executors continued to carry on ground of mere inadequacy of the sum the business for a number of years produced on the sale. in accordance with the provisions

When purchasers at a judicial sale have

sold to bona fide purchasers any portion of the will. In the account filed

of the premises such persons have a right by them they charged against the to be heard on a motion to set aside the income of the life tenants losses

sale. by bad debts, amounts expended

It is well settled, and the rule is distinctly

declared by $ 1533, Code Civ. Pro., that a for personal property worn out or

party having an estate in remainder or used in the business and for ordi- reversion cannot compel a present parti. nary repairs of the real estate. tion and sale of land against the consent

of the life tenant. If, however, the parThese charges were allowed by the

ties are all sui juris, all objection to such surrogate.

sale might be overcome by consent of all Luther R. Marsh, for applt. parties.

A motion to set aside a judicial sale is adMartin J. Keogh, for respts.

dressed to the discretion of the court, and Held, Noerror; that such charges the General Term will not review the exwere properly made upon the in

ercise of such discretion. come of the life tenants by the

Appeal from order of Erie provisions of the will; that it was County Court, denying motion to not necessary that the testator

set aside a judicial sale of real should have expressed in his will property made pursuant to a judgin more specific terms what items

ment in partition. should be deducted. He evidently Defendant Jacob V. Hall was a intended by the language employed life tenant of the premises and to include all losses and expenses plaintiff and the other defendant necessarily incurred in the man

had the remainder of the estate in agement of the estate and the con

the land. The action was partition. duct of the business.

The premises were sold, the life Order of General Term, affirm

tenant was paid from the proceeds ing decree of surrogate, affirmed. the estimated value of his estate, Opinion by Miller, J. All con- and the residue was paid into court

for the other parties, who were infants. This sale was made Dec.

10, 1881, and the proceedings for JUDICIAL SALE. PARTITION.

the motion were taken in Feb., N. Y. SUPREME COURT. GENERAL

GENERAL 1886, and the motion heard in TERM. FIFTH DEPT.

April, 1886, in behalf of the infant

parties. The motion was denied, Laura A. Prior, by guardian, and Laura E. and Thomas Prior applt., v. Thomas E. Prior and Ja appeal. cob V. Hall, respts.

Roberts, Alexander & Messer, Decided Oct., 1886.

for applts.

0. 0. Cottle, for respt. Ordinarily when the question of adequacy of price is a disputed one of fact a judi

Held, Ordinarily when the quescial sale will not be set aside on the tion of adequacy of price is a dis


puted one in fact, a judicial sale The motion papers show that will not be set aside on the ground portions of the premises have been of mere inadequacy of the sum sold by the purchasers at the judiproduced on sale.

cial sale by other parties who have The relation of the parties to purchased in good faith and made the land which was sought to be improvements on them. These partitioned in this action comes parties have a right to be heard; within the provisions of § 1533,

and as it is evident that the facts Code Civ. Pro., but the direction would not be undisputed this is to sell and the sale are not void, not a proper case to be disposed of because the court had jurisdiction on affidavits. of the subject matter of the action There is another difficulty in the and of the parties thereto. 97 N. way of considering the decision of Y., 209.

the motion by the County Court. It is well settled, and the rule That court was called upon to exdistinctly declared, that a party ercise its discretion. . This court having an estate in remainder cannot review the discretion of cannot compel a present partition that court. and sale against the consent of the Order affirmed. life tenant. 66 N. Y., 37; 63 How. Opinion by Bradley, J.; Smith, Pr., 408.

P.J., Barker and Haight, JJ., conAnd therefore when a partition cur. cannot be made between those having an estate in remainder or VARIANCE. WASTE. reversion the action should proceed N. Y. SUPREME COURT. GENERAL no further. In this case the sale

TERM. SECOND DEPT. of the entire estate in the land was directed, and the life tenant

Elizabeth Stillwell, exrx., respt., does not object, but consents to

v. August Zinsser, applt. take a gross sum ascertained by Decided Dec., 1886. means of the recognized rules for

The complaint alleged that defendant macomputing the value of life estates

liciously destroyed grass and sod of plainand takes the sum set apart for tiff and took it away, and prayed for rehim. If all the parties had then been

lief under the statute to prevent malicious sui juris the sale might be sup

mischief. She proved the wrongful cut

ting and carrying away. Held, That ported, so far as this question is there was no variance, and that she was concerned, by consent to the sale entitled to recover for the injury to the and distribution. The infancy of

freehold. the appellants, however, presents Appeal from judgment in favor a question which might lead to a of plaintiff. different conclusion. 31 Hun, 183.

Plaintiff's complaint

complaint alleged But without expressing any opin-ownership of a farm in Kings Co., ion upon this question, this case and that defendant maliciously decannot be intelligently disposed of stroyed, injured and defaced the on the proofs before the court. grass and sod of plaintiff and car

d 4.2

ried it away, whereby, under ment consistent with the case Chap. 451, Laws of 1877, he be- made by the complaint and emcame liable, etc., and demanded | braced within the issues. Code damages in $1,000.

Civ. Pro., $ 1207; 90 N. Y., 372. The farm, at the time of the acts Defendant could not have been complained of, was in the posses- surprised, for he was fairly apsion of a tenant who had given de- prised of everything plaintiff fendant license to enter and carry could claim. Neither the comaway the sod.

Defendant's an- plaint nor answer required any swer set up that he had purchased amendment. the sod of said tenant.

Judgment affirmed, with costs. On the trial plaintiff proved her Opinion by Pratt, J.; Barnard, title and the wrongful cutting and P.J., and Dykman, J., concur. carrying away the sod, the amount taken and its value. Defendant moved for a dismissal.

JURISDICTION. AMEND The court ruled that the case did

MENTS. not come within the statute, but N. Y. SUPREME COURT. GENERAL that a cause of action had been TERM. FOURTH DEPT. made out for injury to the free

George A. Fisher, respt., v. hold, and submitted to the jury the

George Dougherty, applt. question of damage to plaintiff's reversionary interest in the prop

Decided Nov., 1886. erty.

The court has power in its discretion to alM. L. Towns, for applt.

low amendment of proceedings had. So Hubbard & Rushmore and J. D.

held where on motion to set aside order

of publication and an attachment plainPray, for respt.

tiff was allowed to file nunc pro tunc Held, No error. Treating all affidavits showing non-residence and dilthe complaint stated about the

igence to serve. statute as surplusage, there was a Appeal from so much of an cause of action stated for injury to order as directs that plaintiff have the reversion. The fact that plain- leave to amend by filing affidavits tiff supposed that the case was nunc pro tunc and that the order within the statute, and so alleged and proceeding be amended to conand prayed for relief accordingly, form thereto; also a motion to diswas wholly immaterial. There miss appeal. was no variance between the com- Plaintiff's complaint stated two plaint and the proofs; she simply causes of action on contract. On failed to prove that the acts were that and an affidavit stating that maliciously done, and therefore the there were no counterclaims, etc., case did not fall within the stat- and upon information and belief ute.

that defendant was not a resident The general rule is, that where of the State, but was a resident of there is an answer the court may Scranton, Pennsylvania, he propermit plaintiff to take any judg- | cured an order of publication on

Vol. 25—No. 9b.

retun 167

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March 25, 1885, and also a warrant We may approve of the exercise of attachnient.

of the power. Defendant having On motion to set them aside, affi- accepted the money paid to comdavits made by plaintiff and one ply with the terms of the order, D. were read, showing the non- and in the discretion of the court residence of defendant and dili. deemed proper, ought not now to gence to find him in the State to be heard to complain of the course serve with summons.

the discretion of the court took. An order was made May 8, 1885, 2 Civ. Pro., 300; 93 N. Y., 93; that on paying defendant $10 Code Civ. Pro., $ 723. plaintiff have leave to amend his It may be remarked that it does proceedings by filing said affida- not appear by the appeal papers vits nunc pro tunc as of March 25, that any rights had intervened beand that the order and other pro- tween March 25 and May 8, 1885, ceedings be amended so as to con- and no question in that regard form thereto, and that being done need be passed upon. the motions denied, but if not mo- Order affirmed, with $10 costs tions to be granted. The $10 was and disbursements, and motion to immediately paid.

Defendant's dismiss denied, without costs. attorney subsequently offered to Opinion by Hardin, P.J.; return it, but it was refused and Boardman and Follett, JJ., conhe still retains it.

cur. E. D. Cummings, for applt. George A. Fisher, in person.

LARCENY. PRACTICE. EVIHeld, No error. We may ob

DENCE. serve that the record brought be. fore us does not indicate any ob

N. Y. COURT OF APPEALS. jection taken in Special Term to The People, respts., v. McCalthe offer to read the affidavit of lum, applt. plaintiff and D. 31 Hun, 424.

Decided Dec. 7, 1886. However, $ 724, Code Civ. Pro.,

The court has a right to reserve the ques. confers upon the court power in

tion of presumption of guilt until all the its discretion to allow an amend- testimony is in, and cannot be called ment of proceedings had. 16 Hun, upon to pass upon abstract theories in

advance. 349; 76 N. Y., 601. In that case

If a charge as a whole conveys the correct the power of the court was dis

rule of law the judgment will not be retinctly declared to grant amend- versed, although detached sentences may ments nunc pro tunc, although it

be erroneous. was said, " such an order is not

Admissions of defendant made after being

told by the officers that she might as operative as against persons who

well own up as they had proof to convict are not parties to the action.” The her and that she might consider herself question before us only relates to under arrest, are admissible. the parties to the action. The court Defendant was indicted for the exercised its discretion and named crime of grand larceny in the first the terms, and plaintiff complied. I degree and convicted of grand larceny in the second degree. She her, and also all the evidence as to was charged with stealing from the admissions made by defendant one H. a trunk containing $550 in that certain tracks testified to money and two pairs of socks. were hers and her daughter's, on Upon the trial the court refused to the ground that they were made bold that upon a presumption that under threats by the officers, and a larceny had been committed no that defendant was told she might presumption can be founded that as well own up as they had proof defendant committed the crime, to convict her, and that she might and that as matter of law no pre- consider herself under arrest. The sumption of guilt can be raised motion was denied. from the possession of stolen prop Held, No error ; that conceding erty, except where the possession that the declarations made by deis conscious and exclusive on the fendant can be regarded as conpart of defendant.

fessions, under the testimony Watson M. Rodgers, for applt. introduced and under $ 395 of the E. C. Emerson, for respt.

Criminal Code, the evidence was Held, No error; that the court competent; that what was said by had the right to reserve the dispo. the officers could not be regarded sition of these questions until the as threats which can be said to entire testimony was in, and could have induced defendant to make not be required to pass upon the any statement as to the alleged abstract questions presented, or to offense. 37 N. Y., 304. deal in abstract theories which The only evidence as to the would not serve to elucidate or amount of money lost was that of explain the case as presented by H., who swore upon his direct exthe testimony.

amination that he lost $540. It If a charge as a whole conveys was claimed that his cross-examto the jury the correct rule of law ination showed that he was uncerupon the question at issue the tain what amount of money was judgment will not be reversed, in fact in the trunk. The court although detached sentences may charged the jury that if they were be erroneous. If the language convinced the value of the propemployed be capable of different erty was over $500 and that deconstructions that one will be fendant took it they might convict adopted which will lead to an af- | her of grand larceny in the first firmance of the judgment unless degree, and if the property taken it fairly appears that the jury was less than $500 and more than were or might have been misled. $25 they might convict her of

Upon the trial a motion was grand larceny in the second demade by defendant's counsel to gree, and if less than $25 the verstrike out all the evidence given by dict might be for petit larceny. one K. in regard to admissions Held, No error. made by defendant after certain Judgment of General Term, afstatements made by an officer to | firming conviction, affirmed.

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