Page images
PDF
EPUB

Digest.

assignee in bankruptcy-2 Revised Statutes (6th ed.), 392, section 11-United States Revised Statutes, 981, section 5047 - Code of Procedure, section 121. (See Platt agt. Ashman, 32 Hun, 230.)

86. Action to sequestrate the property of a corporation - notice of a motion to appoint a receiver must be given to the attorney general 1883, chapter 378, section 8- when a second receiver of the company may object to the invalidity of the order appointing the first- powers and duties of a receiver appointed in an action for sequestration he takes the corporate property subject to the rights of mortgagees and their receiver notice of motion whom it should be given a judge cannot consider a paper submitted after argument by one party without notice to the other. (See Whitney agt. N. Y. and Atlantic R. R. Co., 32 Hun, 164.)

[ocr errors]

--

to

87. Highway-encroachment upon it certificate of a jury, summoned under section 105 of 1 Revised Statutes, 522- question as to whether an appeal lies therefrom to the county court - Code of Civil Procedure, section 3044. (See Commissioners of Jamaica agt. Van Allen, 32 Hun, 61.)

88. Laying out a private road appeal from the decision of the commissioners of highways - presumption in favor of regularityupon the hearing of a certiorari the record only can be considered -power of the referees appointed by the county judge on such an appeal, to consider the damages of the landowner. (See People ex rel. Cashman agt. Hedden, 32 Hun, 299.)

89. Obstruction in a sidewalk by the erection of an electric-light pole-when the city authorities will not be compelled by mandamus to remove it. (See People ex rel. McManus agt. Thompson, 32 Hun, 93.)

90. Place of trial-power of the court to change it- · Code of Civil Procedure, sections 982, 983, 984, 987. (See Gorman agt. South Boston Iron Co., 32 Hun, 71.)

[ocr errors]

91. Reference- when one should be ordered the referee need not reside in the county in which the venue is laid the referee may be authorized to sit in any county to take testimony. (See O'Brien agt. Catskill Mountain R. R. Co., 32 Hun, 636.)

92. Effect of a general exception to

a referee's conclusions of law. (See Riley agt. Sexton, 32 Hun, 245.)

93. Decision of an issue of fact by a surrogate - he must file findings of fact and conclusions of law Code of Civil Procedure, section 2545-what papers must be presented to the general term on an appeal from his decision. (See Waldo agt. Waldo, 32 Hun, 251.)

94. District attorney-when he inay act as surrogate how the disability of the surrogate and county judge may be inquired into. (See People ex rel. Oakley agt. Petty, 32 Hun, 443.)

[merged small][ocr errors][merged small][merged small]

Digest.

necessary by the form of the complaint-the party recovering upon this issue is entitled to the costs. (See Falkel agt. Moore, 32 Hun, 293.)

98. Criminal law-when an expression of an opinion by the judge, as to the weight of evidence, requires that a new trial be granted-right to convict of larceny on an indictment for robbery. (See People agt. Langton, 32 Hun, 461.)

99. Forgery in second degree - the indictment must allege an intent to defraud Penal Code, section 511incorporation of a foreign bank-how it may be proved on the trial of an indictment for forging its notes the court will take judicial notice of the legal relations existing between foreign countries. (See People agt. d'Argencour, 32 Hun, 178.)

100. Trial of an action at a special term in case of the disability of the surrogate - Code of Civil Procedure, sections 2545, 2486 — requests for findings- power of the justice to allow them to be made after the case has been submitted General Rule No. 32. (See Matter of Chauncey, 32 Hun, 429.)

101. Counter-claim- - when one existing in favor of a part of the defendants may be set up by them. (See Clegg agt. Cramer, 32 Hun, 162)

102. Right of a party defrauded to waive the tort and proceed, or interpose a counter-claim based upon an implied contract against one of several wrong-doers. (See City Nat. Bank agt. Nat. Park Bank, 32 Hun, 105.)

[merged small][ocr errors]
[merged small][ocr errors][merged small]

107. Assessment - right of a party to have it reduced after it has been paid, and to recover the amount of his over-payment in the same action. (See Delano agt. Mayor, 32 Hun, 144)

108. A warrant for the collection of taxes is not invalidated by the omission of the dollar sign before the figures-replevin will not lie where the warrant is regular on its face. (See American Tool Co., agt. Smith, 32 Hun, 121.)

109. Costs-when costs paid in pursuance of an order cannot be taxed by the party paying them after the recovery of a judgment by him. (See Seneca Nation of Indians agt. Iawley, 32 Hun, 288.)

110. Sheriff's fees on a levy and sale-when the plaintiff may compel a taxation of them. (Seo

Digest.

Mallory agt. Reichert, 32 Hun, 86.)

111. Action to determine title to office- right of the successful party to recover damages from the intruder - the salary received is the measure of damages- -a defense cannot be raised on appeal which was not taken below. (See People ex rel Swinburne agt. Nolan, 2 Hun, 612.)

[ocr errors]

112. Claims against the estate of a deceased person over what class of claims the referee has jurisdiction - when he may take and state the account of a special guardian to sell an infant's real estate. (See Skidmore agt. Post, 32 Hun, 54.)

113. Tenants in common of a cropwhat acts of the party in possession do not amount to a conversion-when an action for a breach of contract, and not one of replevin, should be brought. (See Thomas agt. Williams, 32 Hun, 257.)

[merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]

section 99. (See Burgett agt. Strickland, 32 Hun, 264.)

117. Joinder of causes of action - an action for a tort, and an action to recover, as upon an implied contract waiving the tort, cannot be united-Code of Civil Procedure, section 484. (See Teall agt. City of Syracuse, 32 Hun, 332.)

118. Evidence-right of a party to call all his witnesses - when the circuit judge cannot limit the number. (See Reynolds agt. Port Jervis Boot and Shoe Factory, 32 Hun, 64.)

119. It seems, that the party aggrieved, by an order of general term, affirming an interlocutory judg ment, must wait until final judgment is entered, when he may either appeal directly to this court (Code of Civil Procedure, sec. 1336), in which case the appeal will bring up for review only the determination of the general term, affirming the interlocutory judgment, or he may appeal to the general term (sec. 1350), which appeal will bring up for review only the proceedings after the interlocutory judgment, and in case of affirmance he may appeal to this court, which appeal will present for review all the questions of law involved in the whole case. (Raynor agt. Raynor, 94 N. Y., 248.)

120. It seems, also, that where the general term, on appeal from either the interlocutory or the final judgment, grants a new trial, an appeal may be taken to this court (Secs. 190, 191). (Id.)

121. It seems, that a party aggrieved by an interlocutory judgment may also, after entry of the judgment, move for a new trial (sec. 1001) on one or more exceptions contained in a case settled as prescribed (sec. 997), and from the order granting or refusing the motion an appeal may be taken to this court (Sec. 190). (Id.)

Digest.

122. An appellant is simply bound to present his case to the general term upon the case as settled, and to this court upon the same record; he is not bound to print matter proposed by the respondent as an amendment to the case, but disallowed by the trial judge. (Kil mer agt. N. Y. C. and H. R. R. R. Co., 94 N. Y., 495.)

123. Under the provisions of the Code of Civil Procedure (sec. 756 et seq.), where, after issue has been joined in an equity action, the plaintiff transfers his interest, the transferee may move to be substituted as plaintiff; and where, upon such motion, made with due notice to the defendant, an order of substitution is granted without directing supplemental pleadings, or an amendment of the complaint, aside from such substitution, the question as to title in the substituted plaintiff is determined by the order, and may not be raised upon the trial; and this, although defendant made default upon the motion. (Smith agt. Zalinski, 94 N. Y., 519.)

124. A motion for arrest of judgment in a criminal action could not, before the adoption of the Code of Criminal Procedure, and cannot now, be made, save for some defect that appears upon the record it may not be based upon proof by affidavit of facts outside, and constituting no part of the record (Code of Criminal Procedure, sec. 467). (People agt. Kelly, 94 N. Y., 526.)

125. As the act of 1879 (chap. 542, Laws of 1879), amending the provisions of the Code of Civil Procedure (sec. 549) in reference to arrest, by authorizing an arrest in an action on contract where fraud is alleged in the complaint, and declaring that where such an allegation is made, plaintiff cannot recover without proving fraud, by its terms (sec. 2), does not apply to

[blocks in formation]

Digest.

PREFERENCE ON CALENDAR.

1. When an action is brought upon a judgment rendered in a chancery court in the state of Tennessee in an action on a policy of fire insurance on motion for a preference on the calendar:

Held, that the action being against a corporation, and founded upon a judgment, which is an evidence of debt for the absolute payment of money, the right to a preference appears upon the face.of the pleadings, and is absolute without any qualification or condition of any kind. It is a right given by statute, which no court can by rules or otherwise limit or abridge. (McArthur agt. Commercial Fire Insurance Company, ante, 510.)

PUBLIC SCHOOL TEACHERS.

See NEW YORK (CITY OF.) Matter of Gleese, ante, 372.

RAILROADS.

1. When the Tonawanda railroad, extending from Rochester to Attica, was organized, it obtained a charter extending over a period of fifty years. Under this charter and by virtue of the statute, it condemned and took a strip of land running through the plaintiff's farm. Subsequently the road was consolidated with several others, and became the New York Central and Hudson River road, and has ever since continued to use this strip as a part of its roadway. The charter of the New York Central and Hudson River Railroad Company was granted for half a century. The original charter of the Tonawanda railroad has expired and plaintiff brings suit to eject the railroad company and recover possession of the land, claiming that with the expiration of the

charter the land no longer belonged to the railroad company:

Held, that the public use for which the lands were originally taken is still continued, and such use was not limited in time. Although the corporation was at first created only for the term of fifty years, yet the legislature reserved to itself the right at any time to alter, modify or repeal the act.

Held, further, that whilst the plaintiff is the owner in fee of the lands in question, it is subject to a public use by the defendant for railroad purposes, and that the time that the use shall continue is within the discretion of the legislature, and that as the legislature has seen fit to authorize its consolidation with other corporations and to extend its corporate term for the period of five hundred years, such use has not as yet ceased and determined, and consequently the plaintiff cannot re cover. (Terry agt. New York Central and Hudson River Railroad Company, ante, 439.)

See TAXES AND ASSESSMENTS. People on the Relation of the Walkill Valley R. R. Co. agt. Keator et al., ante, 277.

RECEIVER.

1. In an action brought by plaintiff to foreclose a mortgage executed by the railway company to secure the issue of certain bonds, said railway extended in part through the county of Orange, which county was accordingly designated as the place of trial in the action, and a motion was made at a special term, held in that county, for the appointment of receivers of the property of the railway company, and such receivers were appointed. On motion made in the first judicial district by C. and S., owners of bonds issued by the railway company to vacate the order appoint

« PreviousContinue »