INDEX. ABDUCTION. a 1. The crime of abduction created by § 282, Penal Code, is complete whenever female under sixteen years of age is taken, received, employed, harbored, or used, or caused so to be, for the purpose of sexual intercourse, or for the purpose of marriage; and neither the intercourse nor the marriage need be proved if the purpose of taking, etc., be otherwise shown; but either of them may be proved when it has actually occurred as an element or incident tending to establish the purpose. -The People v. Stott, 245. 2. Upon the trial of an indictment for abduction a witness for the People was allowed to testify that the prisoner upon his examination before the magistrate was shown a certain letter which he admitted that he wrote, and this letter was then received in evidence. Defendant subsequently testified in his own behalf, and admitted that he wrote the letter. Held, That while there might have been an irregularity in the admission of the testimony proving the acknowledgment of the letter by defendant before the magistrate, it was cured by defendant's own testimony which left no doubt of the genuineness of the letter.-Id. 3. Upon said trial a physician was allowed to testify that an examination of the genitive organs of the complainant showed that penetration had taken place and that force had been used to accomplish it. Held, No error.-Id. ACTION. 1. An action at law for damages on sale and conveyance of real property, when there is no covenant, can be supported on the ground of fraud only.-Coyle v. Nies, 556. See ASSESSMENTS, 8, 11, AUCTION; CONSTABLES; CORPORATIONS, 6, 8; GUARDIANS, 4; INJUNCTION, 1; N. Y. CITY, 3; PAYMENT; TENANTS IN COMMON. ADMINISTRATOR. See EXECUTORS. ADVERSE POSSESSION. 1. A party claiming title to lands in New York under an unrecorded deed by adverse possession must prove that it was usually cultivated or improved or protected by a substantial enclosure.-Paige v. Waring et al., 36. It 2. In an action to compel specific performance of a contract to purchase real property in the city of N. Y., it appeared that on July 9, 1818, one M. acquired the title to the property in question and that no conveyance of said property by M. or his heirs was on record, but that there was on record a deed executed by J. B. S. to J. M. S., dated July 17, 1828, purporting to convey said premises. further appeared that J. M. S. and his grantees had paid the taxes upon and been in the undisputed possession of said property since 1840, no claims to any part of said premises or attempts to convey or interfere with them ever having been made by M. or his descendants. Held, That a good title by adverse possession was established and plaintiff was entitled to judgment directing specific performance of the contract.-Bohm v. Fay, 70. 3. The lot in question was fenced on the south to the water, but was open to a highway on the north. Held, Not such an enclosure as the law required to establish adverse possession.-Nelson v. Gridley, 264. 4. What is necessary to constitute a practical location of a boundary line.-Id. AFFIDAVIT. See DEPOSITIONS, 1. AGENCY. 1. A traveling salesman authorized to solicit orders for goods, but not to receive payment therefor, procured defendant's order and forwarded it to his principal, who shipped the goods direct to defendant. About twenty days thereafter the salesman again called to solicit further orders, when defendant, not having received any bill of the goods, nor any communication whatever from the principal, paid the agent for the goods previously delivered. Held, That the agent had apparent authority to receive it.-Scott v. Hopkins, 110. 2. Plaintiff and defendant entered into an agreement whereby plaintiff agreed to solicit subscriptions to a publication issued by defendant and was to receive in compensation for the same the sum of $100 for each subscriber who might take and pay for the complete work, said $100 to be paid in three equal installments upon delivery of the first, sixth and eleventh parts. Plaintiff was also to receive $50 for each subscriber obtained by defendant at his store, payable in three equal installments as aforesaid. The complaint recited said agreement in full, and alleged that plaintiff had procured a number of subscriptions upon which a certain sum as commissions was due and unpaid, and that defendant had received a number of subscriptions at his store upon which a certain amount of commissions was due and unpaid. There was no allegation that the subscribers obtained by plaintiff had taken and paid for the complete work, or that the first, sixth or eleventh parts of the publication had been delivered to any subscriber, nor was there any general allegation that the conditions upon which payment of the commissions was to be made had been fulfilled. Held, That the complaint did not state a cause of action.-Yorston v. Bouton, 141. 3. One B. a director of defendant, purchased goods of, and opened an account with, plaintiff in the name of defendant without authority so to do. B. had contracted with defendant to construct its plant and the goods purchased of plaintiff were used in such construction. The goods were shipped as ordered from day to day for several months to the office of defendant in Jersey City, of which B. was apparently in charge, and were delivered there by carriers. Bills were mailed to defendant with each delivery of goods, and monthly statements were rendered to it and payments were made from time to time apparently by defendant. Subsequently one H. called upon plaintiff and stated that he was now the agent of defendant and would in future attend to the ordering of goods, etc. H. continued the existing account with plaintiff, and payments were subsequently made thereon which were credited generally on the account without objection. H. was conceded to be the agent of defendant. Held, That there was an implied agency in B. which defendant was estopped from denying.-The Electrical Supply Co. v. The Jersey City Electric Light Co., 571. See CONTRACT, 18. ALIMONY. See CONTEMPT, 2; Divorce, 1, 2; SURETYSHIP, 3. AMENDMENT. See ATTACHMENT, 2; PLEADING, 5, 6, 16; SUBMISSION OF CONTROVERSY, 1. ANIMALS. 1. Fines imposed and collected by the city of Cohoes, under and by virtue of its charter, for violation of the act for the prevention or punishment of cruelty to animals, belong to the American Society for the Prevention of Cruelty to Animals, and may be recovered by it, in an action against the city, as for money had and received. The American Soc. P. C. A. v. The City of Cohoes, 229. APPEAL. 1. An order setting aside verdict and for a new trial was reversed by the General Term, and thereafter judgment was entered on the verdict. Held, That the Court of Appeals had jurisdiction of an appeal from such judgment and the order of reversal.-Wiedmer v. The N. Y. Elevated RR. Co., 7. 2. The retention of a notice of argument which is not served the requisite number of days before the time appointed for the hearing is not a waiver of a regular notice.-White v. Boice et al, 21. 3. Even though an order was made without jurisdiction and is void the party against whom it was made has no absolute right to have it set aside on motion, and an order denying such motion is not appealable to the Court of Appeals.-The People ex rel. Brush et al. v. Brown, 130. 4. The fact that plaintiff, respondent, was dead at the time the appeal was argued and decided furnishes no ground for a reargument.-Blake v. Griswold, 181. 5. Upon an appeal from Justice's Court for a new trial in the County Court, the appellant failed to serve a notice of the filing of the undertaking, with a copy thereof, upon the respondent, who, notwithstanding, appeared by an attorney, who served a notice of retainer, afterwards a notice excepting to the sureties, and subsequently a notice of trial and then moved to dismiss the appeal upon the ground of the failure of appellant's sureties to justify. Held, That neither the service of such notice of retainer nor the notice of trial was a waiver of the respondent's right to require such sureties to justify.— Slattery et al. v. Haskin, 190. 6. The acceptance by an appellant of the 7. While the General Term, in a proper 8. An appeal to this court from an affirm- 9. An appeal will not lie directly from an 10. Sufficiency of papers on appeal from 11. If the amount of a judgment exclusive 12. Where the return is a correct copy of 13. An appeal to the Court of Appeals lies 14. Where a motion is made to dismiss an 15. After an appeal from judgment in par- dismissed, and that no waiver or consent 16. Proceedings taken to obviate defects 17. An order of a surrogate requiring an ad- 18. An order of General Term denying mo- See COSTS, 9; CRIMINAL LAW, 8; EXECU- ARREST. 1. Facts sufficient to authorize the granting 2. In an action for libel plaintiff procured court might allow its amendment by the substitution of a proper undertaking and that it was not necessary to vacate the order of arrest on account of the defects of the undertaking.-Bauer v. Schevitch et al., 330. See EXECUTION, 5. ARSON. 1. Defendants, who were husband and wife, were indicted for arson in the second degree. It appeared that a fire, which was without doubt of incendiary origin, took place in premises of which they were the tenants, and upon which there was a policy of fire insurance in the name of his wife. Defendants testified that they left the premises together upon the morning of the day upon which the fire took place; that the husband returned for a moment without his wife to secure an article which he had forgotten; that they did not return again until after the fire had occurred; that they did not place the evidences of incendiarism in the premises and were ignorant of how they came there. The court charged the jury as follows: "There has been no special claim made in reference to the wife in this case. It is claimed by defendant's counsel that they are both innocent; and it is fair to say under the evidence, if one is convicted both should be. There is no evidence that the husband was in the premises alone long enough to create the condition of things which was discovered. Therefore, I say to you that your verdict in this case should be guilty or not guilty as to both defendants. The circumstances are substantially the same as to both." Held, Error.-The People v. McGrath et al., 271. ASSAULT. * * * 1. In an action to recover damages for an assault and battery it is error, for which a judgment in favor of plaintiff will be reversed, for the court to charge the jury that they may allow plaintiff damages for loss of time consequent upon the injuries inflicted upon him by reason of the assault, unless there is some evidence in the case of the value of his time.Kane v. The Manhattan R. Co., 102. 2. In an action for an assault where exemplary damages are claimed, defendant is entitled to prove his belief that his life was in danger.-Hogan v. Ryan, 349. 3. In such an action, where it is claimed that there were two fights, in the second of which plaintiff was injured, but it appeared that the interval between them was only two or three minutes and the parties had not in the meantime aban doned their threatening attitude, Held, That defendant might show the whole transaction.-Id. 4. No recovery can be had, in an action by a married woman for assault and battery and false imprisonment, for money expended by the husband in the employment of a physician and traveling and other expenses in endeavoring to cure his wife of her injuries.-Burnham v. Webster et al., 456. 5. In an action for an assault, where the evidence as to the affray was in direct conflict, defendant was forced to answer whether he had ever been sued for an assault before and whether that plaintiff recovered and whether he had had trouble" with various persons. Held, That the evidence was immaterial and improper; the inquiry should have been directed to specific acts and not to general charges or to the result of a litigation.-Yager v. Person, 540. ASSESSMENTS. 1. The tunnels under Fourth avenue in the city of N. Y., owned by the railroad companies using the same, and the parks in said avenue upon the top of said tunnels and around the openings therein made for ventilation, are not liable to assessment for expense of paving said avenue.-The People ex rel. Dillon et al. v. Gilon et al., 6. 2. No personal liability for the payment of an assessment levied upon real property in the city of N. Y. for street improvements is incurred by the owner of the said property unless he is named in the assessment roll as the owner thereof; and, if said property is sold under foreclosure of a mortgage subject to which it was purchased by the person owning it at the time the assessment was levied, and is bought in by the mortgagee who pays the assessment out of the proceeds, thus causing a deficiency to arise, said mortgagee and the persons against whom the deficiency judgment was entered cannot recover the amount of the said assessment from the owner of the property at the time the assessment was levied.The Mutual Life Ins. Co. et al. v. Sage, 18. 3. Chapter 312, Laws of 1874, does not take away the right to recover back money wrongfully extorted under color of an illegal assessment, and where the assessment has been imposed without jurisdiction it is not essential that it be first vacated to enable the person aggrieved thereby to recover the money paid.-Jex et al. v. The Mayor, &c., of N. Y., 51. 4. Previous to April 30, 1873, certain basins were built in St. Nicholas avenue which were designed to be connected with a sewer therein when such sewer should be laid. The cost of the construction of said basins was defrayed as a part of the work on the avenue, but was charged in the books of the proper department as the expenditure of moneys for building sewers. A sewer was built in this avenue between 122d and 124th streets in 1875, but the basins were not located upon that part of the avenue, and were not connected with said sewer. Held, That the construction of the basins was a separate and distinct matter from that of the sewer, and did not bring the latter work within the exception from the operation and effect of the act of 1873 of all works in progress at the time when such act went into effect, and an assessment for the cost of building said sewer by days work was void. — In re petition of the Female Academy of the Sacred Heart., 74. 5. Chapter 52, Laws of 1852, was made applicable to Worth street in N. Y. City by Ch. 270, Laws of 1874, under which it was graded, and consequently damages could be awarded to owners of such property abutting on Worth street as were injured by the change in the existing grade of said street made under the authority of the act of 1874, and such damages were properly included in the assessment for the work.-In re petition of Miller, 118. 6. On foreclosure of a mortgage the decree directed assessments to be paid out of the proceeds of sale, and a certain assessment was so paid. Plaintiff's intestate, to whom the surplus belonged, procured the vacation of such assessment. That such payment was equivalent to a coercion of law and that plaintiff was entitled to recover the money so paid.Brehm v. The Mayor, &c., of N. Y., 279. Held, 7. The city of New York is not liable for damages arising from illegal and fraudulent conduct of the board of assessors in making awards and assessments under Chap. 729, Laws of 1972; in doing so the board constituted an independent tribunal subject to no control by defendant. -Heiser v. The Mayor, &c., of N. Y., 369. 8. If the action of the board in proceeding to a hearing on a claim for damages without notice was fraudulent, it consti tuted an irregularity merely which could be corrected on certiorari, but afforded no ground for an independent action.-Id. 9. Powers of the authorities of the city of Rochester derived from the provisions of the city charter respecting the laying out and opening of streets and the levy ing of assessments to defray the expense thereof, including damages for land taken for the purposes of the street.Elwood v. The City of Rochester et al., 387. 10. The Buffalo Cemetery Association is not exempt from an assessment levied to defray the expense of paving one of the public city streets leading to and in front of lands used and occupied by said association under its charter.-The Buffalo Cemetery Ass'n v. The City of Buffalo, 433. 11. An assessment upon real property in the city of N. Y. which is absolutely void may be disregarded and an action to recover back money paid thereon may be maintained against said city without first having said assessment vacated in a proceeding taken for that purpose.Burke v. The Mayor, &c., of N. Y., 502. 12. When the complaint in such an action contains appropriate averments for the recovery of the money so paid, it is not demurrable under § 897 of Chap. 410, Laws of 1882, because it demands that the assessment be vacated as well as that the money be repaid.-Id. ASSIGNMENT. 1. In an action of interpleader the answer of one defendant set up that the other defendant gave him an order on plaintiff for a portion of the money due him on a contract and that plaintiff accepted the same, but refused to pay on demand, and asked judgment for the amount of said order. Held, That it set up a good defense to the complaint; and that the drawing and acceptance of the order constituted an assignment of the sum expressed therein.-The Yonkers Gaslight Co. v. Taylor, 220. 2. A claim for overpayment on purchase of a bond and mortgage is assignable. - The First Presb. Soc. v. Ayer, 402. 3. Plaintiff, who was an attorney and counselor-at-law, entered into an agreement in writing with one U, whereby it was agreed that for his services in endeavoring to collect certain claims against persons named in said agreement he was to have one-third of whatever amount of money, securities or property should be collected or in any way realized or received (whether on settlement or without settlement) on account of such of said claims as should be put in suit. Held, That such agreement amounted to an equitable assignment of one third of certain securities received in settlement of one of said claims which had been put in suit.-Fairbanks v. Sargent, 488. |