moving affidavits are substantially Plaintiff held a mortgage against true, a satisfactory case was made defendant Brunnemer. This mortfor granting the motion, the de- gage was foreclosed and at the tails of which it is not necessary sale was purchased by the mortto state.

gagor for $5,000. By the terms of The order made at Circuit refus- sale ten per cent. on his bid was ing plaintiff's application to post-paid. The mortgagor assigned his pone the trial does not stand in bid to one Lea and he failed to the way of the motion to open the complete the purchase. Plaintiff default taken subsequently at the resold the property and bid it in same Circuit. The moving papers himself for $3,500. There was a present some material facts in ad- deficiency of $1,514.19. Lea dition to those stated on the ap


application to the plication to postpone ; and, more- court to be relieved from his bid, over, the motion to open the de- nor did his assignor. By the terms fault is not to be regarded as an of the first sale, upon failure to appeal from the order refusing to comply with the conditions of the postpone the trial. 31 Hun, 114; sale the premises were to be re96 N. Y., 675.

sold and the purchaser was to beOrder affirmed, with $10 costs come liable for the deficiency and disbursements.

between the first sale and the subOpinion by Smith, P.J.; Barker, sequent one. Haight and Bradley, JJ., concur.

Elbert Crandall, for applt.
John J. Mead, for respt.

Held, No error. An assignee of

the bid took the responsibility of N. Y. SUPREME COURT. GENERAL

this broken condition, at least so TERM. SECOND DEPT.

far as to be a total loss of the de

posit by a deficiency on the second Gheirstein Mead, respt., v. John saie. He couldn't take an assignBrunnemer et al.

ment free from the equitable claim Decided Dec., 1886.

which plaintiff might establish Where a person who has purchased prem- against the fund. 18 N. Y., 575; ises at foreclosure sale and paid the ten

10 Paige, 369. per cent. and signed the usual terms of

# As against the mortgagor the title sale assigns his bid to another person

must be deemed good. He asserted who fails to complete the purchase the assignee takes the responsibility of the

its validity by the execution of his broken condition so far at least as to for- mortgage upon it. He certainly feit the ten per cent. in case of a deficien- was bound to pay the mortgage cy on the re-sale.

upon it given by himself. The Appeal' from order at Special formal application of the $500 on Term denying application of the the second bid was not such a deassignee of a bid at a foreclosure cisive election as to make plaintiff sale to be refunded the sum of $500 liable to refund the same to the paid on the bid.

mortgagor or his assignee. Lea by the purchase of the bid became Held, Error; the Revised Statutes a quasi party to the action, and provide for the filing of personal or either he or bis assignor could have chattel mortgages. In the city of compelled the application by mo- New York the proper place is the tion. 36 N. Y., 677.

register's office. In all the other Order affirmed.

cities of the State and in the Opinion by Barnard, P.J.;

P.J.; towns of the State in which a Pratt, J., concurs.

county clerk's office is kept, the instrument must be filed in the

county clerk's office, and in each of CHATTEL MORTGAGE.

the other towns of the State in

the office of the town clerk thereN. Y. SUPREME COURT. GENERAL

of. 3 R. S., 6th Ed., 143, $11. TERM. SECOND DEPT.

It would be plain that the office Andrew Martin, respt., V. of the town clerk of the town of Emanuel Rothschild, applt. Flatbush was the proper place to Decided Dec., 1886.

file the mortgage but for the act

creating a register for Kings The act creating a register of Kings

County did not change the Revised County. Statutes in respect to filing chattel mort- By this act all that part of the gages in those towns of a county outside

duty of the county clerk of Kings of the town in which the county clerk's

County which in the city of New office was kept; and chattel mortgages given by residents of the town of Flat- York is required to be done by the bush are to be filed in the town clerk's register of deeds therein shall be office of that town and not in the office

done by register of Kings County, of the register of Kings County.

and the clerk of Kings County Appeal from judgment in favor was forbidden to perform such of plaintiff establishing his right duties. 1 R. S., 6th, Ed., 944. to certain personal property.

The act in question did not Plaintiff claims title to certain change the Revised Statutes in repersonal property by force of a spect to those towns of a county bona fide sale to him thereof by outside of the town in which the one Samuel Wardell.

county clerk's office was kept. Defendant claims that Samuel The county clerk of Kings county and John Wardell mortgaged the could not, before the act creating property to him by a chattel mort- the register was passed, file a gage. The Wardells lived in Flat- Flatbush mortgage, and it is only bush, Kings County, and the the duty of the county clerk of mortgage was filed in the town Kings County which the register clerk's office of that town. The is to perform. court held that it should have

Judgment reversed and been filed in the register's office trial granted, with costs to abide of Kings County.

event. Morris & Pearsall, for applt. Opinion by Barnard, P.J.; W.J. Gaynor, for respt.

Pratt, J., concurs.


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on or off duty, for his efficiency

depends upon a public respect for N. Y. SUPREME COURT. GENERAL

his office and a confidence in the acTERM. SECOND DEPT.

tion and deportment of the officer. The People ex rel. Hayes v. The commissioner thus had jurisThomas Carroll, Commissioner of diction over the charge, and he obPolice.

tained jurisdiction over the officer Decided Dec., 1886.

by his appearance without objec

tion to answer the written charge. Policemen are at all times subject to the

49 N. Y., 303. The charge is rules of the police department and the police commissioner has the right to re

sufficiently explicit. Even at move members of the police force for im. common law the very words of the proper conduct when not in uniform and

statute or rule need not be used. on actual duty.

If the substance of the charge be This proceeding is brought to re- expressed it is good pleading. view the action of respondent in These proceedings are not such as removing relator from the police call for the strict common law force.

rules either of pleading or trial. The relator was a member of the 98 N. Y., 322; 93 id., 97. police department of the city of The issue of fact, if the evidence Brooklyn. The respondent is the be merely conflicting, does not police commissioner, and by Chap. call for a reversal for that reason. 863, Laws of 1873, as amended by 82 N. Y., 358. Chap. 457, Laws of 1881, title 11, The evidence in this case sup

14, has power to dismiss from the ports the conclusion of the comforce a policeman who violates missioner. the rules of the department. He Judgment affirmed. has also power to dismiss for con- Opinion by Barnard, P.J.; Dykduct unbecoming an officer. The man, J., concurs. relator was charged with an unprovoked assault upon a citizen while he, the policeman, was off

CRIMINAL PROCEDURE. duty. He was tried for this of

CHARGE. fense and dismissed.

Edward F. O'Dwyer, for relator. N. Y. SUPREME COURT. GENERAL F. A. McCloskey, for respt.

TERM. FIRST DEPT. Held, No error. It is one of the

The People, respts., v. Matthew rules that no policeman shall wil McInerney et al., applts. fully abuse and illtreat a citizen. Rule 136. The policeman is at all

Decided Dec. 31, 1886. times subject to the rules. Rule In order to justify the appellate court in 145. Both rules are necessary and

ordering a new trial under $527, Code

Crim. Pro., when no exception has been proper. The policeman is to pro

taken in the court below, upon the tect the public. He must not be ground that the verdict was against the a brawler and fighter, either when weight of evidence, it is not sufficient

Vol. 25—No. 18.


that the appellate court can see, on the brutality by some person or perbefore it, that the evidence

sons. That such a crime as this made the case a conflicting or doubtful

could be perpetrated in any civilone, but it must be quite apparent that the verdict was against a substantial and

ized community, much less in a preponderating weight of evidence. great city like this, is a matter of Defendants were indicted for assaulting some degree of astonishment, but

and robbing the complaining witness. that a crime was committed, and a There was no question made but that the

crime of the character and descripcomplainant had been assaulted, but defendants denied that they had committed

tion of the one I have just alluded the assault. In charging the jury the re- to, there can be no question.” Decorder said: “A citizen, quietly, peaceably fendants' counsel excepted to the and properly upon one of the public last sentence of the portion of the streets of this city is felled to the ground and while prostrate assaulted with great charge above quoted. It was also brutality by some person or persons. claimed by defendants in support That such a crime as this could be per- of the appeal that the verdict was petrated in any civilized community,

not supported by the evidence. much less in a great city like this, is a

Howe & Hummel, for applts. matter of some degree of astonishment. But that a crime was committed, and a

R. B. Martine, Dist. Atty., for crime of the character and description of respts. the one I have just alluded to, there can Held, That this court has power be no question.” Held: No error.

under $ 527 of the Code of Crim. Appeal from judgment of the Pro. to review the evidence and Court of General Sessions convict-order a new trial if it is satisfied ing defendants of robbery in the that the verdict against the first degree.

prisoner is against the weight of The complainant was assaulted evidence. 92 N. Y., 554 ; id., 563. and robbed in the streets of N. Y., That, under said section, it is not and claimed that the crime was enough to justify interference committed by defendants. De- with the verdict that the court on fendants on the other hand 'testi- the case before it can see that the fied that they did not assault or evidence made the case a conflictrob complainant, but came to his ing or doubtful one demanding the assistance upon hearing his out-solution of a verdict to settle the cries, and that the assault and rob- doubt or conflict ; but it must be bery was committed by some per- quite apparent that the conflict son or persons unknown. There has been settled by a verdict was no question of the fact that against a substantial and preponcomplainant had been the victim derating weight of evidence; and of an assault committed by some that it was not so apparent in one. During his charge the re

this case. corder said: “A citizen, quietly,

That there was no error in the peaceably and properly upon one portion of the charge excepted to, of the public streets of this city is for by reading that part of the felled to the ground and while | charge in connection with its improstrate assaulted with great i mediate context it is shown that


“the crime just alluded to" was tion made by the petitioner to conthe felling to the ground and the firm the report of commissioners assaulting with great brutality of appointed by the Supreme Court a citizen quietly, peaceably and to determine whether the railways properly upon one of the public described in a petition ought to be streets. That this occurred was constructed and operated. The renot in dispute and therefore the port was in the petitioner's favor learned recorder committed no and the Supreme Court refused to error in speaking of the assault confirm it on the ground that the which no one denied had been petitioner had no legal right to committed by somebody as construct or operate a railway. brutal and alarming crime.

The petitioner claimed to have been Judgment affirmed.

organized under the Rapid Transit Opinions by Davis, P.J., and Act. Laws of 1875, Chap. 606. Daniels, J.; Brady, J., concurs. It was claimed that the “Gen

eral Surface Act," Laws of 1884,

Chap. 252, abrogated the rights of RAPID TRANSIT. N. Y. CITY.

the petitioner.

Robert Sewell, Wm. M. Evarts, N. Y. COURT OF APPEALS. E. P. Wheeler and Chas. P. Shaw, In re petition of the N Y. Cable

for applt.

Wm. C. Company, applt., v. The Mayor,

C. Trull, Wheeler H. etc., of N. Y., respt.

Peckham, A. J. Vanderpoel, A. S.

Hutchins, J. M. Scribner and D. Decided Dec. 17, 1886.

J. Dean, for respts. The rights of a company formed under the Held, That prior to the passage of Rapid Transit Act are not abrogated by.

the act of 1884 the formation of comChap. 252, Laws of 1884. A substantial compliance with the material panies to construct street railways

requirements of the rapid transit act is a on the surface to be operated by any condition precedent to a valid incorpora- other power than animals was aution under it.

thorized by the act of 1875. While A provision in the articles prepared by the commissioners that in case any of the

it was intended by the act of 1884 portions of road are not completed with

to establish a uniform system for in the time provided the rights and the future organization of surface franchises as to the portion not com

roads, and to prohibit the future pleted shall be forfeited to the supervisors is a material departure from the require

establishment of such roads under ments of the act.

authority of the Rapid Transit Act, In this case held that the articles did not yet it was not intended to arrest sufficiently provide for the plan of con

the operations of a company alstruction and enabled petitioner to exercise powers not intended by the act.

ready organized under that act, or The mayor, recorder and aldermen of the to deprive it of the corporate

city of N. Y. compose the board of rights and powers which it had supervisors of the county.

acquired. This was an appeal from an or- The saving clause of the act of der of General Term, denying a mo- 1884 was intended to protect such

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