for the payment of the installment in favor of relator, modified so as of principal and interest to become to direct the writ to be quashed. due during the year 1879 on the bonds of the town issued in payment of the improvement in question. The collector's warrant was issued December 21, 1878, and the order to show cause why the writ of certiorari should not issue was made January 6, 1879, and the writ was issued February 4, 1879, on which day judgment was entered, directing that the sum of $11,180, inserted in the tax roll of the town of Flushing, for the payment of principal and interest on the bonds, be stricken therefrom, and that the warrant for the collection be amended accordingly. When the writ was issued the tax roll was not in possession of the defendant. Neither the tax roll nor warrant were before the court when the judgment was rendered on the return of the writ. Geo. W. Van Sicklen, for applt. Downing & Stanbrough, for respt. Held, That the jurisdiction of the supervisors and the power of the board to change the roll terminated with the levy of the tax and the delivery of the tax roll and warrant to the proper town officer, and the direction to the supervisors N. Y. COURT OF APPEALS. Eggleston, respt., v. The President, &c., of The Columbia Turnpike Road, applt. Decided Oct. 5, 1880. Plaintiff was injured by reason of his horse becoming frightened at a pile of stones by the side of the road, which had been placed there a week before for the purpose of repairing a bridge. Held, That if the stones had a tendency to frighten horses and was of a dangerous character, although not technically a defect or obstruction in the highway, defendant was liable for damages caused to travelers thereby after due notice and neglect to remove them. The secretary and treasurer of the company is a proper person on whom to serve such notice, and a notice of four or five days before an accident is sufficient. H., an officer of the company, having testified that he received the notice about the time of the accident, one P. testified that he gave the notice four or five days before. P.'s wife testified that P. had no conversation with H. on the day of the accident. She was then asked if on that day P. told the toll-gate keeper that he gave H. notice a week before. Held, That the question was incompetent. Reversing S. C., 8 W. Dig., 323. This action was brought by plaintiff to recover damages for injuries. to his person and property while traveling upon the defendant's road, alleged to have been caused by de to correct or amend the warrant was wholly unavailing; that the relator could not in this proceeding be relieved from the alleged illegal tax, and the writ should have been quashed. 15 Wend., 211; 1 Hill, fendant's negligence. It appeared 195; 2 id., 10; 49 N. Y., 655; 9 Hun, 609. Judgment of General Term, reversing judgment of Special Term Vol. 10.-No. 24* that on September 28, 1875, plaintiff was driving his horse upon said road, hitched to a skeleton wagon, and when upon a bridge the horse H. E. Sickels, for applt. She was frightened by a pile of stones o'clock, which by other evidence. in the road and sprang over the appeared to have been on the same bridge, breaking his leg, injur- day and about the time the accident ing plaintiff and damaging the happened. Plaintiff called one P. wagon. The stones had been as a witness, who testified that he placed beside the traveled part of gave the notice four or five days bethe road, under direction of defend- fore the accident. P.'s wife was ant, one week before the accident, then called as a witness by plaintiff, for the purpose of repairing the and she testified that she was with bridge. Plaintiff gave evidence her husband on the day H. testified tending to show that the stones had the notice was given to him, and a tendency to frighten horses trav- that he did not have any conversaeling upon the road, and had actu- tion with H.; that he did not conally frightened horses. verse with any one at the toll-gate except C., the gate-keeper. was then asked if her husband then told C. that he had given H. notice a week before that these stones. frightened horses, or that he had told H. about it the week before. This was objected to as leading, illegal, improper and immaterial, and as seeking to prove a conversation between third persons and of an inadmissible character. The objection was overruled and an exception taken, and the witness answered that her husband said: "Those stones were a bad thing, and I told It appeared that four or five days him so and wished them to be rebefore the accident notice. was moved; that my horse had been given to one H., who was defend- frightened." ant's secretary and treasurer, and Held, error; that the question was had some part in the practical man- clearly incompetent and the eviagement and superintendence of dence should not have been rethe road; the notice was given ceived; what P. said to C. was when H. was out upon the road. immaterial, and the evidence was Held, That if the pile of stones had a tendency to frighten horses and was of a dangerous character, although not technically a defect in the highway, defendant could be made liable for damage caused to travelers thereby after notice of its character and neglect to remove it. 9 Barb., 161; 39 id., 329; 42 Me., 522; 30 Conn., 129; 42 N. H., 199; 48 id., 18; 41 Vt., 435; S. & R. on Neg., 445, 466. Held, That H. was the proper designed and tended to fortify P.'s person on whom to serve notice, evidence, previously given, that he and that the notice was sufficient; had notified H. prior to the day of also that defendant was entitled to the accident, and so was injurious. a reasonable time after receiving no- Judgment of General Term, affirmtice in which to remove the stones. ing judgment on report of referee H. testified that he received the for plaintiff, reversed, and new trial notice on a certain day about 10 granted. except Miller, J., taking no part. Opinion by Earl, J. All concur, having exerted the power to refuse to hear a defendant who was in contempt of the court by disobeying its CONTEMPT. STRIKING OUT order, the Supreme Court had au ANSWER. N. Y. COURT OF APPEALS. Walker, respt., v. Walker, applt. Where a defendant refuses or neglects to obey an order directing the payment of alimony he is in contempt, and the court has authority to order that his answer be stricken out, and that the action proceed as if no answer had been interposed. thority to make the order complained of. 1 Johns., Ch. 527-529 ; 47 N. Y., 40-49; Reporter, Coop. Temp. Cott, 211; 3 Myl. and Cr., 191; 2 R. S., 199, §§ 21 et seq.; id., $26; Rev. Note, 5 Edm. Stat., 411; 4 Wend., 196; 9 How. Pr., 231; 15 id., 568; 41 id., 169. It is always in the power of the defendant, in a case like this, to apply to the court and show that the order was irregularly made, or for leave to purge himself of the conempt, and be let in again to make his defense. 47 N. Y., 40. This was an appeal from an order of General Term, affirming an order of Special Term directing that unless defendant pay certain sums as temporary alimony, counsel fees and costs within five days from the date of the service of the order upon his attorney, then and upon his cur. default his answer should be stricken out, and Order of General Term, affirming order of Special Term, affirmed. Opinion by Folger, Ch. J. All con from the SURETYSHIP. SURROGATES. order striking out the defendant's answer and directing an order of reference as if no answer had been interposed. It was claimed that the court had no power to make the order; that every defendant has a vested right to make a defense to any action or suit or legal proceeding against him, and that he cannot be deprived of it. Samuel Hand, for applt. Held, That defendant, having refused or neglected to obey an important order of the court, was in contempt, and liable to punishment by reason thereof; that the Supreme Court, having all the power and authority that formerly existed in chancery in England, and that court N. Y. COURT OF APPEALS. Gerould, respt., v. Wilson, impl'd., applt. Decided Sept. 21, 1880. An administrator's bond was conditioned that he should obey all the orders of the surrogate of the county of O. It was filed in S. county, and letters were issued by the surrogate of that county. The bond provided that the principal should faithfully discharge his trust and obey all orders of any other court or officer having jurisdiction in the premises. Held, sufficient; that the surrogate of S. falls within the requirements of the statute and the force of the condition in the bond. When persons become sureties on the bond of an administrator they make themselves privy to the proceedings against their principal, and when he, without fraud or collusion, is concluded, they are also concluded. A surrogate has power, even after letters of administration have been revoked, to decree distribution of a fund received by the administrator before such revocation. It appeared that the letters of administration were revoked. Afterwards, on plaintiff's application, an order was made by the surrogate diThis was an action upon an ad-recting the administrator to render ministrator's bond against defend- a final account. He appeared and ant, who was a surety upon it. The submitted to the jurisdiction of the bond was filed in Steuben County, surrogate, rendered his account, and and letters of administration issued it was found and decreed that there by the surrogate of that county. was a certain sum due plaintiff, and By mistake it was conditioned that the surrogate made an order that the administrator should "obey all the administrator should pay it to the orders of the surrogate of the her. It also appeared that the county of Ontario." The bond was money he was ordered to pay plainconditioned that the principal tiff had come into the administrashould faithfully execute the trust tor's hands before the letters were reposed in him as administrator, and revoked, and that no one had been that he would obey all orders of any appointed in his place. other officer or court having jurisdiction in the premises touching the administration of the estate committed to him. Held, That the surrogate had power to make the order and decree the distribution, although the letters had been revoked. 2 R. S., 92, § 52; 6 Paige, 95; 62 Barb., 577. When persons become sureties upon the bond of an administrator they make themselves privy to the and when he, without fraud or collusion, is concluded, they are also concluded. 58 N. Y., 315; 72 id., 565, William Rumsey, for applt. Henry M. Field, for respt. Held, That the provisions of the bond were a sufficient compliance with the requirements of the stat-proceedings against their principal, ute, 2 R. S., 77, § 42; that as the letters of administration were issued by the surrogate of Steuben County, he falls within the requirement of the statute and the force of the condition as expressed in the bond. That this bond is not open to the objections to bonds taken by an officer to and for himself, and which need follow more closely the stat Order of General Term, reversing judgment for defendant, affirmed, and judgment absolute for plaintiff on stipulation. Opinion by Folger, Ch. J. All concur. LICENSE TO SELL MILK. utes or be held as taken colore offi- MUNICIPAL CORPORATIONS. cii and so void. 23 Wend., 606. In a case like the present the substance is looked for more than the form, even though it be a surety that is to be held. 1 Johns. Ch. 607; 26 Wend., 502; 58 N. Y., 315; 2 R. S., 556, § 33. N. Y. COURT OF APPEALS. The Common Council of Syracuse, in 1877, a license. Held, That it was within the scope of the general and particular powers of the city to pass the ordinance, and that an act incorporating a milk association gave it no greater rights than individuals had; that the power to unite and sell milk as an association is not a power to sell it in disregard of the city ordinances. passed an ordinance forbidding persons to Also held, That the act incorporatsell milk in the streets of said city without ing the Onondaga County Milk Association gave it no greater right to sell milk in Syracuse than any individual had, and the mere coming together as corporators gave the members of the association no greater rights in that respect than they already had as individuals; that the power to unite and sell milk in Syracuse as an association is not a power to sell it in disregard of those ordinances the city may lawfully make for the regulation of business within its The relator is an employee of the Onondaga County Milk Association, a corporation organized under a special act of the Legislature, Laws 1872, chap. 102, for the purpose of supplying the inhabitants of Syra- limits. cuse with pure and wholesome milk. Judgment of General Term, afHe was convicted in the Police firming judgment of conviction, Court of the City of Syracuse for affirmed. except Rapallo, J., not voting. MUNICIPAL CORPORATIONS. SLAUGHTER-HOUSES. selling milk in the streets of said. Per curiam opinion. All concur, city without a license, contrary to the provisions of an ordinance of the city passed in 1877, making it unlawful for persons to sell milk in said streets without a license, and empowering the mayor to grant license "to such persons as, in his judgment, shall appear proper and best calculated to secure to the inhabitants of the city pure and wholesome milk." D. Pratt, for applt. Held, That the license was for the purpose of securing to the citizens a supply of pure and wholesome milk; that and the fee paid therefor are a means of regulation and control, and the penalty for violating the ordinance a means of enforcing a proper restraint upon the persons by whom milk is offered; and it was within the scope of the general and particular power of the city to pass the ordinance. Laws of 1857, ch. 63, p. 114; 57 N. Y., 591. N. Y. COURT OF APPEALS. Cronin, plf. in error, v. The People, defts. in error. Decided Oct. 12, 1880. The charter of Albany authorizes the Common Council to enact ordinances with penalties in the matter, and for the purposes thereinafter named, among which was "to regulate the erection, use and continuance of slaughterhouses." Held, Sufficient to authorize the passage of an ordinance forbidding the slaughtering of cattle within certain limits, and directing the manner of conducting such business in the localities where it is not forbidden. An ordinance excluding from specified locali ties the business of slaughtering cattle is a regulation of the business and is not void as in restraint of trade. Affirming S. C., 10 W. Dig., 16. The plaintiff in error was indicted for slaughtering cattle in violation. of an ordinance of the Common |