N. Y. SUPERIOR COURT. GENERAL recovery, judgment, and satisfac

The case was tried in December, ment by the court and the subse1879, at Special Term, and judg- quent discharge of the liens; the ment was rendered for defendant, rendering of a judgment in favor of from which this appeal is taken.

John McCune, for plff.

James M. Townsend, for defts.

Held, That the judgment must be affirmed, on the principle laid down by the court in Colburn v. Woodworth, 31 Barb., 381.

No other opinion by the court.
Spier and Freedman, JJ., concur-

red.

the plaintiffs in the action against the property described in the notice filed; the amount of the judgment; that it remains unpaid; and that liberty was given by the court to the plaintiff to sue upon the instrument, which was not under seal, although in the form of a bond.

Jeroloman & Arrowsmith, for plffs.

T. E. Stewart, for deft.

Held, Having obtained the dis

MECHANIC'S LIEN. ACTION charge of the liens by executing UPON UNDERTAKING ON this instrument, it does not lie with DISCHARGE. the parties who executed it to obGENERAL ject, when an action against them is brought upon it, that it is not a bond because it has no seal. It

N. Y. COMMON PLEAS.

TERM.

Eliza Whitney, et al., v. James A. contains all that would be required Coleman, impl'd, &c.

Decided April 5, 1880.

Where mechanics' liens have been discharged by executing an instrument, it does not lie with the parties who executed it to object, when an action against them is brought upon it, that it is not a bond under the statute, because it has no seal, or because something

under the statute in a bond except the attachment of a seal. It was approved by the court, and the defendant has had the benefit of it, as the liens were discharged upon their giving it. It is well settled that in such cases the parties who execute the instrument cannot escape from liability under it because something Appeal from an order overruling was omitted in the form of it. a demurrer to complaint and the 3 N. Y., 188; 7 Daly, 182;5 id., 308; judgment for plaintiff entered there- 1 Abb. Ct. of App. Dec., 394; on. The complaint states the filing 16 N. Y., 439.

was omitted in the form of it.

of two notices by the plaintiffs to Order and judgment below afsecure two mechanics' liens on prop-firmed.

erty which is described, together Opinion by Daly, Ch. J.; Van with the name of the owner and the Hoesen and Lawrence, JJ., concontractor; the commencement of curred.

an action to enforce these liens; the giving of the instrument annexed to the complaint to discharge the liens; the approval of the instru

ATTACHMENT. JURISDICTION same day judgment was entered

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

The Hibernia National Bank, respt., v. Leopold Lacombe et al., Comrs, impl'd, &c., applts.

Decided May 14, 1880.

against it in a court in New Orleans, declaring its charter forfeited and appointing commissioners in liquidation to wind up the affairs of the

bank. The sheriff of the Parish of Orleans took possession of the assets of the bank, in Louisiana, on

In an action upon a bill of exchange, drawn by the 19th of March, and on the 30th

sioners.

a bank in Louisiana, to the order of another of April, 1879, delivered them to bank of that state, upon a firm in New York City, which firm refused to pay the bill of the above defendants as commisexchange, the cause of action arose here where the breach occurred and where the contract was to be performed. Liquidators of a corporation appointed under 8 decree made in another state under an insolvent law of such other state, do not take precedence over an attaching creditor here, even though such

This action was commenced by an attachment against the Mechanics' & Traders' Bank on the 27th of March, 1879, and its funds, in the hands of Morgan Sons, were levied upon under the attachment upon that day. Service upon the A statutable conveyance, made under the bank, was made by publication. authority of any legislature, can operate The plaintiff gave a bond for costs. intra-territorially only, and national The commissioners in liquidation of the bank were made defendants upon their own application.

attaching creditor is a resident of the state where such liquidators were appointed.

comity, which is all that a foreign assignee can invoke, requires us to give effect to such

assignments only so far as may be done

without impairing the remedies or lessening the securities which our laws have provided

for our own citizens.

Appeal from a judgment rendered at circuit upon the trial by the court without a jury.

Upon the decision in favor of the plaintiff by the court below, judgment was rendered in plaintiff's favor for the amount due upon the bill of exchange, and the attachment was upheld as valid.

Wm. H. Arnoux, for applt.
Thos. S. Moore, for deft.

Action upon a bill of exchange bearing date the 17th of March, 1879, drawn by one of the defend- Held, The court has jurisdiction ants, the Mechanics'& Traders' Bank of the cause of action set forth in of New Orleans, upon M. Morgan the complaint, although plaintiff and Sons, New York, payable to the defendants are non-residents; that order of the plaintiff, a national the cause of action arose in favor of bank, located in New Orleans, at sight, which was presented for payment on the 26th of March, 1879, protested for non-payment and due notice thereof given.

the plaintiff in this state upon the failure of the drawee to pay the draft held by the plaintiff. The agreement was to be performed here and the breach occurred here. 23 The defendant, the Mechanics' & How. Pr., 180; 41 Barb., 9; 8 Traders' Bank, failed on the Bos., 612; 3 N. Y., 132; 14 Hun, 19th of March, 1879, and on the 89.

fireworks do not necessarily constitute a nuisance per se; that depends on the locality, the quantity, and the surrounding circumstances, and not entirely upon the degree of care used.

An individual has no more right to keep a powder magazine upon his premises to the detriment of his neighbors than he is authorized to engage in any other business which may occasion serious consequences. Reversing S. C., 7 W. Dig., 378.

The decree in the Louisiana court declaring the charter of the defendants' bank forfeited did not have the effect to dissolve the corporation so but that it retained vitality, so far as our tribunals are concerned, sufficient for the protection of the rights of creditors, against the funds of the bank in this state. 1 Holmes, 103. A statutable conveyance made This action was brought to reunder the authority of any legisla- cover damages for injuries to plainture can operate intra-territorially tiff's dwelling house and stable, only, and national comity, which is all caused by an explosion of defenthat a foreign assignee can invoke, re- dant's powder magazine. Defenquires us to give effect to such as- dant's premises were located about signments only so far as may be 175 feet from plaintiff's, and upon done without impairing the remedies them he had twelve buildings used or lessening the securities which by him for making and storing fireour laws have provided for our own works. The powder magazine was citizens. Story on Conflict of Law, constructed with the usual safesections 410, 411, and 414; 23 Wend., 91; 28 Conn., 274; 68 Ills., 351; 1 Curtis, 168.

guards, and exploded without any apparent cause. The judge charged the jury that they must find for defendant, unless they found he carelessly and negligently kept the gunpowder upon his premises.

Philip S. Crooke, for applt. Benjamin F. Downing, for respt. Held, error; that the rule which exonerates a party engaged in a

We feel constrained by the current of authority to hold that the Louisiana creditor has a right, as against the liquidators, to take advantage of our laws, and to proceed thereunder; that the liquidators are not vested, as assignees having an interest, with the property within lawful business, when free from negour jurisdiction, and that treating them as we must, merely as representing the bankrupt, they have no status to dissolve the attachment or to oust the plaintiff.

Judgment affirmed, with costs. Opinion by Barrett, J.; Davis, P. J., and Brady, J., concurring.

NUISANCE.

N. Y. COURT OF APPEALS. Heeg, applt., v. Licht, respt.

Decided April 6, 1880.

ligence, does not apply to this case; that the keeping or manufacturing of gunpowder or fireworks do not necessarily constitute a nuisance per se; that depends upon the locality, the quantity, and the surrounding circumstances, and not entirely upon the degree of care used; that this question should have been left to the jury.

A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments

The keeping or manufacturing of gunpowder or of another. 3 Bl. Com., 216. Any

Vol. 10-No. 8.

unwarrantable, unreasonable, or CHECK. CONSIDERATION.

unlawful use by one of his own property to the injury of another comes within this definition.

EVIDENCE.

N. Y. COURT OF APPEALS.

Wood on Nuisances, § 1. While Raubitschek, respt., v. Blank, a man may prosecute such applt.

business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor or of his neighbors, even in the pursuit of a lawful trade. 9 Coke, 58; 3 Barb., 159; 13 Abb., 445; 74 Pa. St., 230.

The cases which hold that the keeping of gunpowder or other materials in a place or under circumstances where it would be liable in case of explosion to injure the dwelling houses or the persons of those residing in close proximity is a nuisance, rest upon the maxim sic utere tuo, &c., and that it is better as a matter of public policy that a single individual should surrender the use of his land for special purposes injurious to his neighbor or others, than that the latter should be deprived of the use of their property altogether, or be subjected to great danger, loss, and injury. An individual has no more right to keep a powder magazine upon his premises, which is dangerous, to the detriment of his neighbor, than he is authorized to engage in any other business which may occasion serious consequences.

Decided April 6, 1880.

In order to sustain a defense in an action on a

check that the same was without consideration, the defendant must affirmatively establish a want of consideration. Defendant and one H. verbally agreed to exchange real estate, and defendant gave to H. a check as part payment, and received a receipt therefor. In an action on the check defendant testified that he did not know where the receipt was, and that he believed it stated that the check was received on account of an exchange of property mentioning it, and also the conditions of the exchange. Held, that the receipt was a sufficient consideration for the check; that the two must be read together, and make out a valid contract between the parties.

Plaintiff held the check as an assignee of H., who was dead. Held, that defendant was incompetent to testify to any personal transaction between himself and H.

This action was brought to recover the amount of a check, valid upon its face. It appeared that it was made in pursuance of an agreement between defendant and one H. for the sale and exchange of certain real estate owned by the parties respectively. The terms were agreed upon verbally, and a contract was to be drawn up and executed accordingly. The proof showed the check was given and received as a payment for the real estate H. was to convey to defendant, and a receipt given for the same. The receipt was not produced, and defendant testified that he had not seen it since it was delivered and did not know where it was. Upon cross