centre of the street, but by mistake de-
scribed the land by the exterior line only.
The grantee subsequently mortgaged the
entire premises and thereafter the grantor
quit-claimed that portion lying within
the street. Held, That the intention of
the grantor was thereby carried out and
that an objection by a purchaser at the
foreclosure sale that the mortgagor had
no title to the land within the street at
the time the mortgage was given was
without force.-Smyth v. Rowe et al.,
368.
12. A deed of premises was made to a
mother" in trust for " her infant children,
"with power to sell or mortgage without
the appointment of a guardian." She
mortgaged it for her own benefit. On
foreclosure of a prior mortgage, Held,
That the title was vested in the infants;
that the mother had no beneficial inter-
est, and that the infants were entitled to
the surplus.-The Syracuse Sav'gs B'k v.
Porter et al., 510.
13. Plaintiff was the owner of two lots in
the City of N, Y. known as numbers 141
and 143 West 49th street, each twenty-two
feet in breadth and one hundred feet four
inches in depth. A small structure was
built upon the rear of lot No. 141, which
did not cover the whole breadth of the
lot. Subsequently a structure was built
upon the rear of lot No. 143, which cov-
ered the whole breadth of that lot and ex-
tended 5 feet 8 inches over the line of lot
141 and up to the west wall of the struc-
ture upon the latter lot, which formed the
easterly wall of that upon lot 143. The
walls of the building on lot No. 143 were
not keyed to the walls of that upon lot
No. 141, and its beams rested upon piers.
Plaintiff conveyed lot No. 143 by deed, de-
scribing it as 22 feet front and rear by 100
feet 4 in in depth, with the buildings and
improvements thereon together with the
appurtenances. Held, That the grantee
derived no right under this deed to occu-
py the 5 ft. 8 in. of lot 141 over which the
structure upon lot 143 extended. —Grif-
fiths v. Morrison et al., 567.
See EASEMENT; HUSBAND AND WIFE, 3; LIM-
ITATION, 1; MORTGAGE, 10, 13; TRUSTS, 2;
WILLS, 16.
See BANKS, 2; CONVERSION, 7; CORPORA-
TIONS, 12; GUARDIAN, 1; LEASE, 7, 18, 19;
REPLEVIN, 3; USURY, 1.
1. In an action brought by the receiver of
the property of an insolvent firm to en-
force his claims as receiver to an equita-
ble lien upon the assets in the hands of
the assignee of an individual member of
said firm for the benefit of his creditors
for moneys wrongfully withdrawn from
the firm by said individual member while
said firm was insolvent, and to reach the
proceeds of such moneys, so far as the
same can be traced, into the hands of said
assignee, such member of the firm who is
a defendant in the action can be exam-
ined before trial for the purpose of ascer-
taining what particular pieces of property
in the hands of his assignee were pur-
chased with the funds so withdrawn from
the firm, in order to enable the plaintiff to
prepare his complaint; and an order pro-
viding for such examination does not of-
fend against the rule prohibiting a de-
fendant from being examined in such a
proceeding as to any matters which might
criminate him.-Davies v. Fish, 246.
2. The County Judge of the county in which
the venue of an action in the Supreme
Court is laid may order the defendants
residing in such county to be examined
under 870 before him.-Burt v. The
Oneida Community et al., 342.
3. When an action is brought in good faith
to enforce rights to property in which all
the parties are interested, and the defend-
ants retain the custody of all the con-
tracts etc., relating thereto, and plaintiff
is without sufficient information to frame
his complaint, an examination is proper.
-Id.
4. This court will not review the exercise
of the discretion of the Judge as to limit-
ing the examination in the order where
the examination is to be taken before him
and not before a referee.-Id.
DISTRICT COURT.
See PRACTICE, 32.
1. Plaintiff commenced an action against
her husband for separation on the ground
of cruelty. Before issue was joined an
agreement was entered into between them
whereby plaintiff returned to her marital
relations with defendant, and defendant
agreed to pay costs and counsel fee in the
action. Subsequently defendant served
an answer. The action was never form-
ally discontinued. Held, That the court
had jurisdiction to enter an order in the
action compelling defendant to pay plain-
tiff's costs and counsel fee.-Smith v.
Smith, 163.
2. It is improper after the death of a plain-
tiff in an action for divorce for the at-
torney to take further steps in the action
in the name of the deceased plaintiff. The
action dies at the death of such party.-
Hopkins v. Hopkins, 174.
3. An order of reference in a divorce suit
"to hear, try and report to this court with
his opinion," entered upon a stipulation
of the parties made after issue joined to
refer the cause for "hearing, trial and
determination," is to be construed as an
order for the trial and determination of
the issues, and it is the only proper or-
der that could be made by the court.-
Goodrich v. Goodrich, 264.
4. The court, at Special Term, has no power
to review the findings of the referee on
questions of fact and to find the facts
contrary to the findings of the referee;
but if it appears that the proceedings
have been regular, free from fraud or col-
lusion, and that the evidence is sufficient
to uphold the findings of fact, it is the
duty of the court to enter judgment upon
the report. Id.
5. When an action of divorce is commenced
in another State by a husband or wife
resident therein against the other party
at the time residing in this State, service
of the process of the foreign court in this
State upon the defendant will not confer
jurisdiction over the latter's person nor
authorize a judgment dissolving the mar-
riage which will be effectual or operative
beyond the State in whose tribunals it
may have been obtained, and the foreign
court cannot acquire such jurisdiction by
the appearance of the defendant for the
purpose of objecting and alleging the
want of it, and, if such a plea or answer
be overruled, he may still contest the
merits of the action without depriving
himself of the validity of the objection
taken to the jurisdiction of the tribunal
in proceedings brought for the direct pur-
pose of reviewing and correcting the ad-
verse decision; but, when a husband ap-
pears for the above purpose in an action
for a divorce brought against him by his
wife, and judgment is entered therein
affirming the jurisdiction of the court
and dissolving the marriage, such judg-
ment will be a bar to an action for divorce
brought by him against his wife in this
State, and it cannot be impeached for
want of jurisdiction collaterally in the
latter action even though it may be con-
sidered erroneous by the courts of this
State.-Jones v. Jones, 385.
See ALIMONY; MARRIAGE, 2.
1. To constitute an assignment or admeas-
urement of dower by virtue of any agree-
ment or any specific act of the party, it
should be clearly manifest that such was
the intention.-Aikman v. Harsell et al.,
71.
2. Where the entire estate is devised to the
widow charged generally with debts, and
this is not declared to be in lieu of dower,
she is not bound to elect; and her claim
to dower, the estate being insolvent, is
not inconsistent with the vesting of an
immediate interest under the will, and is
not a refusal of the devise.-White v.
Kane, 180.
See ATTACHMENT, 16; NEGOTIABLE PA-
PER,
6.
1. Defendants had an employee arrested for
embezzlement and demanded $2,000 of
his relatives, threatening to send him to
prison unless it was paid. These threats,
in accordance with an understanding
with defendants, was communicated to
the boy's mother, and she, being over-
come by them, executed a mortgage to
defendants. Held, That the mortgage
was void for duress.-Schoener et al v.
Lissauer et al., 480.
2. The ac ion to set aside the mortgage was
not brought until more than six years
after it was given. Held, That the facts
were such that the mortgagor might have
brought the action at once, and that it
was barred by the statute.-Id.
3. One who assumes to act as the legal ad-
viser of another and receives his confi-
dence as such is to be held to the same
accountability for his acts, threats and
conduct by which he secures an advantage
to himself as would be required from an
attorney.-Fisher v. Bishop et al., 574.
4. One W., who had, although not an attor-
ney, acted as the legal adviser of plain-
tiff and his son and had drawn convey-
ances from the son to plaintiff, was also
bondsman for the son, who defaulted and
absconded. W. and B. thereupon by
means of threats that they would set
aside the conveyances as fraudulent pro-
cured from plaintiff a bond and mortgage
to indemnify them for their liability.
Held, That the bond and mortgage were
procured by duress and were void.―Id.
1. Where a grantor conveys a lot upon
which, at the time of the conveyance,
water flows from a spring upon another
lot then owned and retained by the
grantor, the grantee takes as an appurte-
nant the right to have the water flow as
it did at the time of the conveyance to
him; and, as against the grantor, the rule
is not changed because a piece of land in-
tervenes between the land conveyed and
the land retained, through which inter-
vening land the right to take the water is,
by parol license, liable to be revoked by
the owner.-Root v. Wadhams, 11.
1. Under the Code, SS 1496, 1497, the plain-
tiff can now include in the damages for
withholding real property the rents and
profits, or the value of the use and occu-
pation, and in this respect the old rule
is changed.-De Lisle v. Hunt et al., 482.
2. Where the plaintiff served a complaint
demanding only damages for the deten-
tion, and plaintiff died, and the suit had
been pending several years, during which,
as alleged, a large amount of rents and
profits had accrued. Held, that the ad-
ministrator was entitled to revive the
action and serve a supplemental com-
plaint demanding damages for these ac-
cruing rents and profits in addition to the
damages for detention.-Id.
1. A railroad corporation may lease its
property and transfer its management to
a foreign railroad company, even for the
whole term of its existence; and the fact
of such lease does not take from the les-
sor company the right to condemnation
of land for its uses.-In re petition N. Y.,
L. & W. RR. Co. v. The Union Steamboat
Co., 29, 437.
2. The selection of lands for its use is in the
discretion of the corporation, and if the
same is made in good faith and there is a
necessity for acquiring the lands, and the
same are suitable, the courts will not in-
terfere.Id.
3. When there has been no irregularity in
the proceedings taken before commission-
ers appointed under the General Railroad
Act to assess the damages to be awarded
for property taken for a railroad their re-
port will be confirmed as of course. The
legal and appropriate mode of reviewing
and considering the effect of the evidence,
and the proceedings of the commissioners
depending upon it and involving the
merits of the controversy, is by the ap-
peal provided by § 18 of the same act.
The confirmation of the report seems to
be a precedent circumstance to the right
of review provided for by this appeal,
which is not prejudiced in any respect
by this confirmation.-In re petition of
the N. Y. Elevated RR. Co., 146.
4. Where the parties have made a contract
of bargain and sale, leaving the question
of consideration to be decided by certain
commissioners named who are to proceed
under the statute, and the right to appeal
from their decision is reserved, the court
may refuse to appoint the commissioners;
but if it appoints them the court is bound,
as between the parties, to enforce and
carry out the agreement, and cannot, on
setting aside their award, appoint new
commissioners. In re petition of the N.
Y., L. & W. RR. Co. v. Bennett et al., 232.
5. One of the commissioners in condemna-
tion proceedings was proposed by appel-
lants and selected on their suggestion. Af-
ter hearing and report it was discovered
that the commissioner was not a free-
holder. Held, That it was then too late
for appellants to object to the com-
missioner's qualification.In re applica-
tion of the N. Y., W. S. & B. RR. Co. v.
Hart et al., 350.
6. An award made by commissioners to ap-
praise lands required by a railroad com-
pany will not be set aside after confirma-
tion for the failure of the company to pay,
especially when it appears that no de-
mand has been made upon the company
by the land owners and that the latter has
appealed.-In re The N. Y., W. S. & B.
RR. Co. v. Townsend, 429.
7. Where it appeared that soon after the
appointment of a commissioner his son
was made station agent of the company
and was such during the time of his fath-
er's service as commissioner, Held, that
the commission was not impartial and
its report must be set aside.--Id.
8. If the material allegations of the moving
affidavit or verified petition in a special
proceeding are not denied by some counter
affidavit they stand sufficiently proved
for the purposes of an ultimate order; so
held, where the allegation of due incorpo
ration of the petitioner was only met by
an allegation that repliant had no knowl-
edge or information sufficient to form a
belief on the subject.-In re petition of
the N. Y., L. & W. RR. Co. v. The Union
Steamboat Co., 437.
9. Land used by a steamboat company or-
ganized under a charter which does not
make it a common carrier or impose pub-
lic obligations upon it is not so devoted
to the public use as to protect it from
condemnation under the general railroad
act.-Id.
See APPEAL, 8; CONSTITUTIONAL LAW, 2–10 ;
FERRIES, 2.
1. Payment without protest of a claim for
services, e.g. as veterinary surgeon, after
action brought thereon and before the re-
turn day of the summons. does not bar a
subsequent action for damages by reason
of unskillfulness, neglect, etc., in the ren-
dition of the services. Such payment,
etc., at the most is only matter of evi-
dence to go to the jury on the question of
the existence of negligence.—Deeves v.
Lockhardt, 185.
2. M. owned a wagon and thereafter bor-
rowed another of plaintiffs. The latter
wagon he took apart and had removed,
without plaintiffs' knowledge, to the barn
of B. The latter wagon being levied up.
on as the property of M., defendant, hear-
ing that it belonged to plaintiffs, made
inquiry as to this of one of them, who re-
plied that they did not own it. In an ac-
tion by plaintiffs for a conversion, Held,
That plaintiffs were not estopped, unless
the jury found that the plaintiff inquired
of knew or ought to have known from
his conversation with defendant that the
wagon inquired about belonged to plain-
tiffs.-Webster et al. v. Scanlon, 291.
See ATTACHMENT, 15; BAR; EXECUTION, 2;
MARRIAGE, 2; MORTGAGE, 2; SHERIFFS;
SURETYSHIP, 5.
1. When a party gives material evidence
as to extraneous facts which may or may
not involve the negation or affirmation of
the existence of a personal transaction
with a deceased person, the adverse party
may give evidence of extraneous facts
tending to controvert such proof, al-
though these facts may also incidentally
involve the negation or affirmation of
personal communications or transactions.
Lewis v. Merritt, 9.
2. It is only where the party making the
declarations has, at the time of making
them, title to the property that such dec-
larations bind his successor in interest. A
declaration to a stranger is mere hearsay.
-Hutchins v. Hutchins, 44.
3. The meaning of the words "interested
in the event," as used in § 829 of the Code,
should be construed to mean, and limited
in application to, the issue or question as
to which the witness is called to testify.
-Moore et al. v. Oviatt, C8.
4. B. petitioned the court for an order re-
quiring the receiver of an insolvent insur-
ance company to deliver to him certain
paid-up policies of insurance which he
claimed to own and which were in the
hands of said receiver. The receiver re-
sisted the application upon the ground
that such policies had been held by the
company as collateral security for the
payment of a note made by B. Held,
That B. could show by parol evidence
that the money for which the note was
given was not a loan but an advance for
services to be performed, which had been
so performed.-The People v. The Uni-
versal Life Ins. Co., 112.
5. In an action for breach of promise of
marriage, it appeared that defendant had
married another woman, and he was
asked how large a fortune his wife had.
Held, Inadmissible.-Crandall v. Quin,
157.
6. Such acts, conduct and declarations of
defendant down to the trial, as would, un-
der the facts of the case, have a tendency
to limit the damages, may be proved in
his behalf in mitigation of damages.—
Id.
7. Although a question be otherwise proper,
yet when it is asked on a redirect exami-
nation after the court has ruled out simi-
lar questions on the ground that plaintiff
is seeking to reopen his case, and when
the question has already been fully and
fairly answered, it is not error to rule it
out-Moyer v. The N. Y. C. & H. R.
RR. Co., 170.
8. In an action for damages to lands, a wit-
ness was asked their fair market value
before injury. Held, Admissible; that
this did not exclude evidence of a sub-
sequent natural depreciation or the re-
verse not occasioned by the injury.—
Id.
9. Where a party refers the individual with
whom he may be dealing to another per-
son for information, that which may be
obtained in consequence of the reference
is evidence against the party making it.
-Bigler v. Atkins, 201.
10. In an action to recover damages for
alienation of the affections of plaintiff's
wife, the complaint alleging that plaintiff
and his wife were living happily together,
evidence tending to show that they did
not live happily together, that the wife
had no affection for plaintiff, and that he
lost nothing by deprivation of her society
is admissible under a general denial.-
Edwards v. Nichols, 238.
11. In an action on an insurance policy one
defense was that the insured, in contra-
vention of its terms, had mortgaged hay,
a part of the loss, to one S. The testimony
of the insured was taken by commission
partly upon written and partly upon oral
interrogatories. He was asked on the
direct whether he had mortgaged the hay
to S. In answer he explained the trans-
action as being a mortgage of hay not
grown. On cross-examination he admit-
ted that this was the same hay burned in
the ensuing fall. On the trial plaintiff
refused to read this direct interrogatory.
For the defense defendant offered to read
the cross-interrogatories brought out upon
this subject by the direct interrogatories.
The cross-interrogatories began, "When
did you give the bill of sale to S.?"
Plaintiff objected that there was no proof
that such a bill had been given. Upon
this ground the court refused to allow
either the cross or direct interrogatories
on the subject to be read by the defense.
Held, Error, and that the defense were
entitled to read both.-La Bombarde v.
The Agricultural Ins. Co., 248.
12. Whenever the evidence offered comes
within the purview of the statutes relat-
ing to privileged communications it
may be objected to by any one unless it
be waived by the person for whose bene-
fit the statute was enacted. An executor
or administrator of such person cannot
make such waiver.-Westover v.
Etna Life Ins. Co., 318.
13. Acts and declarations of any one con-
spirator, even in the absence of the
others, are competent evidence as against
any one of them.-The People v. Bass-
ford, 348.
14. It is competent to prove that defendant
tried to fabricate evidence for his defense.
-Id.
15. Although the injured party is a wit-
ness and testifies, his exclamations of pain
may be proved and used to corroborate
other evidence and give a more vivid
description of his condition.-Hagen-
locher v. The C. I. & B. RR. Co., 362.
16. In an action for the purchase price of
goods sold through an agent the agent's
letter ordering the goods is admissible for
the purpose of showing that he sent the
order promptly and as agreed.-Griffiths
et al. v. Phelps, 390.
17. The reception of defendant's testimony
in his own behalf, to the effect that a
package of money which he sent by ex-
press in payment for the land in question
was addressed to J., from whom plaintiff
claims title to the land for the pos-
session of which this action was brought,
J. being dead, Held, error.-Stuart v.
Patterson et al., 441.
18. Where witnesses are unable to state the
items composing a stock of goods de-
stroyed by fire and their prices, it is
proper for them to refresh their recollec-
tion by reference to an inventory of the
goods, in the taking of which the wit-
nesses participated, and to a copy of a
statement in the handwriting of one of
them of footings made by both, the orig-
inal having been destroyed.—Ellsworth
et al. v. The Etna Ins. Co., 469.
19. Plaintiff and her sons executed an in-
strument assigning certain life policies
and all their rights therein to defendant's
assignor in consideration of his giving
certain credits on indebtedness to him by
one of the sons, and of his paying off a
mortgage. In an action to reform the
assignment no fraud or mutual mistake
in its execution was alleged. Held, That
parol evidence was not admissible to
show that plaintiff signed it on an assur-
ance that it was intended only as collat-
eral security.-Marsh v. McNair, 518.
See ANIMALS, 1; ASSESSMENTS, 1; ASSIGN-
MENT FOR CREDITORS, 5; CHATTEL MORT-
GAGE, 4; CIVIL DAMAGE ACT, 1; CON-
TRACT, 6, 7, 15; CONVERSION, 8; CORPORA-
TIONS, 2, 10, 17; COUNTY TREASURER;
DEEDS, 2, 4; EXECUTORS, 7, 17; FORG-
ERY, 2; HIGHWAYS, 4, 5; HUSBAND AND
WIFE, 1; LEASE, 4; LIBEL, 1; MALI-
CIOUS PROSECUTION, 7, 8; MUNICIPAL
CORPORATIONS, 5; MURDER, 4-6; NEGLI-
GENCE, 2, 3, 16, 18; NEGOTIABLE PAPER,
5, 9; PARTNERSHIP, 1; PRACTICE, 28, 29;
SALE, 4; SERVICES, 1, 2, 4; TRESPASS, 4,
5; WILLS, 12.
1. In an action where it was doubtful
whether the complaint was framed in con-
tract or on tort, the defendant, at the
trial, denying all of the facts which
sounded in tort, admitted an indebted-
ness for the money sued for, whereupon
plaintiff asked for a direction of the ver-
dict, which was done. Held, That there-
by plaintiff elected to base his action upon
contract and not upon tort. That under
the circumstances if any claim was to be
made that defendant was liable to arrest,
the jury should have been asked to find
whether the money left with defendant
was a special deposit or a loan. That an
execution against defendant's person, un-
der the circumstances, should not be al-
lowed.-Baker v. Baker, 64.
2. A householder cannot, by an executory
agreement, estop himself from the right
to claim the benefit of the statute of ex-
emptions.-Wilder v. Stewart, 93.
3. Even though a clause in a lease making
the personal property to be put on the
premises the property of the lessor as se-
curity for rent may give the lessor a right
to hold exempt property therefor, the
right is lost when he unites other claims
with his claims for rent in the judgment.
-Id.
4. A levy upon sheep includes the wool then
growing and all that may afterwards
grow during the existence of the lien of
the execution, and the lien continues as
well after as before severance of the wool.
Consequently, a subsequent levy upon the
wool, after severance, is subject to the
paramount lien of the levy made upon
the sheep.-Youngs v. Williams, 249.
5. Where the cestui que trust is permitted
|