drawn by said firm, of which the the bank by Duncan, Sherman & check in suit was one: After the Co., they were beyond recall, as the deposit of the securities aforesaid, trust attached, which could only be and on the 27th of July, 1875, discharged by the consent of the Duncan, Sherman & Co. made a parties for whose benefit it was general assignment for the benefit created, namely, the holders of the of creditors. The defendant, the drafts and checks. 19 Hun, 399; 19 said national bank, although still Vesey, 345; 9 Paige Ch., 432; 1 holding the securities as aforesaid, Johns. Ch., 119; 75 N. Y., 134; 4 which were ample for the payment Kent's Com., 306; 2 Story's Eq. of all over-drafts of cashier's checks, Jur., § 964. declined, after Duncan, Sherman & Co.'s failure, to pay the check. The court below, citing 1 Seld., 525; 5 Coms., 251, and 2 Seld., 416, dismissed the complaint, upon the ground that an ordinary check or bill of exchange, prior to accept Judgment reversed, new trial ordered, costs to abide event. Opinion by Ingalls, J.; Davis, P. J., and Barrett, J., concurring. APPEAL. DEPOSITIONS. BROKERS. ance, gives to the holder no lien, N. Y. SUPREME COURT. GENERAL legal or equitable, upon the funds. of the drawer in the hands of the drawee, and that the bank having failed to pay the check, the property in the securities as to the holder of the check remained in D., S. & Co., and it was competent for them to revoke such direction, and the legal effect of he assignment was to work such revocation. Wm. A. Butler, for applt. Benj. D. Silliman, for respt. TERM. FIRST DEPT. Darius Miller et al., respts.,Tv. Decided July 30, 1880. to vacate a previous order, the appellate Held, This case is distinguishable Where a broker or commission merchant with from the class of cases referred to, and upon the authority of which this cause seems to have been decided at Special Term. holds the fullest information from his cus tomer in relation to property alleged to have been bought or sold, the right to examination before trial, in an action to recover alleged profits or to adjust unsettled accounts, should be fully accorded. A commission merchant or broker has no right to conceal from his customer any portion of his transactions and dealings in relation to the property alleged to have been bought or sold. That the deposit of the securities, under the circumstances, created a trust for the benefit of plaintiff and others, holders of the unpaid cashier's checks. That such trust, although created without plaintiff's Appeal from an order of Special knowledge, could be affirmed by Term, denying motion to vacate orplaintiff. That when the securities der for the examination of the dewere placed in the possession of fendant Kent before trial. Vol. 10-No. 16. The plaintiffs, upon an affidavit and granting a new order to show showing the facts with respect to cause upon the spot. Upon the the nature of this action, its condi- merits we are satisfied that the plaintion, &c., required by the statute, tiff was entitled to the examination. together with the fact that the de- Issues had been joined, and the fendant Kent, in this action, brought cause was ready for trial as between to recover alleged profits and ad- the parties to the issues. The just unsettled accounts between the plaintiffs show, to our satisfaction, defendant Kent, a commission mer- that they could not get such an acchant, and the plaintiffs, his cus- count of the transactions of the detomers, withholds information with fendants, alleged to have been made respect to his transactions as on their behalf, as they were clearly broker. An order was made for the entitled to. A commission merchant examination of the defendant Kent, or broker has no right to conceal defendant Kent moved to vacate from his customer any portion of his the order, and showed upon such transactions and dealings in relation application alleged proffers of the to the property alleged to have been examination of the defendant's bought or sold, and when he withbooks, &c. The point was made on the appeal that the order to show cause on this motion to vacate did not specify the irregularities or grounds upon which it was sought the unsettled accounts, should be to set aside the original order, and for that reason the order appealed from should be affirmed. It does not appear that any such objection was made or suggested in the court disingenuousness of the attempt thus below. L. A. Gould, for applt. Adolphus D. Pape, for respts. Held, It not appearing that the objection to the notice of motion, in emitting to state the irregularities or grounds upon which the order for examination was sought to be vacated, was suggested in the court below, and it appearing that the motion was heard and disposed of upon its merits, an appellate court should not listen to the objection, because if made below it might readily have been obviated by allowing a statement of such irregularities to be inserted in the notice,| holds the fullest information on that subject, the right to examination before trial, in an action brought to recover alleged profits, or to adjust fully accorded. We are not at all satisfied with the good faith of the alleged proffers of an examination of the defendant's books, &c. The to defeat the examination of defendant as a witness, must have struck the court below as it does this court. Order affirmed, with $10 costs, besides disbursements. Opinion by Davis, P. J.; Barrett and Brady, JJ., concurring. DIVORCE. INTERVENTION Hatty Clay v. Henry De B. Clay. While it is not within the power of the court, in a suit for absolute divorce, to allow a third party with whom acts of adultery are charged to have been committed in the complaint to come in and defend as a party to the suit, yet the court may, and will, in a proper case, allow such third person to attend upon the examination of the witnesses and cross-examine the witnesses upon the reference to take proof of facts, and direct that such third person be called as a witness, and that such witnesses as she may name be summoned and examined. Appeal from order denying petition of Isabella D. Lyon to come in and defend this action. Action for absolute divorce on the N. Y. SUPREME COURT. GENERAL ground of adultery charged to have been committed with said Lyon. The petition denies the charges and asks that the petitioner may be made a party defendant in order that she may be allowed to vindicate her character. The motion was denied by the court below. TERM. FIRST DEPT. Louis E. Howard et al., applts., v. Joseph Park, Jr., et al., respts. Decided July 30, 1880. This court should not grant a reference to determine the damages arising by reason of an injunction order where an appeal has been perfected from the judgment in the suit. After such appeal has been perfected there is no such final decision as authorizes the granting of the order of reference. Appeal from order of reference to assess damages arising by reason of injunction. In opposition to such order it appeared that an appeal had been taken from the judgment in the action and was perfected. F. W. Henrichs, for applts. Stephen A. Walker, for respts. James W. Perry, for applt. W. B. Hornblower, for respt. Held, The petition, so far as it prayed for leave to come in and answer and defend upon the merits, was properly denied for want of power. The court will, however, look to it that the testimony is clear and convincing before granting the plaintiff relief which must necessarily reflect upon and pro tanto convict the petitioner. In order that Held, The case is within the printhe right of the petitioner, not to be ciple of Musgrave v. Sherwood, 76 convicted unheard, may be secured, N. Y., 194. Prior to the time when so far as consistent with the law in the reference to assess damages was such cases, the order of the court granted, the appeal from the judgbelow should be modified by deny- ment had been duly perfected. Coning the prayer of the petitioner to sequently, under the decision cited, come in and defend the action as a the motion for such reference should party, and directing that notice be be dismissed. given to the counsel of the petitioner The order should be reversed, of all proceedings to take testimony with $10 costs and disbursements of in the action, and that she be al- the appeal, and the motion for a reference to assess the damages should not have been allowed. 13 upon the injunction dismissed with- EX PARTE ORDER. COSTS. Madeline W. Edleson, respl. v. Decided July 30, 1880. An order requiring a pleading to be filed with the county clerk, after notice, as provided by sec. 824 of the Code of Civil Procedure, is N. Y. SUPERIOR COURT. GENERAL an ex parte order, and motion costs should not be allowed in an ex parte order. Appeal from order sustaining the allowance of costs in an ex parte order directing the defendant to file his answer within five days, or in default thereof that it be deemed abandoned. TERM. John B. Parker v. John J. Bradley. Decided June 18, 1880. An attachment may issue against a sheriff to An attachment against the sheriff for not mak- Plaintiff procured the order, with costs, directing the answer to be filed after having given notice, under sec. 824 of the Code of Civil Procedure. Defendant, upon application ex parte, procured the order to be modified by striking out This is an appeal from an order the costs. Plaintiff then procured directing an attachment to issue an order to show cause why the against Bernard Reilly, the late original order with costs should not sheriff of the city and county of be restored and the order striking New York, for neglecting to return out the costs be vacated. The court an execution against the property granted the order restoring the of the defendant, as required by the original order allowing costs. writ. On the 11th of June, 1879, the plaintiff recovered a judgment against the defendant for the sum of $4,832, and, on the 12th of June, an execution was issued thereon to said sheriff. He collected the entire amount, and, on the 23d of September, 1879, he paid over to the plaintiff the sum of $1,332 on account. The balance he claims to hold under a warrant of attachment, issued to him out of the Supreme Court, on or about June 26, 1879, in an action wherein the defendant, John J. Bradley, was plaintiff, and the present plaintiff, John B. Parker, was defendant. The warrant commanded him to attach and safely keep the property of the said Parker, or suffi cient thereof to satisfy the claim of N. Y. SUPERIOR COURT. GENERAL Bradley, amounting to $2,000, with some three years interest thereon, besides the costs and expenses of said action. It is conceded that the warrant of attachment still remains in full force and effect, and there is no proof of what the sheriff did under it. Vanderpoel, Green & Cuming, attys., and Almon Goodwin, of counsel for applt. Charles N. Black, of counsel for respt. TERM. Eugene Von Nordhausen v. The N. Y. & Harlem R.R. Co. Decided June 18, 1880. In an action for damages for negligence, the court has the power to dismiss the complaint after all the evidence on both sides is in, when it appears, by the great preponderance of evidence, that the plaintiff's negligence contributed to the injury. The action was for damages from Held, That the sheriff, having testimony for plaintiff and for denegligence of defendant. After the neglected to return the execution fendant had been given before the according to the command thereof, jury, the defendant's counsel moved was liable to be proceeded against to dismiss the complaint on the eviby attachment, and it was no answer dence, and the motion was granted. for him to say that he had not been From this judgment the plaintiff ruled or notified to make a return. appealed. The facts, and the disof the evidence, appear in the decicussion of the bearing and weight sion. A. J. Perry, for plff. Frank Loomis, for respt. 15 Johns., 456; 3 Hill, 552. The attachment delivered to him did not relieve him of the duty to make a return. 63 N. Y., 258. The fact that he had not been ruled or notified, taken in connection with the other facts relied on by him as an excuse, demanded that, before the rect. That the great preponderance actual issue of the attachment of evidence was that plaintiff's negagainst him, an opportunity should ligence contributed to the injury. be afforded to him to make a return. Aside from his own testimony, the Held, That the dismissal was cor |