« ForrigeFortsett »
from this order. In an action against the sureties upon the undertaking, Held, That the amount of their liability was fixed by said order.-Patton v, Bullard et al., 103.
action was taken therein for a year or more. Subsequently, T., upon hearing that D. had acquired some property, notified him to appear and submit to a continuation of his examination, and, upon his doing so, procured the appointment of one G. receiver of D.'s property. No inquiry was made in T.'s proceedings, as required by $ 2465 of the Code Civ. Pro., as to whether any other proceedings of the same character were pending at the time of the appointment of G. as receiver, and no notice of the application for the appointment of a receiver was given to any one. Such other proceedings were in fact pending at that time, and the judgment creditor therein subsequently moved to vacate the appointment of G. upon affidavits charging that T. and his attorney were cognizant of the existence of the other supplementary proceedings. Held, That the appointment of G as receiver should be vacated.
—Thayer v. Dempsey, 457. 8. When the affidavit states all the neces
sary facts to give the judge jurisdiction to grant an order for the judgment debtor's examination and he appears and submits to the examination and to the appointment of a receiver without objection, it is too late to move to vacate the orders upon the ground that the sheriff's return is defective when it appears by the examination that the debtor has not been prejudiced by the defect complained of. So held where the examination showed that the debtor owned an interest in encumbered real estate, and the defect was an omission to state in the return that he had no real estate out of which the execution could be satisfied.-Baker et al. v. Herkimer, 573.
3. Where an undertaking is given to secure
the payment of alimony at a specified weekly sum and by an order of the court the surety deposited certain bonds as further security for the payment, the surety's liability is not increased by reason of an increase of alimony by the court without notice to such surety; and it is improper for the court to sell the bonds and direct the payment of the increased alimony out of the surety's property.
Manning v. Sueeting, 320. 4. A renewal lease of mining property
stated that a certain amount of royalties under the former lease was in arrears and a clause in the contract of suretyship provided that the execution “of the above lease and this
our guaranty thereto shall not be held to change or impair our liability to pay the balance of the royalties now due and owing by G. under the former lease as recited in the annexed lease and as previously guaranteed by us." Held, That the sureties were not precluded in an action against them from showing that at the time of the execution of the second lease G. did not owe as much as stated therein.- The Robinson Consolidated Mining Co. v. Craig et al.,
512. See INDEMNITY, 3.
SURROGATES. 1. A general exception to a surrogate's
decree and each and every part thereof is not sufficient. -Angevine et al. v.
Jackson, 52. 2. It is error for the General Term to re
verse a decree of a surrogate where the case contains no exception raising any
question of fact or law.-Id. 3. Wbere the deceased had taken out a pol
icy payable to his executors, etc., for the benefit of bis widow, if any, and the company paid the money to the executor, Held, That the surrogate had no power or jurisdiction to order payment of the proceeds to the widow; and that Code SS 2472, subd. 4, and 2717, did not apply.
In re estate of Vandermoor, 56. 4. Such a claim is not a "debt" within
those sections and the money is not “money or property belonging to the
estate." -Id. 5. The surrogate is not authorized under
$ 2558 of the Code of Civil Procedure to charge upon the estate the expense of a having it invested. Before investments had been found for said sum M. died, leaving a will by which F., also a resident of Cuba, was appointed his executor and by which directions were given for investment of $70,000 of his estate in U. S. bonds. After qualifying as executor in Cuba, F. came to N. Y. and was appointed ancillary executor of M.'s estate for the purpose of getting possession of the funds of said estate. Held, That F. was not subject to taxation as such ancillary executor upon the fund belonging to the estate on deposit with said bankers.—The People ex rel. Ferrer v. Tax Comrs., 259.
2. B. recovered a judgment for M. as at
torney and claimed to be entitled to some of the moneys made on execution thereupon. The court ordered the moneys paid to M. on his giving an undertaking to B. to pay him any sum which he might finally establish against these moneys. It also appointed a referee to hear the matters in dispute. B. and M. came to an agreement, the reference was declared at an end and the court fixed a sum as due B. from M. No appeal was taken
stenographer's report of testimony fur. nished to an unsuccessful contestant except where such testimony is taken in the course of the actual trial of a proceeding in the Surrogate's Court. Sections 2541, 2542 and 2543 of the Code relate exclusively to minutes of testimony taken in the course of the actual trial of a proceeding in the Surrogates Court.-In re
estate of Henry, 156. 6. The court cannot allow out of the estate
to an unsuccessful contestant the expense of a stenographic report of the examination de bene esse of a witness whose deposition was not read at the trial nor returned in the manner provided by S 880 of the Code, and where the way was not paved for its introduction by showing that deponent had died, that she was absent from the State or unable to attend the trial by reason of her confinement in prison or jail, or because of insanity,
sickness or other infirmity.-Id. 7. A surrogate may allow costs to a contes
tant who is successful before him, and if the executor pay the costs before an appeal is taken, or if there is no appeal from that part of his decree awarding costs, the executor is protected in their payment.-In re accounting of Eastman,
397. 8. The part of a surrogate's decree not ap
pealed from stands as the judgment of the court, even though the appellate court reverses the Surrogate's in the matter from which the appeal was taken.
Id. See APPEAL, 8, 17; EXECUTORS, 7, 8, 13, 18,
32, 35, 36, 38; GUARDIANS, 1; MANDAMUS, 7; MARRIAGE, 1; SUPPLEMENTARY PROCEEDINGS, 6; TRUSTEES, 10, 11.
4. There is by the terms of the statute no
qualification of the purposes for which the lot on which the buildings of a seminary of learning may be used, nor are the dimensions of the lot prescribed, but a reasonably necessary interpretation requires that the lot be such as will permit it to serve the purpose in view, and that it be devoted to no use other than that which is necessary or fairly incidental to the use or purposes of the institution.The People ex rel. Seminary of our Lady
of Angels v. Barber et al., 325. 5. The liability of the lands of such an in
stitution to assessment is one of statutory construction, and not one of the discre
tion of the assessors.-Id. 6. In entering land upon the assessment roll
for an omitted tax of the preceding year assessors can exercise no discretion; their power is ministerial; they are not permitted to insert on the roll a greater valuation, although they make an entry on an increased quantity of land, but they should be governed by the judicial action of the assessors of the preceding
year.-Id. 7. An executor residing in the city and
county of N. Y., where the personal prorerty of the estate which he represents is situated, may be assessed for the full amount of such personal estate notwithstanding that he has co-executors who do not reside in said city and county; and, if all the executors are included in said assessment, the commissioners of taxes may correct the same, within the time allowed for that purpose, by striking from the assessment roll the names of the nonresident executors.- The People ex rel.
Neustadt v. Comrs. of Taxes, 346. 8. Whatever may be the strict legal right of
the registrar in respect to a specific arrears in order to compel him to act under the city charter, if he does answer the general demand for all arrears of taxes and assessments he is bound to do so correctly.-In re application of Cooper v. Registrar of Arrears, 458.
1. An owner of land in the city of N. Y. sold
for the non-payment of taxes bas two years from the date of the certificate given to the purchaser in which to redeem said land, and such certificate should bear the date of the time when such purchaser paid the purchase price into the city treasury and not the date when the sale took place.—The People ex
rel. Haddock et al. v. Cady, 150. 2. After the date of such certificate of sale
and up to the time of the delivery of a lease to the purchaser the owner of such lands, in order to redeem them, must pay to the clerk of arrears the purchase price together with interest thereon at
the rate of fourteen per cent. -Id. 3. M., a resident of Cuba, had on deposit
with bankers in N. Y. during his lifetime the sum of $106,224, which he had transmitted to his bankers for the purpose of
other owners, without his consent, to defendant's grantor. Defendant covered them with its station buildings and refused to pay plaintiff his share of the rental value. Held, That an action could be maintained for such share of the rental value, defendant having excluded plain. tiff and by use and enjoyment received the entire rent.--Muldowney v. The Mor
ris & E. RR. Co., 257. See CONVERSION, 2; PARTITION, 2.
See CONTRACT, 7.
See ADVERSE POSSESSION; ASSIGNMENT FOR
CREDITORS, 3; SALE, 1, 4, 11, 12.
TRADE-MARK. 1. A trade-mark cannot be acquired in a
form of frame which has been the subject of a patent, especially where such frame is a useful mechanical structure, and the invalidity of the design patent is not available to plaintiff, who has enjoyed the benefits conferred by such patent, even if the court had jurisdiction in the matter.-The Wilcox & Gibbs S. M. Co. v. The Kruse & Murphy Mfg. Co. et al., 454.
TRESPASS. 1. In an action for trespass evidence that
the acts complained of were carefully done is immaterial.-Ketcham et al. v,
Newman et al., 157. 2. Assuming (without deciding) that a tenholders of the remaining bonds if their interests shall be found to have been sacrificed by those to whom the business was committed by the trustee; but, in order to entitle plaintiff in an action against the trustee to enforce such liability to recover, while the strictest evidence of loss should not be required, some evidence should be given by plaintiff that the property could have been sold on better terms if the trustee had managed the foreclosure proceedings, and, impartially and for the benefit of all bondholders, secured the making of the sale.--Merrill v. The
9. Certain irregularities held not to invali
date tax assessments.--The People ex rel. The R. W. &0. RR. Co. v. Jones et al., 487.
10. Corporate franchises are not real prop
erty. --The People ex rel. The Panama
RR. Co. v. Comrs. of Taxes, 510. 11. Where a corporation liable to taxation
under the law of 1857 has real estate in another State or country the deduction is to be measured by the actual value of the real estate, and the price paid for it, in the absence of other and better evidence, may be taken as representing such
value.-Id. 12. Chapter 483, Laws of 1885, imposing a
tax on collateral inheritances, is constitutional and valid.-In re application to compel payment by exrs. of McPherson,
525. 13. The requirement of the statute that the completed and verified roll shall be deliv. ered to the proper officer on or before the first day of September is directory only, and the sole object thereof is to set running the fifteen days within which parties aggrieved may sue out a writ of certiorari. Where the roll was not de. livered to the town clerk until Sept. 20, held, That the delay did not vitiate the assessment.—The People ex rel. The R.
W. &0. RR. Co. v. Haupt et al., 532. See DEEDS, 1; MANDAMUS, 4, 6.
TELEGRAPH COMPANIES. 1. When a corporation engages in a busi
ness concerning which its charter is silent it is not freed from the obligations which ordinarily attach to a natural person engaging in such occupation.-Smith v.
The Gold & Stock Tel. Co. et al., 347. 2. So long as a telegraph company carries
on the business of collecting and supplying stock quotations it should render equal and impartial service to all who comply with reasonable regulations.
Id. 3. A clause in a contract for such service
permitting the company to discontinue if, in its judgment, a breach of conditions is had, is not a reasonable regula
tion.-Id. 4. Where accurate proof of the amount of
damage sustained will be impracticable it is no defense to an action for an injunction that an action for damages would lie.--Id.
ancy from year to year was created be. tween the parties, and not merely a contract to work upon shares, which had been yearly renewed, yet as the tenant bad notified the lessor, prior to the commencement of another year, that he was going West and would work the farm no longer, and the latter thereupon entered into a contract with another person to work the farm on shares, the former was precluded from insisting that he was entitled to notice to quit and maintain an action of trespass against the lessor and such third party.-Merritt v. Merritt et al., 186.
TRUSTEES. 1. Where the trustee named in a mortgage
made by a railroad company to secure bonds issued by it voluntarily hands over the control and management of proceedings to foreclose the said mortgage to a majority of the bondholders, said trustee is liable to respond in damages to the
TENANTS IN COMMON. 1. Plaintiff was tenant by curtesy of half of
certain premises which were sold by the
Farmers' L. & T. Co., 30. 2. Evidence sufficient to support a finding
that a trustee in making a report asserted
a falsehood.-Blake v. Griswold, 33. 3. The trustee, an aged man, was induced
by the tenant to agree to take securities for payment of the rent at the end of the lease, but by fraud substituted an agreement by which the trustee purchased real estate and assumed the incumbrances. This was afterward set aside and judgment for the rent recovered, execution on which was returned unsatisfied. It appeared that $5,000 per year was an excessive rental for the property, the fair rental thereof not exceeding $3,500. On appellant's accounting as trustee he was charged with the full amount of the rent reserved in the lease. Held, That it should have been determined whether that amount could have been collected from L. with reasonable diligence, and if it appeared that it could not, then what amount could have been produced by a lease to a responsible tenant if with reasonable diligence appellant had evicted L., and he should have been charged with that amount, if it appeared that there was bad faith on his part or such neglect of duty as amounted to willful negli
gence.-In re accounting of Hunt, 87. 4. Testatrix by her will gave her residuary
estate to her executors in trust to invest the same without restriction as to the character or class of such investments and then directed that out of such income they should pay to her daughter an annuity of $1,000 during her life and make equal division of the balance of the income among her four sons, and at the decease of the annuitant they should convert the entire estate into cash and distribute the proceeds equally among her four sons if they should be then living, and in case any of the said sons should die before the annuitant leaving a child or children, or leaving no child or children, but leaving a widow, “then such child or children or such widow or such person or persons as my said son so dying shall by his will and testament for that purpose name shall take the share or portion of my estate and of the income
thereof which said son would by the foregoing provisions be entitled to receive.” Held, That the testatrix intended that in the event of the death of any one of her sons in the lifetime of the annuitant leaving child or children such child or children should receive the share of the estate which such son himself would have received bad he lived to take it, and that such child or children are beneficially interested in the execution of the trust within the
meaning of SS 2685 and 2817, Code Civ. Pro., and are accordingly enti. tled to invoke the authority of the surrogate for the removal of the trustee.-In
re estate of Petrie, 122. 5. Upon an accounting before the surrogate
of the trustees of a fund provided by the testator's will and set apart to trustees to pay annuities, the cestuis que trustent objected that the fund held was larger than was necessary to provide for the an. nuities, and asked for a reference to de. termine what portion of the trust estate may be returned to the residuary estate without jeopardizing the claims of annuitants. Held, That this is a matter which cannot be properly considered in the accounting proceeding now before the court. It does not concern the correctness of the account for whose judicial Settlement and determination this proceeding was brought. The objection does not point out any error in the account nor does it seek to charge the trustees with amounts clairned to have been mitted by them, nor to falsify items with which they ask to be credited. The relief sought should be sought in a proper proceeding instituted for that express pur
pose.-In re estate of Willetts, 145. 6. Ordinarily when a trust fund is so appro
priated and mingled with the funds of the trustee in a transaction apparently his own as to conceal the trust, the trustee is personally liable for the amount.-Hatch
et al. v, Stewart, 371. 7. In such a transaction there may be mod
ifying circumstances, and when such mingling is with the assent of the cestui que trust, and when bad faith or negligence cannot be imputed, the trustee is not per
sonally chargeable.-Id. 8. When a trust fund is received by a trus
tee to be paid over it should be paid at once to the person entitled thereto, and if not so paid the trustee will be chargeable with interest from the time of its receipt.
-Id. 9. Merely calling an executor or guardian a
trustee in a will does not make him a testamentary trustee; to make him such some express trust must be created in the
will.-In re accounting of Hawley, 522. 10. In respect to accountings of testamen. tary trustees or guardians a surrogate has no incidental powers or constructive authority not expressly given by statute.
Id. 11. Annual acccountings by testamentary
guardians are merely to inform the court as to the manner in which the guardian is discharging his trust, and the surrogate has no jurisdiction to judicially settle the accounts during the continuation of the
guardianship.-Id. See CORPORATIONS, 2, 10; EXECUTORS, 34;
LIMITATION, 4; MORTGAGE, 4.
tions provided for the payment of the income to the beneficiaries until and the principal paid to the survivors of them when the youngest of them arrived at legal age. Held, That a valid trust was created which could be enforced by the beneficiaries, and that plaintiff was entitled to possession of the securities.- Van
Cott v. Prentice et al., 423. 4. Where a trust provides for the payment
of the income of the trust fund to the beneficary, a judgment creditor of the latter is entitled to the appropriation to the payment of his judgment of the surplus of said income beyond what is necessary for the suitable support and maintenance of the cestui que trust and those dependent on him; and the judgment creditor may maintain an action in equity to reach and appropriate such surplus; but, in order to succeed in such an action, he must prove that such a surplus exists. and in determining what is a proper amount to be allowed for the expenditures of the beneficiary it is proper to consider the manner in which he has been brought up, the habits acquired by him, and his ability to take care of his
property.-Kilroy v. Wood, 554. See DOWER, 2.
See ARREST, 2; REPLEVIN, 1; SURETYSHIP, 2.
USURY. 1. When a person employs an agent to pro
TRUSTS. 1. When a certain sum of money is rested
in a trustee with directions to invest it in certain securities and pay the yearly interest or income derived therefrom to the beneficiary during his natural life, and after his death to divide the principal among certain specified persons, and, after the death of the beneficiary, the securities in which the trust funds were invested are sold, and are found to have increased in value so that a larger sum is realized from such sale than was directed to be held in trust, such increase in value belongs to the remaindermen and not to the representatives of the beneficiary, even though the trustee bas invested a portion of the fund in unauthorized secu
rities.—In re accounting of Gerry, 135. 2. In the year 1853 one F., in contempla
tion of marriage, conveyed all her prop. erty to trustees in trust to devote the same to her benefit for one year, if she did not marry within that time, and if she did so marry, then to devote it to her benefit during coverture; and if she should die during said coverture, to convey said property to the deviseo or devisees named in her will; and if she should die during said coverture without leaving a will, then to convey said property to her heirs-at-law. F. married within the year mentioned and died during coverture, leaving a will devising ber property to trustees in trust to devote the same to the use of her two children for life and directing that after their death it should go to their heirs. Held, That said will was void.—Genet et al. v. Hunt et al.,
374. 3. Defendant's testator, by a deed of trust,
gave to plaintiff as trustee certain securities the income of which was to be paid to certain beneficiaries during the settlor's life, and at his death the principal to be disposed of in accordance with sealed instructions to be opened at that time. Full power of revocation was reserved, and it was provided that the beneficiary should have no legal or equitable right to the principal or income; the sealed instruc
cure for him a loan upon bond and mortgage, and agrees to pay such agent a specified sum“ to pay expenses, etc., therefor," and the agent applies to a third person to lend the money and informs the lender that he (the agent) is to be paid a sum of money for procuring such loan and agrees with the lender to divide such sum with him, and, upon that understanding, the loan is made, and the lender, beside receiving a bond and mortgage securing the payment of the entire sum loaned with legal interest, also receives from the agent half the sum of money paid the latter, the transaction is usurious, for the bonus paid by the agent for the loan to the borrower is in legal effect paid by the principal as a bonus in excess of legal interest.-Byrnes v. Labagh, 461.
1. The complaint alleged that defendant ma
liciously destroyed grass and sod of plaintiff and took it away, and prayed for relief under the statute to prevent malicious mischief. She proved the wrongful cutting and carrying away. Held, That