CREDITOR'S ACTION

1. Where in an action by a judgment cred.
itor to have certain conveyances declared
void as to him it appears that there is
personal property applicable to the debt,
this should be first taken and applied
by him; and in such case it is error to
direct a conveyance by the fraudulent
grantor and grantees to a receiver and a
sale by the latter.-Vrooman v. Clow et
al., 139.

2. It is not illegal for a debtor to agree to
work for and carry on the business of his
wife and accept compensation_therefor
in the support of his family and mother.
-Scovill v Shed et al., 228.

3. In an action to reach certain mortgages
as property of a judgment debtor it was
claimed that they were transferred to
secure a debt of said debtor. Held, That
letters written by the debtor to his brother
prior to the transfer, acknowledging the
indebtedness and explaining the transfer,
were admissible. — Carpenter v. Jones,
476.

See CHATTEL MORTGAGE, 9; CORPORATIONS,
4; TRUSTS, 4.

CRIMINAL LAW.

1. On a second trial for the same offense, it
is proper to read the evidence of a wit-
ness for the prosecution given on the for-
mer trial, the witness being dead.-The
People v. Penhollow, 49.

2. A witness for the people testified to cer-
tain confessions made to him by the pris-
oner. Held, That the prisoner should
have been allowed to testify fully as to
the alleged interview and conversation
with the witness.-Id.

3. The same witness was asked on cross-
examination, "Did you tell the prisoner
that he was guilty and you knew it?"
Held, That the exclusion of such ques-
tion was error.-Id.

4. While the court may, in its discretion,
allow the jury to visit the scene of the
crime, it is not bound to do so.-The Peo-
ple v. Buddensieck, 125.

5. The court has a right to reserve the
question of presumption of guilt until all
the testimony is in, and cannot be called
upon to pass upon abstract theories in
advance.-The People v. McCallum, 210.

6. If a charge as a whole conveys the cor-
rect rule of law the judgment will not be
reversed, although detached sentences
may be erroneous.-Id.

7. Admissions of defendant made after be-
ing told by the officers that she might as

10. It is not necessary in order to warrant a
conviction upon the testimony of an ac-
complice that the corroboration of such
testimony should be full and complete to
an extent that would of itself warrant
conviction. It is enough that it corrobo-
rates material parts of the testimony re-
lating to the corpus of the offense in such
a way that the jury are justified thereby
in accepting the evidence of the accom-
plice as true.-Id.

11. The Court of General Sessions of the
county of N. Y. does not lose jurisdiction
to pronounce sentence by adjourning sine
die after a conviction of the prisoner when
there is a motion pending on the part of
the prisoner for a new trial and for ar-
rest of judgment, which motion is made
by the prisoner's counsel at the next
term of the court. — Id.

12. 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.-The
People v. McInerney et al., 409.

13. Defendants were indicted for assaulting
and robbing the complaining witness.
There was no question made but that the
complainant had been assaulted, but de-
fendants denied that they had committed
the assault. In charging the jury the re-
corder said: "A citizen, quietly, peace-
ably 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 per-
petrated 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.-Id.
See ABDUCTION; ARSON; BANKS, 5, 6; BLACK-
MAIL BURGLARY; CIVIL RIGHTS; EVI-
DENCE, 6, 7, 15, 29, 30; FORGERY; INDICT-
MENT; JURISDICTION; JURORS; LARCENY;
LIBEL; MURDER; OLEOMARGARINE; SUI-
CIDE.

DAMAGES.

1. In an action for money loaned by plain-
tiff's intestate for defendant's use an item
was allowed which had previously been
allowed as a counterclaim in an action
by defendant's husband against said in-
testate. Held, Error.-Alexander v. Sum-
ner, 218.

See ASSAULT, 1. 4; BANKS, 14; CIVIL DAM-
AGE ACT; CONTRACT, 21, 23; LEASE, 8;
NEGLIGENCE, 6, 10, 11; SERVICES, 5-7, 9;
SLANDER, 1.

DECEDENT'S ESTATE.

1. Defendant's intestate, B., who was trus-
tee of plaintiff's testator, died in 1882, and
L was appointed in his stead. In an ac-
tion to recover stocks claimed to belong to
the estate it appeared that testator had
transferred said stock to B. as collateral;
that B. afterward assigned it to W. as
trustee, who, in 1866, for value, trans-
ferred it to B., and that this was known
to all parties. Held, That the complaint
was properly dismissed; that at the time
of L.'s appointment the estate was not
interested in said stock, B. having ac-
quired a good title to it.- Lockwood et al.
v. Brantley et al, 93.

2. In a special proceeding to determine a
doubtful claim against the estate of a de-
ceased person, the prevailing party is
entitled to recover disbursements as a
matter of right, as provided by § 317 of
the old Code, as that section has not been
repealed.-Hatch et al. v. Stewart, 371.

3. While the statute is very general in re-
spect to claims against deceased persons,
it is broad enough to determine upon a
reference under the statute relative to
claims against deceased persons whether
a creditor was entitled to share with the
individual creditors of deceased or
whether the claim was one against a
partnership which must await the pay-

1. An action brought by plaintiff against
the city to recover damages for the loss
of wharfage, etc., occasioned by the
widening of West street, was settled by
the city agreeing to purchase the rights
of plaintiff in the bulkhead on the west-
erly side of West street and plaintiff's
agreeing to convey the same to the city
free from all incumbrances except such
grants or leases as the city might have
itself made. Held, That taxes assessed
upon said property were not incum-
brances which plaintiff was obliged under
the said agreement to pay off before con-
veying the premises to the city.- James
v. The Mayor, &c., of N. Y., 214.

2. Where a grantor has plainly expressed
in a deed the land conveyed, it is imma-
terial what his intention was -Nelson v.
Gridley, 264.

3. A deed which names the owner by her
attorney as the party of the first part and
in the attestation clause states that she
by her attorney has "set her hand and
seal," signed by M.. attorney for" such
owner, is the deed of the owner and con-
veys a good title.-Robbins v. Austin,
311.

4. A benevolent society which had given a
mortgage on its land procured an order
permitting it to convey to one M. for use
of the Roman Catholic Church. The
order said nothing about an assumption
of the mortgage, but the deed to M con-
tained the usual assumption clause. On
foreclosure of the mortgage, Held, That
M. was liable on his covenant of assump-
tion; that the mortgage debt was in sub-
stance the purchase money which he
agreed to pay directly to the mortgagee
for the relief and discharge of the mort-
gagor.-Gifford v. The Father Matthew
Soc. et al., 323.

5. The owner of a farm purported to convey
to defendant, by an unsealed instrument
in writing, "ninety acres of land situate
on the east side of " a road, and afterward
she conveyed to plaintiff the whole farm

"excepting ninety acres thereof situate
on the east side of said road, which were
conveyed and have recently been used
and occupied by Attridge." Subsequently
she executed a deed to defendant of said
ninety acres and described its boundaries.
Held, That as the parties had selected the
ninety acres and described its boundaries.
it was not within their power to alter
them by a redelivery and alteration of
the deed, or even by the execution of a
new one.-Wilson v. Attridge, 498.

See CONTRACT, 24; EJECTMENT, 1; EVI-
DENCE, 13, 14; HUSBAND AND WIFE, 2, 3;
WILLS, 1.

DEPOSITIONS.

1. Sufficiency of affidavit for examination
of plaintiff after answer for use on the
trial.--Ball v. The Evening Post Pub.
Co., 274.

2. The only purpose for which such an ap-
plication (for the examination) of a de-
fendant after answer under the statute
can be supported is to take a deposition
for use on the trial, by way of defense;
such examination cannot be granted to
obtain admissions or to enable defendant
to prepare a bill of particulars. The fact,
however, that those things are incident-
ally mentioned and referred to in the
affidavit does not necessarily qualify the
legitimate purpose for which the appli-
cation is made.--Id.

3. In such an application to examine an ad-
verse party after issue, it is sufficient if
the purpose to use the deposition on the
trial is fairly inferable from the state-
ments made in the affidavit.--Id.

4. The fact that a party may decline to
testify as to some of the matters involved,
on the ground that his answers might tend
to criminate himself while in that situa-
tion, is not a sufficient reason for deny-
ing the application for such examination.
The party may be fully protected by as-
serting his privilege on his examination.
-Id.

5. The representative of an estate has not
the right under $ 2706-2714, Code Civ.
Pro., to examine a debtor of his decedent
merely for the sake of ascertaining the
nature and amount of such debtor's lia-
bility to the estate.-In re estate of Knit-
tel, 449.

6. The provisions of the sections, supra,
were intended to and do authorize an ex-
amination by such representative of a
person having property of the estate in
his hands, for the purpose of disclosing
same to the end that such person may be
required to deliver such property to the
representative.-Id.

7. A deposit of money in a savings bank be-
comes the property of the bank, and a
representative of an estate cannot prop-
erly require the examination of the presi-
dent of such savings bank in regard to
moneys deposited by his decedent in his
lifetime.-Id.

8. It is not a reason for denying plaintiff's
application for the examination of de-
fendant before trial, when it is made to
appear that the testimony sought is ma-
terial and necessary for plaintiff in
support of his claim, that the evidence
obtained may have an equal tendency to
defeat the defense of defendant.-Sanger
V. Seymour et al., 472.

9. When an order for the examination of
defendant before trial is warranted by the
affidavits upon which application there-
for is made, a mere denial of plaintiff's
rights by affidavits presented on behalf
of defendants will not justify its refusal,
for plaintiff is entitled, if he shall be able
to do so, notwithstanding defendant's
denials, to obtain evidence by their own
depositions that the case alleged in his
favor is well founded upon the facts.-Id.

DEVISEES.

1. Devisees are liable to creditors of the de-
visor to the extent of the estate, interest
and right in the realty descended to them
or effectually devised to them; it is not
necessary that the legal title shall have
passed to them.-Armstrong et al. v.
McKelvey et al., 367.

2. Where devisees have chosen to take their
entire legacies in land they are liable to
creditors in proportion thereto.-Id.

DISCOVERY.

1. A peremptory order compelling produc-
tion of books or papers for examination
and inspection cannot, under the present
Code, be granted ex parte.--Dick et al.
v. Phillips, 29.

2. The general rule governing the granting
of an inspection and discovery of books
and papers is that the object to be in-
spected must relate to the maintenance
of the position taken by the applicant and
not that of the opposite party; and it is
not usual to direct such a discovery in
anticipation of a defense and with a view
to prepare to meet it.--Sanger v. Seymour
et al., 497.

3. When the books and papers sought to be
inspected can be obtained upon the trial
by subpoena duces tecum it is not usual to
require such a discovery, and under such
circumstances it will not be ordered ex-
cept in extreme cases.--Id.

4. An application for discovery of books after issue joined must show that the discovery sought is to aid the applicant to prove his cause of action or defense; where the papers on which the application is made do not allege that the books will furnish evidence which will aid in such purpose the application should be denied.--Stichler et al. v. Tillinghast, 511.

DISORDERLY HOUSE.

See JURISDICTION.

DIVORCE.

1. While the court has power to make allowances to enable a wife to carry on her defense to an action for divorce, she must apply for it when she needs it; where she has made her defense from her own means or upon her own credit there is no authority in the court to grant her an allowance for such past expenses --Beadleston v. Beadleston, 8.

2. An allowance may be made to a wife during the pendency of an action for divorce, for some past expense, if it is shown that the payment was necessary to enable her to carry on the action or her defense; but such fact was not shown in this case. --Id.

3. A husband or wife is competent to testify in favor of the other in an action for an absolute divorce on account of adultery as to other facts than the marriage. Section 831, Code Civ. Pro., renders them incompetent as witnesses to such facts only in their own behalf.--Bailey v. Bailey, 71.

4. In an action for divorce to which defendant makes no defense, the confessions of defendant are always admissible in evidence, but before granting a decree based upon such confessions the court will require such corroboration thereof as to remove all suspicion of collusion, and when that is satisfactorily done the confessions become a sufficient basis for a judgment of divorce.--Madge v. Madge, 339.

5. The jurisdiction of the probate court of Utah is local, and a plaintiff in a divorce suit must reside in the county of the probate judge in such action. Where a petition was filed in the probate court of Utah by a resident of New York and an appearance made by the husand in order to evade our law and to annul a New York marriage for reasons not good in this State no jurisdiction of either was acquired by the Utah court. -Hall v. Hall, 355.

DOWER.

1. To put a widow to her election between dower and a provision in the will, in the absence of express words, there must be a clear incompatibility arising on the face of the will between a claim of dower and a claim to such provision. The mere creation of a trust for the sale of real estate and its distribution is not inconsistent with the existence of a dower interest in the same property.---Konvalinka et al. v. Schlegel et al., 462.

2. Testator devised the residue of his estate to his executors, to be sold by them and the proceeds divided between his wife and children share and share alike. Held, That the widow was not put to her election; that the devise was void as a trust, but valid as a power in trust to sell and divide, and that the lands descended to the heirs subject to the execution of the power.--Id.

At

3. In 1872 plaintiff and her husband mortgaged certain property to a bank for $12,000. In 1877 the husband's executors sold the property subject to the mortgage and accrued interest for $1. The purchaser gave the bank a mortgage for the interest of $2,000 and then sold to one Crosby subject to the $12,000 mortgage, Crosby assuming the $2,000 mortgage Crosby and wife sold a part to defendant. this time the bank released the part from the $12,000 mortgage and credited upon it $4,000, satisfied the $2,000 mortgage, was paid in cash $500 and took a mortgage on the part from defendant for $5,500. Held, That plaintiff was entitled to dower in the part and free from the lien of the mortgages. Everson v. MeMullen, 533.

See CONTRACT, 2.

DRAINAGE.

1. It is not necessary in a petition for the appointment of commissioners under the Drainage Acts to state the point from which the proposed drain shall start or where it shall terminate, or the number or kinds of drains contemplated.-In re petition of Biehler et al., 175.

2. Nor is it requisite that notice of the application for the appointment of commissioners should be given to other persons whose lands may be affected by the construction of the ditch.--Id.

3. It is not sufficient ground to set aside the order appointing commissioners, that there is no evidence in the record showing that they were freeholders.--Id.

4 Among the land owners to be affected by the proceeding, as set forth in the petition, were the Heirs of E. Schitl," with

out naming them, as the statute requires; but this objection was not taken upon the motion to vacate said order. Held, That this defect did not necessarily invalidate the whole proceeding, as it might have been shown that said heirs were actually served with notice of the proceedings before the commissioners and appeared therein.--Id.

5. The affidavits of service of notice of said proceedings was defective in the same particular, in not naming the heirs. Held, That this objection might be taken by an appeal from the proceedings of the commissioners, but was not a ground for setting aside their appointment.-Id.

EJECTMENT.

1. In 1795 V. R. leased four acres to P. for sixteen years at an annual rent of six pounds. The grantees of P paid the rent to 1860, when one E. S. quitclaimed to B. "subject to the rents, etc.." in the lease to P. In 1861 B. conveyed part of the premises to defendant S. by warranty deed without any mention of rent or of the lease to P. S. went into possession and so remains. Plaintiff, who has succeeded by deed to the rights of V. R., began this action for ejectment for nonpayment of the rent in Feb., 1883. In July, 1883, B. paid up all the arrears of rent on the whole parcel, but without the knowledge or consent of defendant S Held, That the action could not be maintained and that plaintiff's deed from V. R. was void for champerty.--Church v. Schoonmaker et al., 350.

2. Though a grantee cannot maintain ejectment in his own name where the conveyance under which he claims is void because the property conveyed was held adversely to the grantor, still he may rely upon a subsequent valid conveyance made by the grantor previous to the commencement of the action.--Dawley v. Brown, 565.

ELECTIONS.

1. An inmate of the New York State Soldiers' and Sailors' Home at Bath, who has left his home in New York City with the intention of making his future residence at the home so long as he should be permitted to stay there, is a resident of Bath and qualified to vote there.--Silvey v. Lindsey et al, 68.

See JUSTICE OF THE PEACE, 3.

EMINENT DOMAIN.

1. The act relative to the water supply of Amsterdam, Chap. 101, Laws of 1881, as

amended by Chap. 197, Laws of 1882, requires the commissioners to take a fee in lands required under the act.--In re Water Comrs. v. Collins et al., 76.

2. Accordingly, Held, That an order allowing them to amend their petition so as to obtain only an easement and the right to lay pipes must be reversed.--Id.

3. While an appeal from a second appraisal of real property to be taken for a public use made by new commissioners after the reversal on appeal of the first is expressly prohibited by statute, the right to move to set aside the report exists; but to authorize the court to review on motion a second report, something more must be apparent than such errors of law or fact as are reviewable on appeal, and sufficient, where an appeal is allowable, to result in a reversal and new hearing; there must be such an irregularity, fraud or mistake in the proceedings of the coinmissioners as would authorize the court, under its established practice, to set aside a judgment or verdict in an action on motion. In re petition of the N. Y. Elevated RR. Co., 115.

4. On a second proceeding to condemn property for the use of the elevated railroad, the comissioners allowed a witness to answer the following question against the objection of the company: "In your opinion does the structure of the railroad and the passing of the trains upon it as it is constructed and operated diminish the value of the property, limiting your consideration to the effect, if any, produced upon light, air and access, and excluding from your consideration the effect, if any, produced by noise, the vibration of the building, annoyances by smoke, ashes, dust, steam or cinders, and by the unsightly appearance of the structure itself?" Held, That even if the admission of this question were error it was not such error as would warrant the setting aside of the report upon motion.-Id.

5. Abutters on a public street who hold under mesne conveyances from one whose land was taken by proceedings which provided that it should be kept open as a public street forever, have an easement in the bed of the street for light, air and access, and they cannot be deprived of it without compensation.- Lahr v. The Metropolitan Elevated R. Co., 543.

6. The erection and operation of an elevated railroad, the use of which is intended to be permanent, upon which cars are propelled by steam, constitutes a taking of such easement and renders the railroad liable to the abutters for the damages occasioned.-Id.

See ASSESSMENTS, 9; MORTGAGE, 13.