Judgment affirmed with costs. No statements which are relied upon to 1879, was granted, in these words: make the estoppel clearly excluded "Motion to amend order as to its the idea of any intention on the part date granted, on payment of $10 of the defendant to change his lia- costs to George C. Carter." bility from a joint to a several one. tice of this order was served upon, The plaintiff therefore could not and the costs paid to and received have renewed the notes of Woodruff by Carter. No appeal was taken on the faith of defendant's several therefrom. Apparently to remedy liability. the failure of the order to mention a day on which it should be deemed to have been entered, and for other purposes, a further application was made to the court on notice to plaintiff, which resulted in an order directing the order of January 22, 1875, to be amended so as to bear date January 5, 1875, and as amended to be inserted in the printed case, in this action now pending on appeal in the said General Term. This order was appealed from by plaintiff. AMENDMENT. PRACTICE. N. Y. COURT OF APPEALS. Carter, applt., v. Beckwith, adm'rx., et al., respts. Decided Sept. 21, 1880. Before the decision of an appeal in the matter of a lunatic, the lunatic died. Subsequently, the order of the Appellate Court was amended so as to bear date as of a day prior to the death of said lunatic. A further order was afterwards granted fixing such date, and directing the order as amended to be inserted in the printed case on appeal. Held, that so far as the last order supplied the date it was correct, but as to the balance it was erroneous. Amasa J. Parker, for applt. Held, That so far as the order supplied the date omitted from the order of October 25, 1879, it was correct, and must stand; but so A case upon appeal in the matter much of the order as directed that of B., a lunatic, came before the the amended order be inserted in General Term in October, 1874, and the printed case on which the apafter argument was submitted to peal was pending before the Genethat court, B. died, January 15, ral Term was erroneous. An ap1875. The appeal was decided on pellate court cannot direct such an the 22d of that month, and an order alteration of the record as will cause thereon entered. Defendants here- it to state untruly the event of the in served on plaintiff a notice of a trial. motion to be made in October, 1879, to amend the order of General Term of January 22, 1875, so that it should bear date "as of a day in the said General Term of January, 1875, prior to the death of said lunatic." This motion was opposed by the plaintiff, but on October 25, Vol. 10.-No. 21. Jarvis v. Sewall, 40 Barb., 449, and kindred cases distinguished and explained. Order of General Term reversed in part and affirmed in part. Opinion by Danforth, J. All concur. GUARDIANS. JURISDICTION. wife died, leaving the two children N. Y. COURT OF APREALS. In re appointment of general guardian of Hubbard et al. Decided Sept. 21, 1880. The Supreme Court has power to appoint guardians of infants, only where the infants or the property are within its jurisdiction. The bringing of one of the infants into the state by strategem for the purpose of giving jurisdiction will not avail. The father of the infants, becoming insane in 1875, was taken to Rhode Island, and there placed in an asylum. He never afterwards returned to this state to reside, nor was there any property of the infants' here. Held, That the father's legal domicile was Rhode Island, and that the courts of this state had no jurisdiction of a proceeding to appoint a guardian. He never returned to New York to reside after he was taken to Providence in July, 1875. The Special Term held that New York was the domicile of the father and appointed a guardian. The General Term reversed this order, and directed the proceeding to be remitted to the Special Term, for the appointment of H., a resident of Providence and One of the infants in whose behalf the application was made for the appointment of a guardian was the uncle of the infants, as their at the time of such application in guardian. Rhode Island, where she was taken Held, That when these proceedin 1875, and where she has ever ings were instituted Rhode Island since remained. The other had was the legal domicile of the father been in Rhode Island from August, of the infants, and it follows that 1875, until a few days before the their domicile was in that state proceedings were instituted in also, 4 Cow., 516; 26 N. Y., 356; 67 March, 1873, when she was secretly id., 386; Story on Conflict of Laws, taken by a son-in-law of the peti- § 46, and therefore the order of the tioner from the school she was at- Special Term was properly reversed, tending in Providence, without the but that portion of the order of knowledge of her father, or of any General Term appointing H. was of her relatives in Rhode Island, and error, the case not being one of brought into this state, and. taken which the court should have enterto the house of the petitioner, her tained jurisdiction; there being maternal grandfather, where she neither residence, domicile or prophas since lived. Neither of the in- erty to give jurisdiction. fants, so far as appeared, had any property in this state. Their father was living. He was born in Rhode Island, but removed to New York in 1859, where he engaged in business and married. In 1873 his Also held, That the bringing of one of the infants into this state by strategem for the purpose of giving urisdiction will not avail. The Court of Chancery had jurisdiction over the persons and prop erty of infants, and to appoint charged as partners. The appelguardians of their persons and es- lant, Snyder, denied that he was a tates. Story's Eq. Jur., § 1327, et seq. partner. Plaintiff, while the debt This power is now vested in the for which this action was brought Supreme Court, 14 N. Y., 575, but was accruing, was acting as a clerk can only be exerted in respect of for said firm. He did not know, persons or property within the ju- and was not informed until several risdiction. The jurisdiction does not years after the final dissolution of depend upon the legal domicile of the the firm that Snyder was a partner. infants. It is sufficient if the infants He did not hold himself out as are residents within the jurisdiction such. The original firm was conof the court where the proceedings stituted by written articles of coare taken. 10 Cl. and Fin., 43. Prop- partnership between Strang, Platt, erty also gives jurisdiction to ap- and one Ryley. By this instrument point a guardian thereof, although these persons constituted the firm. the infant in whose behalf the ap- Snyder was not a party to it, and plication for guardianship is made the articles did not indicate that he is out of the jurisdiction and a res- was a partner. It appeared that, ident abroad. Jacob, 193; 1 M. & concurrently with the formation of K., 627; 6 Ves., 572. the copartnership, it was arranged Order of General Term, reversing that Snyder should be jointly inorder of Special Term and direct-terested with Ryley in his interest in ing proceedings to be remitted, &c., the firm, that is, that Snyder should modified by making the order one be entitled to receive one-half of Ryof reversal simply. ley's profits, and should be liable Opinion by Andrews, J. All con- for one-half of his losses. No writ cur. PARTNERSHIP. N. Y. COURT OF APPEALS. ing evidencing this arrangement, executed by the parties, was produced. The draft of an agreement was prepared between Ryley and Snyder, conforming to the terms of Burnett, respt., v. Snyder, impl'd, the oral arrangement, but was not applt. Decided Sept. 21, 1880. A contract between one of several partners and a third person, by which the latter is to produced, and it did not appear to have been signed. While the negotiation for forming the partnership was going on, Strang, Platt and Ryley-expressed a desire that Snyder should become interested in the proposed business. This was the wool brokerage and commission business, and Snyder was a large This action was brought to re- dealer in wool, on his own account cover a balance of account of moneys and as purchasing agent for mills deposited with the firm of Strang, with which he was connected. It Platt & Co. The defendants are was first proposed that Snyder share in the profits and losses of the partner with whom the contract is made in the firm business, does not make such third person a partner in the firm, or liable for the partnership debts. should become a copartner in the the partnership assets in preference firm. For prudential reasons, to individual creditors of the partgrowing out of his relations with ner. 18 Wend., 184; 3 Kent., 25; third parties, Snyder declined. His 1 Smith's L. Cas., 984. refusal had no connection with the A contract between one of two question of the liability he would partners and a third person by incur to creditors by becoming a which the latter is to share the propartner. It was then proposed he fits, or the profits and losses of the should take a share of Ryley's in- partner with whom the contract is terest, and the arrangement was made in the firm business, does not concluded on that basis. The evi- constitute such a participation in dence showed that the agreement the profits as will make the person finally made, so far as Snyder was contracting with the partner a partconcerned, was one between him and Ryley, made with the concurrence and knowledge of Strang and Platt and the other members of the firm. The business did not require capital, and none was contributed. Snyder aided the firm by purchases and consignments of wool, but, so far as appeared, took no part in the management of the business. William G. Wilson, for applt. Aaron Pennington Whitehead, for respt. Held, That the duty of establishing that Snyder was in fact a partner, in the absence of any holding of himself out as such was upon plaintiff; that the evidence failed to show that he was such a partner or had such a participation in the profits as would make him liable for the firm debts. ner in the firm or liable for the partnership debts. 76 N. Y., 344; 2 Rose, 252; 6 Madd., 5; 4 Russ., 285; 21 Beav., 596; Col. on Part., 6th ed., § 27. Judgment of General Term, affirming judgment for plaintiff, reversed. Opinion by Andrews, J. All con cur. ATTACHMENT. N. Y. COURT OF APPEALS. Woodmansee et al., applts., v. Rogers, respt. Decided Sept. 21, 1880. A mere levy under an execution is not such an application of the property as to bar the right of subsequent lienors to move to vacate an attachment, under § 682 of the Code. Affirming, S. C., 9 W. Dig., 474. The participation in the profits of The plaintiffs obtained an attacha trade which makes a person a ment against the property of departner as to third persons, is a par- fendant on Oct. 20, 1879. On Oct. 22, ticipation in the profits as such un- 1879, a judgment against defendant der circumstances which give him a was perfected in their favor, and an proprietary interest in the profits execution issued, and by virtue before division as principal trader, thereof the sheriff levied on said 17 Ves., 404; Story on Part., § 49; property the same day. W. Bros. Pars. on Part., 74, and the right to obtained an attachment against dean account as partner, and a lien on fendant's property, which is con ceded to have been subsequent in Otto Horwitz, for applts. EVIDENCE. N. Y. COURT OF APPEALS. Van Gelder et al., respts, v. Van Gelder, applt. Decided June 1, 1880. When the holder of a promissory note parts with the possession of it to the maker, it is a personal transaction between the holder and maker within the meaning of § 399 of the Code of Procedure. The title of an assignee cannot be affected by declarations of the assignor made after the assignment. Held, no error; that under section 682 of the Code, which provides that a subsequent lienor may move to vacate a prior attachment "before the actual application of the This was an action upon a nonattached property or the proceeds negotiable promissory note made thereof to the payment of a judg- and delivered by defendant to S., ment recovered in the action," a his mother, and which was aftermere levy under an execution is not wards transferred by her to plainsuch actual application as to bar tiffs, who were defendant's brothers. the right of the subsequent lienors S. died before the trial. Defendant to make the motion. alleged in his answer that the note While a levy upon sufficient prop-in suit was given to secure the payerty has often been held to be pay- ment of interest on an advancement ment of the debt and to extinguish to him by S, and that two similar the judgment, it is only construct- notes were at the same time given ively so, and with reference to the by plaintiffs to S., it being underequitable rights of others, and the stood that they should be void upon judgment may, nevertheless, not be the death of S. It appeared that in fact paid. when these notes were given S. executed a will will dividing her Said section means an actual and real application of the property or property equally among her three its proceeds as distinguished from a sons, which will was afterwards constructive one. The evil at which destroyed. Subsequently, in consaid section was aimed was a delay sideration that plaintiff's should prowhich has in fact transferred the vide two-thirds of the support of S. property or its proceeds upon a lien and her husband, she conveyed all fully and completely enforced, and her property to them, except some such evil does not exist where there real estate which she had before is merely a levy under which neither the property nor its proceeds have actually and in fact passed to the creditor. Order of General Term, affirming order granting motion, affirmed. Opinion by Finch, J. All concur. that conveyed to defendant, and of which he had entered into possess ion, and upon which he had made improvements. Defendant claimed that after the will was destroyed, and before she executed to him the deed of the premises, he had taken |