PEOPLE v. KING et al. (Common Pleas of New York City and County, General Term. August 9, 1893.) Action by the people of the state of New York against Emma King, as principal, and Jacob Klinger, as surety, on a forfeited bail bond, in which there was a judgment for plaintiffs, and defendants moved to vacate such judgment. Argued before BISCHOFF and GIEGERICH, JJ. Burritt S. Stone, for surety. Delancey Nicoll, for the People. SWEENEY, Appellant, v. REDMOND, Respondent. (Common Pleas of New York City and County, General Term. August 9, 1893.) Appeal from first district court. Action by John V. Sweeney against Ellen Redmond for compensation for serv ices as a physician and surgeon. From a judgment for defendant, plaintiff appeals. Affirmed. Argued before BISCHOFF and GIEGERICH, JJ. T. E. Tomlinson, (Daniel T. Kimball, of counsel,) for appellant. PER CURIAM. The questions presented for solution on this appeal are only those involving facts, in respect whereof there is a conflict of evidence. Careful consideration of the evidence satisfies us that the decision of the justice was in all respects correct, and therefore the judgment should be affirmed, with costs. NIXON, Respondent, v. ZURICALDAY et al., Appellants. (Superior Court of New York City, General Term. July 3, 1893.) Action by George F. Nixon against Aquilino Zuricalday and others. From a judgment entered on a verdict given by direction of the trial judge, and from an order denying a motion for a new trial, defendants appeal. Olcott, Mestre & Gonzales, (James L. Bishop, of counsel,) for appellants. Arnoux, Rich & Woodford, (William H. Arnoux, of counsel,) for respondent. PER CURIAM. Judgment and order appealed from are affirmed, with costs. on opinion filed by the learned court below. 24 N. Y. Supp. 121. ROTHSCHILD, Appellant, v. ZUCKER, Respondent. (Superior Court of New York City, General Term. July 3, 1893.) Action by Jacob Rothschild against Alfred Zucker. From an order directing bill of particulars, plaintiff appeals. Argued before FREEDMAN and GILDERSLEEVE, JJ. S. F. Rawson, for appellant. Freeman & Green, for respondent. PER CURIAM. The order should be affirmed, with $10 costs and disburse ments. (4 Misc. Rep. 454.) DAVIS, Respondent, v. DAVIS, Appellant. (Superior Court of Buffalo, General Term. July 14, 1893.) Action by Joshua Davis against Mary Davis for divorce. Cuddeback, Kenefick & Ouchie, for appellant. M. E. Gearon, for respondent. PER CURIAM. This is an appeal from a judgment entered upon the report of a referee in an action for divorce on the ground of adultery. We think the judgment in this case must be reversed for errors in the admission of evidence on the trial. Considerable evidence was taken under objection, and clearly the rulings of the referee cannot be sustained. It is insisted by the counsel for the respondent that the evidence is immaterial, and that the errors are consequently harmless. While we recognize and give full force to the rule that a new trial should not be awarded in actions for divorce unless for substantial error, showing that a fair trial has not been had, and affording reasonable doubt as to the justice of the result, (Forrest v. Forrest, 25 N. Y. 501,) yet we do not think that it can be fairly said that no force was given to the testimony improperly admitted, or that it was harmless. The proof of the commission of the adultery of the defendant is not at all conclusive, and of such a satisfactory character as carries conviction to the mind. The defendant denies the adultery, and the plaintiff's witnesses are disputed in many particulars, and the proof of plaintiff's previous conduct must have exercised a considerable influence on the mind of the referee in determining where the truth rested. As was said in one case, the defendant was not being tried for her general conduct, but on specific charges. The testimony had no tendency to establish either of the charges, and the plaintiff had not the right to show general or specific conduct of the defendant. Beadleston v. Beadleston, (Sup.) 2 N. Y. Supp. 809. We think, for the reasons above stated, the judgment should be reversed, and a new trial ordered, with costs to abide the further order of this court. All concur.. [END OF CASES IN VOL. 24] INDEX. ABATEMENT AND REVIVAL. Another action pending. Accident. At crossings, see "Railroad Companies." 2, 3. 1. A suit to enforce a lien may be main- 2. The pendency of an action involving or inconsistent with another action must be Account. pleaded in order to be made available as a Reference in case of, see "Reference," 1-3. defense.-James v. Work, (Sup.) 24 N. Y. S. 149. Evidence. ABDUCTION. 1. On the prosecution's theory in a prosecution for abduction, that other persons were acting in concert with defendant in the abduction charged, complainant's conversations with one of such persons, and the surrounding circumstances, in view of and pending the alleged "enticement," were competent evidence.-People v. Brown, (Sup.) 24 N. Y. S. 1111. Accounting. Between cotenants, see "Tenancy in Common." Accumulation of Income. 2. On a prosecution for abduction, com- See "Wills," 26-29. plainant's testimony that defendant's alleged accomplice proposed that they all sleep together, and defendant said he would not, was competent in proof of defendant's purpose to sleep with complainant, as he did.-People v. Brown, (Sup.) 24 N. Y. S. 1111. Corroboration of female. 3. Under Pen. Code, § 283, forbidding a conviction for abduction on the sole testimony of the female abducted, the corroborative effect of other evidence of "enticement" is for the jury.-People v. Brown, (Sup.) 24 N. Y. S. 1111. Instructions. 4. On a prosecution for abduction, whether the enticement was effected by defendant alone, or by concert with other persons in conspiracy with him, was a question for the jury; and instructions that in order to convict they must find such a conspiracy, and that they could not find from the evidence that defendant alone enticed complainant, were properly refused. People v. Brown, (Sup.) 24 Ñ. Y. S. 1111. Acceptance. Of goods, see "Sale," 1. Of tender, see "Tender," 2. Accession. See "Trover and Conversion," 3. v.24N.Y.S.-73 ACKNOWLEDGMENT. See, also, "Limitation of Actions," 5. Evidence as to identity of person making. 1. On an issue as to the execution of an instrument, the officer who certified the acknowledgment testified that he took it at his office, and that he was not certain that the person who acknowledged the instrument was the grantor therein. The signature was not in the latter's handwriting, and it appeared almost certain that when the acknowledgment was taken such grantor was too ill to leave the house, and there was some evidence that she There was, however, evidence that on that date was unable to execute the papers at her home. the grantor acknowledged another writing before the same officer, and her physician testified that she was then able to execute papers. Held, that a finding by a referee that the paper was duly acknowledged was supported by the evidence.-Albany County Sav. Bank v. McCarty, (Sup.) 24 N. Y. S. 991. Effect-Presumption raised. 2. The acknowledgment of an instrument raises a presumption of its due execution.— Albany County Sav. Bank v. McCarty, (Sup.) 24 N. Y. S. 991. (1153) ACTION. See, also, "Abatement and Revival;" "Appeal;" foreign corporation, see "Corporations," 17. * * * vested in the courts of the United States in the By stockholders, see "Corporations," 12. Examination before trial, see "Discovery," 1-4 For attachment, see "Attachment," 4, 5. Stay for failure to pay costs, see "Costs," 11. Who may sue. In support of motions, see "Practice in Civil Agency. Alcoholic Liquors. See "Intoxicating Liquors." Alimony. See "Divorce," 1-7. 1. A provision that the sum owing by one of the copartners for merchandise contributed by him to the copartnership shall be paid by the firm will be construed as made for the benefit of the persons to whom such sum is due, and they may sue the firm on such agreement. Spingarn v. Rosenfeld, (Com. Pl. N. Y.) 24 N. Of pleading, see "Pleading," 3, 4. Y. S. 733. Consolidation of Actions. Amendment. Ancient Instruments. Ancillary Administration. 2. Under Laws 1885, c. 342, § 18, provid- See "Ejectment," 2. ing that the court of record which first obtains jurisdiction of an action to foreclose a mechanic's lien may, on the application of the owner or others interested, take to itself for See "Executors and Administrators," 23. trial all subsequently commenced actions of like character, and consolidate them, the city court of New York may consolidate with an Annulment. action brought therein an action subsequently Of marriage, see "Marriage," 2. Adjoining Landowners. See "Boundaries." Adjournment. See "Continuance." Administration. See "Executors and Administrators." ADMIRALTY. Jurisdiction of state courts. Const. U. S. art. 3, § 2, gives the courts of the United States jurisdiction over all cases of admiralty and maritime jurisdiction. Rev. St. U. S. § 711, provides that "the jurisdiction Antenuptial Contracts. See "Husband and Wife," 5. |