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moving affidavits are substantially true, a satisfactory case was made for granting the motion, the details of which it is not necessary to state.

The order made at Circuit refusing plaintiff's application to postpone the trial does not stand in the way of the motion to open the default taken subsequently at the same Circuit. The moving papers present some material facts in addition to those stated on the ap plication to postpone; and, moreover, the motion to open the default is not to be regarded as an appeal from the order refusing to postpone the trial. 31 Hun, 114; 96 N. Y., 675.

Order affirmed, with $10 costs and disbursements.

Opinion by Smith, P.J.; Barker, Haight and Bradley, JJ., concur.

FORECLOSURE.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

Gheirstein Mead, respt., v. John Brunnemer et al.

Decided Dec., 1886.

Where a person who has purchased prem

ises at foreclosure sale and paid the ten per cent. and signed the usual terms of sale assigns his bid to another person who fails to complete the purchase the assignee takes the responsibility of the broken condition so far at least as to forfeit the ten per cent. in case of a deficiency on the re-sale.

Appeal from order at Special Term denying application of the assignee of a bid at a foreclosure sale to be refunded the sum of $500 paid on the bid.

Plaintiff held a mortgage against defendant Brunnemer. This mortgage was foreclosed and at the sale was purchased by the mortgagor for $5,000. By the terms of sale ten per cent. on his bid was paid. The mortgagor assigned his bid to one Lea and he failed to complete the purchase. Plaintiff resold the property and bid it in himself for $3,500. There was a deficiency of $1,514.19. Lea made no application to the court to be relieved from his bid, nor did his assignor. By the terms of the first sale, upon failure to comply with the conditions of the sale the premises were to be resold and the purchaser was to become liable for the deficiency between the first sale and the subsequent one.

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

Held, No error. An assignee of the bid took the responsibility of this broken condition, at least so far as to be a total loss of the deposit by a deficiency on the second sale. He couldn't take an assignment free from the equitable claim which plaintiff might establish against the fund. 18 N. Y., 575; 10 Paige, 369.

As against the mortgagor the title must be deemed good. He asserted its validity by the execution of his mortgage upon it. He certainly was bound to pay the mortgage upon it given by himself. The formal application of the $500 on the second bid was not such a decisive election as to make plaintiff liable to refund the same to the mortgagor or his assignee. Lea

by the purchase of the bid became a quasi party to the action, and either he or his assignor could have compelled the application by motion. 36 N. Y., 677.

Order affirmed.

Held, Error; the Revised Statutes provide for the filing of personal or chattel mortgages. In the city of New York the proper place is the register's office. In all the other cities of the State and in the

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

CHATTEL MORTGAGE.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

Andrew

Martin, respt., V. Emanuel Rothschild, applt.

Decided Dec., 1886.

The act creating a register of Kings County did not change the Revised Statutes in respect to filing chattel mortgages in those towns of a county outside of the town in which the county clerk's office was kept; and chattel mortgages given by residents of the town of Flatbush are to be filed in the town clerk's office of that town and not in the office of the register of Kings County. Appeal from judgment in favor of plaintiff establishing his right to certain personal property.

Plaintiff claims title to certain personal property by force of a bona fide sale to him thereof by one Samuel Wardell.

Defendant claims that Samuel and John Wardell mortgaged the property to him by a chattel mortgage. The Wardells lived in Flatbush, Kings County, and the mortgage was filed in the town clerk's office of that town. The court held that it should have been filed in the register's office of Kings County.

Morris & Pearsall, for applt.
W. J. Gaynor, for respt.

county clerk's office is kept, the instrument must be filed in the county clerk's office, and in each of the other towns of the State in the office of the town clerk thereof. 3 R. S., 6th Ed., 143, §11.

It would be plain that the office of the town clerk of the town of Flatbush was the proper place to file the mortgage but for the act creating a register for Kings County.

By this act all that part of the duty of the county clerk of Kings County which in the city of New York is required to be done by the register of deeds therein shall be done by register of Kings County, and the clerk of Kings County was forbidden to perform such duties. 1 R. S., 6th, Ed., 944.

The act in question did not change the Revised Statutes in respect to those towns of a county outside of the town in which the county clerk's office was kept. The county clerk of Kings county could not, before the act creating the register was passed, file a Flatbush mortgage, and it is only the duty of the county clerk of Kings County which the register is to perform.

Judgment reversed and new trial granted, with costs to abide event. P.J.;

Opinion by Barnard, Pratt, J., concurs.

POLICE.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

The People ex rel. Hayes v. Thomas Carroll, Commissioner of Police.

Decided Dec., 1886.

Policemen are at all times subject to the rules of the police department and the police commissioner has the right to remove members of the police force for improper conduct when not in uniform and on actual duty.

This proceeding is brought to review the action of respondent in removing relator from the police force.

The relator was a member of the police department of the city of Brooklyn. The respondent is the police commissioner, and by Chap. 863, Laws of 1873, as amended by Chap. 457, Laws of 1881, title 11, § 14, has power to dismiss from the force a policeman who violates the rules of the department. He has also power to dismiss for conduct unbecoming an officer. The relator was charged with an unprovoked assault upon a citizen while he, the policeman, was off duty. He was tried for this offense and dismissed.

on or off duty, for his efficiency depends upon a public respect for his office and a confidence in the action and deportment of the officer. The commissioner thus had jurisdiction over the charge, and he obtained jurisdiction over the officer by his appearance without objection to answer the written charge. 49 N. Y., 303. The charge is sufficiently sufficiently explicit. Even at common law the very words of the statute or rule need not be used. If the substance of the charge be expressed it is good pleading. These proceedings are not such as call for the strict common law rules either of pleading or trial. 98 N. Y., 322; 93 id., 97.

The issue of fact, if the evidence be merely conflicting, does not call for a reversal for that reason. 82 N. Y., 358.

The evidence in this case supports the conclusion of the commissioner.

Judgment affirmed.

Opinion by Barnard, P.J.; Dykman, J., concurs.

CRIMINAL PROCEDURE.

CHARGE.

GENERAL

TERM. FIRST DEPT.

The People, respts., v. Matthew McInerney et al., applts.

Decided Dec. 31, 1886.

Edward F. O'Dwyer, for relator. N. Y. SUPREME COURT. F. A. McCloskey, for respt. Held, No error. It is one of the rules that no policeman shall wilfully abuse and illtreat a citizen. Rule 136. The policeman is at all times subject to the rules. Rule 145. Both rules are necessary and proper. The policeman is to protect the public. He must not be a brawler and fighter, either when Vol. 25-No. 18.

In order to justify the appellate court in ordering a new trial under $527, Code Crim. Pro., when no exception has been taken in the court below, upon the ground that the verdict was against the weight of evidence, it is not sufficient

that the appellate court can see, on the case before it, that the evidence made the case a conflicting or doubtful one, but it must be quite apparent that the verdict was against a substantial and preponderating weight of evidence. Defendants were indicted for assaulting

and robbing the complaining witness. There was no question made but that the complainant had been assaulted, but defendants denied that they had committed the assault. In charging the jury the recorder said: "A citizen, quietly, peaceably and properly upon one of the public streets of this city is felled to the ground and while prostrate assaulted with great brutality by some person or persons. That such a crime as this could be perpetrated in any civilized community, much less in a great city like this, is a matter of some degree of astonishment. But that a crime was committed, and a crime of the character and description of the one I have just alluded to, there can be no question." Held: No error.

Appeal from judgment of the Court of General Sessions convicting defendants of robbery in the first degree.

The complainant was assaulted and robbed in the streets of N. Y., and claimed that the crime was committed by defendants. Defendants on the other hand testified that they did not assault or rob complainant, but came to his assistance upon hearing his outcries, and that the assault and robbery was committed by some person or persons unknown. There was no question of the fact that complainant had been the victim of an assault committed by some one. During his charge the recorder said: "A citizen, quietly, peaceably and properly upon one of the public streets of this city is felled to the ground and while prostrate assaulted with great

brutality by some person or persons. That such a crime as this could be perpetrated in any civilized community, much less in a great city like this, is a matter of some degree of astonishment, but that a crime was committed, and a crime of the character and description of the one I have just alluded to, there can be no question." Defendants' counsel excepted to the last sentence of the portion of the charge above quoted. It was also claimed by defendants in support of the appeal that the verdict was not supported by the evidence.

Howe & Hummel, for applts. R. B. Martine, Dist. Atty., for respts.

Held, That this court has power under § 527 of the Code of Crim. Pro. to review the evidence and order a new trial if it is satisfied that the verdict against the prisoner is against the weight of evidence. 92 N. Y., 554; id., 563.

That, under said section, it is not enough to justify interference with the verdict that the court on the case before it can see that the evidence made the case a conflicting or doubtful one demanding the solution of a verdict to settle the doubt or conflict; but it must be quite apparent that the conflict has been settled by a verdict against a substantial and preponderating weight of evidence; and that it was not so apparent in this case.

That there was no error in the portion of the charge excepted to, for by reading that part of the charge in connection with its immediate context it is shown that

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A provision in the articles prepared by the commissioners that in case any of the portions of road are not completed within the time provided the rights and franchises as to the portion not completed shall be forfeited to the supervisors is a material departure from the requirements of the act.

In this case held that the articles did not sufficiently provide for the plan of construction and enabled petitioner to exercise powers not intended by the act. The mayor, recorder and aldermen of the city of N. Y. compose the board of supervisors of the county.

This was an appeal from an order of General Term, denying a mo

tion made by the petitioner to confirm the report of commissioners appointed by the Supreme Court to determine whether the railways described in a petition ought to be constructed and operated. The report was in the petitioner's favor and the Supreme Court refused to confirm it on the ground that the petitioner had no legal right to construct or operate a railway. The petitioner claimed to have been organized under the Rapid Transit Act. Laws of 1875, Chap. 606.

It was claimed that the "General Surface Act," Laws of 1884, Chap. 252, abrogated the rights of the petitioner.

Robert Sewell, Wm. M. Evarts, E. P. Wheeler and Chas. P. Shaw, for applt.

Wm. C. Trull, Wheeler H. Peckham, A. J. Vanderpoel, A. S. Hutchins, J. M. Scribner and D. J. Dean, for respts.

Held, That prior to the passage of the act of 1884 the formation of companies to construct street railways on the surface to be operated by any other power than animals was authorized by the act of 1875. While it was intended by the act of 1884 to establish a uniform system for the future organization of surface roads, and to prohibit the futureestablishment of such roads under authority of the Rapid Transit Act, yet it was not intended to arrest the operations of a company already organized under that act, or to deprive it of the corporate rights and powers which it had acquired.

The saving clause of the act of 1884 was intended to protect such

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