next day, and Dec. 9, 1884, was versed, with costs, and demurrer appointed permanent receiver by a sustained, with leave to plaintiff final judgment in said action. to plead anew on payment of

This action is brought to set costs. aside, as fraudulent, the judgment Opinion by Follett, J.; Hardin, of defendant and to recover from P.J., and Boardman, J., concur. it the value of the chattels sold under the execution. Defendant demurred on the ground that there BANKRUPTCY. SALE. was a defect of parties defendant, N. Y. SUPREME COURT. GENERAL because of the non-joinder of the

TERM. SECOND DEPT. Syracuse Iron Works. The de.

Harriet Gignoux et al., plffs., murrer was overruled. Henry A. Maynard, for respts.

v. Mary E. Stafford, deft. Forbes, Brown & Tracy, for Decided Dec., 1886. applt.

Section 9 of the bankrupt law of 1841, Held, Error. The case of Miller providing that all sales by assignees v. Hall, 8 J. & S., 262; 70 N. Y.,

should be made at such times and in such

manner as should be ordered and appoint250, reviews the conflicting decis

ed by the court, did not apply to orders ions and settles the rule that in ac

for private sales, and such a sale made on tions to set aside fraudulent con- an order which did not fix the time is veyances the alleged fraudulent valid. grantor is a necessary party de- Submission of controversy withfendant.

out action. The Atty. Gen. v. The Guardian Plaintiffs and defendant entered Mutual Life Ins. Co., 77 N. Y., 272, | into a written agreement by which which is relied upon, is not in the former agreed to sell and the point. That case was under a latter to buy certain real estate statute which authorized the Su- which was struck down to depreme Court to dissolve the corpo- fendant at public auction. ration, and it having been done Defendant refused to accept a the corporation was no longer in deed on the ground that plaintiffs existence, and could not have been could not convey a good title. made a party. The case at bar was It appears that in 1841 one U. not brought under Ss 1785, 1786,

was seized of the premises in quesCode Civ. Pro., and the Syracuse tion. In that year a creditor's acIron Works had not been dis- tion was brought against him and solved, but is an existing corpo- a receiver appointed to whom he ration, with all of the legal rights delivered an assignment of his of a corporation, and is a neces- property. In 1842 U. was adsary party defendant in this ac- judicated a bankrupt in voluntary tion brought to set aside a judg- proceedings and the assignee in ment and a transfer of its property bankruptcy sold said premises, unhad by its consent.

der an order authorizing him to Interlocutory judgment sell at private sale, “pursuant to




the rules of the court," to one C., to the established practice in the under whom plaintiffs claim. It U.S. Courts and throw doubt over is claimed that the sale by the as- the title of an immense amount of signee was void because the order property that is held by virtue of of the court did not fix the time of such sales, especially when full sale.

effect can be given to the words of W. C. Dewitt, for plffs.

the statute by holding that “the A. W. Gleason, for deft.

appointed ”does not refer to an orHeld, Untenable. Section 9 of der providing for a private sale. the bankrupt act of 1841 provided We think the sale here by the asthat all sales by assignees “shall signee was valid and carried the be made at such times and in such title. manner as shall be ordered and ap- A point is made that the title pointed by the court.” It will be here is in a receiver in chancery, seen at once that if the act in but it does not appear that any question is to be construed so that such conveyance was the court must appoint a time when corded, and it appears that plainthe property should be sold at titfs are bona fide purchasers and private sale the power to sell at have been in exclusive possession private sale is nugatory. No court for twenty years. The title is could appoint a time when prop- good and defendant must take it. erty should be sold at private sale, Judgment for plaintiffs. and hence such a construction can- Opinion by Pratt, J.; Barnard, not be entertained. The whole P.J., and Dykman, J., concur. law upon this subject must be read and all its parts construed in connection with each other. The sec- PENALTY. BUILDING LAWS. tion simply means that when a

N. Y. COMMON PLEAS. GENERAL time is appointed it must be so

TERM. sold, but the court can direct the manner, and if it directs a manner

The Fire Department of N. Y. in which it is impossible to appoint City, respt., v. Phillip Braender, the time the sale is not void." The applt. specific words of the statute can be Decided Dec. 7, 1886. given their full force and meaning A penalty cannot be raised by implication, by applying them to sales ordered but must be expressly created and raised to be made at auction and the time by statute. fixed for such sale to take place. Appeal from judgment of Dis

Smith v. Long, 12 Abb. N. C., trict Court of the city of New 113, has no application, as the sale York. was a public one and the time Defendant submitted to the supcould have been appointed.

erintendent of buildings pursuant It cannot be that the State to s 30, Chap. 456, Laws of 1885, Courts, at this late day, will so in specifications and plans for five terpret a statute as to run counter buildings. They were approved by the superintendent of buildings plaintiff's proposition that beand required that the chimney cause a building does not conform breasts in the party walls of the in some particular with the plans buildings should be twenty-eight and specifications filed and apinches in thickness. Defendant proved, therefore the building has then erected his buildings in com- been erected without filing the pliance with these plans and speci- plans and specifications and profications, except that he built the curing their approval, are in conchimney breasts twenty inches, in- fict with the law as laid down in stead of twenty-eight inches in | Health Department v. Knoll, 70 thickness.

N. Y., 536. In that case it is held The following question is pre- that a penalty must be expressly sented : Is defendant liable to created and imposed by statute a penalty for constructing the and cannot be raised by implicachimney breasts twenty inches in tion. There is no penalty given thickness, when his plans and by the statute for the act comspecifications showed chimney plained of and, therefore, the breasts twenty-eight inches. judgment must be reversed. Chapter 456, Laws 1885, under Opinion per curiam; Van Hoeswhich a penalty is claimed, con- en and Allen, JJ., sitting. tains no provision which fixes the thickness of chimney breasts.

HIGHWAYS. PLEADING. Section 505 provides a penalty for erecting buildings in violation of N. Y. SUPREME COURT. GENERAL the methods of construction re

TERM. FOURTH DEPT. quired by the said Act; and also a

John H. Watrous, respt., v. penalty for any violation of the John W. Shear, Comr. of Highprovisions of the title.

ways, applt. Bartlett, Wilson & Hayden, for

Decided Nov., 1886. applt. W. L. Findley, for respt.

In an action for labor performed upon a

highway plaintiff, upon proving the Held, That no penalty is created

number of days he labored, is presumpand imposed for the non-conform- tively entitled to the statutory compenity to the plans and specifications sation, and is not obliged to prove the filed and approved in the matter

value of his labor.

Where the complaint clearly alleges an of the thickness of chimney

official and not an individual liability breasts. The argument that the the omission of the word “as” between provision of the building laws re- defendant's name and his official title is quiring the filing and approval of

not fatal. plans before building necessarily Appeal from judgment in favor involves a requirement that the of plaintiff. building shall be erected in accord- Action for services performed ance with the approved plans and and material furnished upon a specifications, and a variance there- highway in the town of Kirkwood from is a violation of the act, and under a contract with defendant prove the

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as commissioner of highways

EVIDENCE. of said town. On the trial N. Y. SUPREME COURT. GENERAL plaintiff offered to

TERM. THIRD DEPT. value of his labor, but was

Mary McKay et al., respts., v. met by the objection that it

Allen Lasher et al., applts. was fixed by law, which was sustained. It is now objected that

Decided Nov., 1886. the value of the services was not Chapter 36, Laws of 1880, allowing a comproved.

parison of hands, has not changed the rule Alexander Cumming, for applt.

that none but experts can testify as to

such matters. Scoville & Dewitt, for respt.

Statements of a subscribing witness to a Held, Untenable. Chapter 308, deed by whose testimony its execution Laws of 1880, prescribes that eight was proved that he did not know the hours shall be a day's labor on high

grantor when the deed was executed and

had nothing to do with the transaction, ways, and that the compensation

are inadmissible where the subscribing shall be one shilling an hour, witness is not called at the trial and first which is equivalent to $1 per day, asked whether he has made such statethe sum awarded plaintiff by the

ments. justice. When plaintiff had estab- Action for trespass in cutting lished the number of days he had timber on lots 90 and 91, Garretlabored, presumptively he was en- son tract, Hardenburgh patent. titled to the statutory compensa- | Patrick Clark was the source of tion, and if defendant wished to title. Plaintiffs claimed as his show that plaintiff had failed to sole heirs

sole heirs at law. Defendants earn that sum the burden was up- claimed that Patrick Clark made

a will in 1846 and devised his propThe summons described defenderty to his son James. That ant by his individual name with James and his wife conveyed to the addition of his official title," one Crouch May 4, 1875, and under but the word “as” was not inserted him they claim. Upon this deed between defendant's individual is the main contest, plaintiffs alname and his official title. How- leging it to be a forgery. It was ever the complaint clearly alleges witnessed by one Lawrence and an official and not an individual acknowledged before him; a cerliability, which brings the case tificate of the clerk of N. Y. Co. within Briggs v. Shannon, 73 N. was attached that Lawrence was Y., 292. In Boots v. Washburn, a notary, etc. It was recorded in 79 N. Y., 207, the defendants Ulster Co., in 1882.

It appears were not described in the sum- now that Lawrence was not a mons nor in the complaint as notary when he took the acknowl. commissioners, and the case is not edgment. Further certificates in point.

were endorsed thereon in 1885 and Judgment affirmed, with costs. the execution was proved by Law

Opinion by Follett, J.; Hardin, rence as a subscribing witness beP.J., and Boardman, J., concur. fore Sackett, a notary in New York.

on him.

The deed was admitted in evi- he had made contradictory state dence. One of the plaintiffs, Anna ments. But the difficulty is that Clark, who taught penmanship in in such case the witness must first

, a school, was allowed to testify be asked whether he had made the that upon comparing a note which alleged contradictory statements. was shown to have been signed by Lawrence was not asked this, for James Clark with the signature he was not a witness in the case. to the deed from him to Crouch We do not decide however that the signature to the deed was not Lawrence was in effect defendthat of James Clark.

ant's witness, nor is this settled by M. Schoonmaker, for applts. 2 Wend., 555, as plaintiffs claim. F. L. Westbrook, for respts. The statute allowing a deed ac

Held, That the witness was not knowledged to be recorded may competent and her evidence inad- be abused, but it might also be a missible. Chapter 36, Laws of very serious evil to treat every 1880, allowing this comparison, has witness who had thus proved a not changed the rule that the per- deed out of court as if he were sons who do it must be experts. a witness produced on the trial by Other witnesses can only testify the party offering the deed in evito facts. There is nothing to show dence and as subject to all the that the witness was an expert. 'modes of impeachment to which a 95 N. Y., 73.

witness in court is liable. Against defendant's objection Judgment reversed and new plaintiffs were also permitted to trial granted. prove statements made to others Opinion by Learned, P.J.; by Lawrence, the subscribing wit- Bockes and Landon, JJ., concur. ness, that he did not have anything to do with this transaction of Clark and that he did not know

WILLS. HEIRS. Clark at the time; also by another

N. Y. SURROGATES COURT. witness that he did not know James Clark and had no transac- In re estate of Sigmund Sinztion with him; that he was willing heimer, deceased. to help plaintiffs and would come Decided Dec., 1886. to Kingston on payment of his

Testator by the third article of his will proexpenses. The object of the testi

vided “that all the rest, residue and remony was to discredit Lawrence's

mainder of my property, both real and proof as subscribing witness. The personal, I give, devise and bequeath to view most favorable to plaintiff is

the following parties, namely: $5,000 to

Katie Tems and the balance to my natuto assume that in reality Lawrence

ral heirs." Held, That in the absence of was a witness for defendant by anything in the context of the will, and his proof as subscribing witness,

of any circumstances of the testator or and hence that his testimony (the

the state of his family from which it can

be inferred or suspected that by his use proof before the notary Sackett) of the word “natural” he designed either might be attacked by showing that to enlarge or restrict the meaning which


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