wife; and vice versa. In Pennsylvania it is held that relationship takes away what would otherwise be a gambling element in the policy. (81 Pa. St., 154.) Other courts do not go so far. (66 Mo. St., 64.) When the creditor insures the life of debtor, as there is no indemnity there is no subrogation, and he may recover both the debt and the insurance money. The act of a wife's insuring her husband's life is frequently regulated by statute. It depends to some extent on the doctrine of public policy. There is a series of statutes in New York making the policy nonassignable. These have been modified by a late statute allowing assignment by a husband's consent. See laws of 1879, ch. 248. The rule of public policy is, that such policy is for the benefit of the wife, and cannot be insisted on by her creditors. (Smith vs. Quinn, 90 N. Y., 492.) The courts in the various States have reached varying conclusions on the point whether a policy valid in itself can be assigned to one who has no interest. The better opinion is that it can be, as being property or a chose in action and not a contract of indemnity against loss. (85 N. Y., 593.) The assignee simply takes the rights of the assignor. (80 N. Y., 32; 13 N. Y., 31; 20 N. Y., 32.) Also, 11 R. F., 439; contra, 104 U. S., 77. See on this subject 32 Albany Law Journal, 385. L. R., 8 Ch. Div., 519 favors assignment. Also, Life Insurance Act of 1867, 30 and 31 Vic. ch. 144. Also, L. R., 9 Ch. D., 137; L. R., 19 Ch. D., 534. As to selling or giving away the policy, see 1 B. and S., 109.

Emerig on Consolato del Mare.
Ordinance of Louis XIV.

List of other works on this subject will be found in last part of the 48th lecture of Kent.

ACCIDENT INSURANCE.

Accident policies insure one in regard to death or injuries caused by "external, violent, and accidental means"; and the courts have experienced great difficulty in defining these words.

The following are some of the leading cases upon this subject :

Bacon vs. U. S. M. H. Ass. Co., 123 N. Y., 304.

Paul vs. Ins. Co., 112 N. Y., 472. U. S. vs. Barry, 131 U. S., 100, 121. Ins. Co. vs. Clancy, 120 U. S., 527. Healy vs. Mut. Ac. Co., 25 N. E. R., 52 (III.).

THE NEW YORK CITY COURT. §3160. A non-resident of the State, having an office in New York City for the regular transaction of business in person, cannot be required to give security for costs in the City Court. (8 Civ. Pro. Rep., 138.) 83176. The City Court has jurisdiction of any action where the complaint demands judgment for a sum of money only, whatever may be the amount claimed, and its jurisdiction is not defeated if judgment be entered for more than $2,000. This is only an irregularity and the plaintiff may remit the excess and the judgment be amended by order of the court. (8 Civ. Pro. Rep., 60.)

83191. The Court of Common Pleas will not review a discretionary order of the City Court. It is governed by the same. rule that the Court of Appeals follows as to appeals from the Supreme and Superior City Courts. (6 Civ. Pro. Rep., 126; 13 Daly, 349.)

¶ 2. Unless the notice of appeal contains this assent as to judgment absolute, there can be no appeal. If it be omitted, any order or judgment entered by the Common Pleas is without jurisdiction and void. And the defect cannot be amended nunc pro tunc where the assent was purposely omitted and had been constantly refused. (96 N. Y., 512.) 83194. Where the Court of Common Pleas, having affirmed a judgment of the City Court, allows an appeal to the Court of Appeals, such appeal should be in form

from the determination of the Common Pleas and not from the judgment entered in the City Court on the remittitur sent down by the Common Pleas. (98 N. Y., 248.)

Where a judgment of the City Court is affirmed in the Common Pleas, a judg

ment of affirmance cannot be entered in the latter court. That court should remit the papers to the City Court, and if an appeal is allowed to the Court of Appeals, the notice of appeal and undertaking must be filed with the clerk of the City Court, who must transmit the necessary papers to the Court of Appeals. (14 Civ. Pro. Rep., 318.)

EJECTMENT; SUMMARY PROCEEDINGS

TO RECOVER LAND.

§ 1505. Distress for rent being abolished by the laws of 1846, the fifteen days' notice was substituted for a distress or a deficiency of goods whereon to distrain in all cases in which, according to the agreement, a distress was the remedy provided for the collection of unpaid rent (13 N. Y., 299; 39 N. Y., 147.)

In an action of ejectment brought under a lease in fee (Van Rensselaer), which gave a right of re-entry in default of a sufficient distress on the premises, held, that the fifteen days' notice was a condition precedent to maintaining the action. (43 Hun, 371.)

§ 2231. Summary proceedings cannot be resorted to under this section except when the conventional relation of landlord and tenant exists. Thus if a tenant of one

landlord attorns to a stranger, the latter cannot avail himself of summary proceedings. (13 Daly, 275.)

So in a case where a land-owner invited certain persons to come and occupy his premises and let him board with them, held, that he could not use summary proceedings to recover possession. (49 Hun, 346.)

82232, 1. A judgment debtor may ¶ be removed, and all who hold under him under pretense of title acquired from him since the judgment. (84 N. Y., 287.)

§ 2233. An owner of land wrongfully kept out of possession may regain possession peaceably, if he can, and then resist the former occupant's attempt to retake possession. There is no wrongful detainer where the owner's entry was both lawful and peaceable. (73 N. Y., 529.)

§ 2238. A monthly tenant cannot be dispossessed in New York City or Brooklyn for holding over his term (except when it expires May 1st), unless five days before the end of the term the landlord serves a written notice on him that he elects to terminate the tenancy, and that unless the tenant leaves on the last day of the tenancy summary proceedings will be begun. (Laws of 1889, Ch. 357-)

Application was made on the last day of a monthly tenancy. The justice might have made the precept returnable on the day on which it was issued or within not less than three nor more than five days. But he made it returnable the next day, which the Code gives him no right to do. The precept being therefore irregular and there being no appearance of the defendant, no jurisdiction over his person was acquired. (30 Hun, 468.)

§ 2251. "All persons" may be removed from the premises, including an under tenant, though the proceedings for non

payment of rent are only instituted against the tenant. The proper practice in such cases is to make the under-tenant also a party to the summary proceedings under § 2235, and for being so dispossessed without being made a party he has an action against the landlord on the ground of trespass. (8 Daly, 265.)

§ 2265. Injunctions are granted in ejectment cases after judgment, when the landlord is making an oppressive use of the judgment; or when his title to the premises has terminated; or when the tenant has, subsequently thereto, acquired some interest or equity in the subjectmatter which should be protected; or when the judgment was obtained by fraud or collusion; or when the Justice goes beyond his jurisdiction in taking cognizance of the proceedings or while he is acting therein. But no injunction is granted when the questions involved can be determined at law, or when the grounds relied on for an injunction would be available as a defense to the summary proceeding. (4 Civ. Pro. Rep., 159; 11 do. 310; 11 Daly, 205.)

REPLEVIN.

§ 1690. Although a warrant for collection of a tax or assessment under a state statute may have been issued erroneously or irregularly if, on its face it gives the officer authority to collect the tax, &c., replevin cannot be maintained for the property. (72 N. Y., 614; 80 N. Y., 339.) If a tax collector illegally seizes property of A to satisfy the tax of B, A can sue in replevin for its recovery. (80 N. Y., 339.)

§ 1695. If a co-owner of a chattel sells his interest and delivers the whole chattel to the purchaser, the other co-owner cannot sue the purchaser in replevin. (83 N. Y., 552.)

Replevin does not lie for a check which

has been paid and returned to the maker as a voucher. It is functus officio. (70 N. Y., 492.)

For an action of replevin against a purchaser of goods on the ground that they were obtained by fraud, see 42 Hun, 299.

§ 1704. As to the form of the undertaking, see 42 Hun, 557. As to the justification of the sureties, see 102 N. Y., 305. § 1720. As to the mode of alleging ownership, see 1 How. Pr. N. S., 272; 17 J. & Sp., 178.

8 1721. As to the mode of alleging a wrongful taking or detention, see 31 Hun, 529 and 563.

1723. In an action to recover a chattel based on a wrongful detention, a general denial puts in issue both the plaintiff's property in the chattel and the wrongful detention, and the defendant may show title in a stranger, although he does not connect himself with such title. (101 N. Y., 348.)

§ 1726. Where the chattel has not been replevied, its value at the time of trial should be assessed, and not its value at the time it was demanded. Otherwise a new trial should be granted though no exception was taken. (7 Civ. Pro. Rep., 278; 44 Hun, 434.)

ACTIONS BY AND AGAINST CORPORATIONS.

§ 1775. Where the complaint alleges that the plaintiff is a corporation organized under a law of this State, and the answer simply avers that the defendant has no knowledge or information sufficient to form a belief as to the truth of the allegation, the plaintiff need not prove the corporate existence: this is not an "affirmative allegation" that the plaintiff is not a corporation. (93 N. Y., 474; 99 N. Y., 12.)

§ 1778. This section applies to muni

cipal as well as other corporations and is not unconstitutional. (901 N. Y., 431.)

A life-insurance policy is not an evidence of debt for the absolute payment of money upon demand or at a particular time," and is therefore not covered by this section. (88 N. Y., 424.)

§ 1780. A non-resident of this State may be appointed administrator by a New York court, but he is not then deemed a resident by reason of such appointment, and cannot, therefore, sue a foreign corporation in our courts for a cause of action in tort arising outside of this State. Jurisdiction cannot be acquired in such a case by the consent of parties, since defect of jurisdiction as to subject matter cannot be waived. (112 N. Y., 315.)

ACTIONS FOR INJURY CAUSING DEATH.

1902. The cause of action abates upon the death of the wrongdoer, and an action cannot be maintained against his representatives. '(99 N. Y., 258.)

The limitation of two years applies to an action against a foreign corporation. (5 Civ. Pro. R., 76.)

§ 1907. The facts, that the children of the person killed are of full age, are living away from the home of the deceased, and are supporting themselves, do not alone establish that they have sustained no such pecuniary damages as will authorize a recovery. (98 N. Y., 523.)

ASSIGNMENT OF CHOSES IN ACTION.

§ 1910. That a chose in action may be assigned in part, see 104 N. Y., 108. Generally a chose in action which the owner may assign while living will survive after his death, but still assignability and survivorship do not appear, under our present statutes, precisely co-extensive in all cases. (104 N. Y., 613.)

UNINCORPORATED ASSOCIATIONS.

§ 1919. A member of an unincorporated association having a president or treasurer may, as well as a third person, maintain an action against either of these officers. (8 Civ. Pro. Rep., 166.)

8 1922. Plaintiff may bring action

against either president or treasurer or against the members; but when he has brought suit against either of these officers, he cannot sue the members for the same

cause of action until after judgment and the return of an execution wholly or partly unsatisfied. (7 Civ. Pro. Rep., 41.)

CONTEMPT OF COURT.

2273. This section is intended to continue the practice declared in Pitt v. Davison, 37 N. Y., 235, where a judgment was obtained for the specific performance of a contract to convey land, and a certified copy of the judgment was served on the defendant personally, together with a summons to appear before a referee to make the conveyance. These papers having been served personally, as the law requires, since they are papers to bring a party into contempt (see § 802), held that the order to show cause might be served on the defendant's attorney and not on the defendant himself; also that the proceeding was one taken in the action and that the papers might be entitled in the action, and that interrogatories need not be filed. (See 43 Hun, 505.)

2285. Inducing the officers of a corporation to disobey a judgment requiring

a transfer of stock on the books, held, to be a civil contempt and punishable under this section by six months' imprisonment and fine. (113 N. Y., 476.)

JOINT DEBTORS.

1937. This action may be brought against defendants not summoned in the

original action, although the defendants served have appealed and have given the security which under § 1310 stays all proceedings to enforce the judgment appealed from. The second action is not brought to enforce the judgment, but to establish the liability of the defendants not served in the original action, which is not determined by such judgment. (92 N. Y., 581.)

§ 1939. In an action to charge a partner with the amount remaining unpaid on a judgment against his firm, on service against his co-partner alone, held, that he can make the same defenses or counterclaims which he might have made in the original action, if the summons had been served on him therein, and that it was error to hold that the former judgment was conclusive as to the amount. (3 Civ. Pro. Rep., 295.)

The right to object to the judgment refers only to objections going to the val idity and efficacy of the judgment, such as a party to the judgment might make. (103 N. Y., 274.) The statute of limitations is not a good defense unless it would have been so in the original action. (S. C., at page 283.)

SALE OF LAND OF INFANTS, LUNATICS, &C.

2345. The requirements of the statute in regard to the sale of an infant's land must be strictly pursued to make the sale valid. The burden is upon one claiming under a title acquired at such a sale to show by affirmative evidence that every requirement necessary to give jurisdiction has been complied with. There is no presumption of compliance, in the absence of proof. (106 N. Y., 172.)

§ 2348. A contingent remainder in fee is an estate in land which may be directed to be sold under the statute. (105 N. Y., 585.)