not connect at its western terminus with any other were relieved from the payment highway. A cul de sac may consti- thereof. There was a clause in the tute a highway. People v. Kingman, lease that if the premises was par24 N. Y., 560. tially destroyed by fire, an abatement either total or partial shall be made of the rent for the period necessary to put the same in order, or lease shall cease and determine. Held also, That the maintenance of cross fences, with gates or bars, show at most an acquiescence by the public in a partial obstruction of if totally destroyed by fire that the the highway for the convenience of the occupants, but such acquies- The premises were injured by an cence is no evidence that the road overflow of water, and the landlord was not opened and worked as took it upon himself to repair the a public highway, or that it was premises. The defendants quit on abandoned as such. Marble v. the 30th September, and the rent Whitney; 28 N. Y., 305. was not due until November 1st folJudgment reversed and new trial lowing. On the trial the court deordered. clined to instruct the jury that the Opinion by Smith, J.; Talcott, P. plaintiff was entitled to recover J., and Hardin, J., concuring. rent for the time during which the Redfield & Ilill, for pltff. Held, That the right of the tenant Nevin W. Butler, as receiver, v. to abandon the premises does not Amos M. Kidder et al. exist under the facts in this case, because the premises were not rendDecided Jan. 20, 1850. ered untenantable by fire, but by Where a lease expressly covenants that the an overflow of water. That the cotenant shall not be required to pay rent if the venant contemplated by the act of premises become untenantable in consequence 1860, in regard to the destruction of fire, it takes the case out of the statute of of premises by fire, is found in this lease, and that that covenant takes the parties beyond the operation of that act. 1860, in case of damage by any other ele ment. If the tenant necessarily abandons the occupancy of the premises without fault or act of the landlord, the latter can recover rent up to the time of the abandon ment. That under the act of 1860 the tenant is required to pay rent for Action to recover rent upon a the time of his occupancy, but no written agreement. The premises longer. That the tendency of courts it was claimed by the defendants and of legislation has long been to became untenantable during the favor the apportionment of rent period for which the rent accrued, where the landlord is not responsible and claimed that thereby defendants for the loss of the tenant of the en case the remedy is by motion, and not by appeal from the judgment. joyment of the demised premises. 3 Kent, p. 471, notes. That the correct rule was laid down by the court in Austin v. Field, 7 Abb. N. S. 29, ing plaintiff's complaint under the Appeal from a judgment dismissand that the plaintiff was entitled to following circumstances: On 7th recover rent for the time during September 1878, the defendants which the defendant occupied the premises before the injury which the benefit of creditors to the Hoagland made an assignment for occasioned the abandonment. Judgment reversed and new trial ordered. Opinion by Van Hoesen, J.; Larremore, J., concurred. defendant Goerschmis. The schedules were filed September 24, 1878. On September 25, 1878, the assignee gave his bond and took possession of the assigned property. Daly, Ch. J.,dissented,in a lengthy The plaintiff, as a judgment creditor opinion, on the ground mainly that of the defendants Hoagland, comthe rent could not be apportioned menced this action to set aside the for the part of the quarter that the defendant occupied up to the aban-assignment as fraudulent, alleging the omission from the schedule of donment. That the Act of 1860 has certain assets. On the trial the not changed the common law on omission claimed was a balance of that point, and the judgment below $33 in one bank and $1,000 in was right. another bank, and $1,000 on bond and mortgage, and $434 in another bank. It appeared in evidence that ASSIGNMENT FOR BENEFIT on the 9th September, 1878, two OF CREDITORS. SCHEDULE. EQUITY JUDGMENT. N. Y. COMMON PLEAS. GENERAL days after the assignment, the sum of $434, the exact balance of the defendants Hoagland, was drawn out of the bank upon their own order, and no explanation was given George S. Schultz v. John E. of this circumstance. It never went Hoagland et al. Decided Feb. 2, 1880. Where an assignment is made for the benefit of creditors, and it appears that there is a fraudulent omission of assets from the schedule, and such assets never come into the hands of the assignee, and are not accounted for, or the omission thereof explained, the assignment will be set aside as fraudulent and void at the suit of a judgment creditor. The judgment in an equity action should be entered by direction of the court, in the form of a decree, and cannot properly be entered by the clerk in form as a common law action. If judgment is improperly entered in such into the hands of the assignee, and Benj. F. Carpenter, for plff. Held, That the fact of the assignors drawing out the balance of $434 upon their own order after they made the assignment, and omitting to put it in their schedules or to pay it over to the assignee, raised a strong presumption of a fraudulent intent upon their part which it was their duty to explain if possible; and as no explanation of it was given, it would seem that no explanation of it could be made, and that it was sufficient to set aside the assignment. A referee appointed to ascertain and report the This was an appeal from an order of General Term, reversing an order of Special Term awarding surplus moneys in an action for the foreclosure of a mortgage. The order appealed from imposed costs of the A. N. Weller, for applts. That the objection to the judgment as irregular is not available npon this appeal. That upon mo- appeal upon the appellant absotion made within a reasonable time lutely. the judgment should be set aside for irregularity, as the clerk has no power to enter a judgment in an Held, That the order, as it imequity case until it has been directed posed costs absolutely, was a final to be entered by the judge before determination, and therefore appealwhom or the court in which the cause has been tried. The judgment should have been in the form of a decree of the court, and entered by the court. Judgment reversed and new trial ordered, with costs to abide event. Opinion by Van Brunt, J.; Daly, Ch. J., concurred. able. Also held, That the referee appointed to ascertain and report the liens and their priorities in reference to the surplus moneys, had authority to inquire as to the character of all liens presented, and the fraudulent character of conveyances could be tested in the proceedings before him. 19 N. Y., 441, 442; 28 Paige, 511, 512; 55 N. Y., 442; 50 APPEAL. FRAUDULENT CON- N. Y., 61; 47 Barb., 618. VEYANCE. N. Y. COURT OF APPEALS. Where jurisdiction of a court of equity is once acquired, such court, as a general rule, has the right to Bergen, respt., v. Snediker et al., proceed and do justice between all applts. Decided Dec. 9, 1879. An order of General Term which imposes costs the parties. King v. West, 10 How., 333, questioned. When a debtor has made a frand of appeal absolutely is a final determination, ulent conveyance of his real estate a subsequent judgment creditor may and therefore appealable. |