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 Per curiam opinion. All concur. bonds of the town issued in payment of the improvement in question. The collector's warrant was


EVIDENCE. issued December 21, 1878, and the order to show cause why the writ N. Y. COURT OF APPEALS. of certiorari should not issue was

Eggleston, respt., v. The President, made January 6, 1879, and the writ

&c., of The Columbia Turnpike was issued February 4, 1879, on Road, applt. which day judgment was entered, directing that the sum of $11,180,

Decided Oct. 5, 1880. inserted in the tax roll of the town Plaintiff was injured by reason of his horse of Flushing, for the payment of becoming frightened at a pile of stones by principal and interest on the bonds, the side of the road, which had been placed be stricken therefrom, and that the

there a week before for the purpose of re

pairing a bridge. Held, That if the stones warrant for the collection be amend

had a tendency to frighten horses and was of ed accordingly. When the writ was

a dangerous character, although not techni. issued the tax roll was not in pos- cally a defect or obstruction in the highway, session of the defendant. Neither


defendant was liable for damages caused to the tax roll nor warrant were be

travelers thereby after due notice and

neglect to remove them. fore the court when the judgment The secretary and treasurer of the company is was rendered on the return of the

a proper person on whom to serve such nowrit.

tice, and a notice of four or five days before

an accident is sufficient. Geo. W. Van Sicklen, for applt.

H., an officer of the company, having testified

that he received the notice about the time of Downing & Stanbrough, for respt.

the accident, one P. testified that he gave Held, That the jurisdiction of the the notice four or five days before. P.'s supervisors and the power of the

wife testified that P. had no conversation

with H. on the day of the accident. She board to change the roll termin

was then asked if on that day P. told the ated with the levy of the tax and

toll-gate keeper that he gave H. notice a the delivery of the tax roll and week before. Held, That the question was warrant to the proper town officer, incompetent. and the direction to the supervisors Reversing S. C., 8 W. Dig., 323. to correct or amend the warrant This action was brought by plainwas wholly unavailing; that the re- tiff to recover damages for injuries lator could not in this proceeding be to his person and property while relieved from the alleged illegal tax, traveling upon the defendant's road, and the writ should have been alleged to have been caused by dequashed. 15 Wend., 211; 1 Hill, fendant's negligence. It appeared 195; 2 id., 10; 49 N. Y., 655; 9 that on September 28, 1875, plainHun, 609.

tiff was driving his horse upon said Judgment of General Term, re- road, hitched to

road, hitched to a skeleton wagon, versing judgment of Special Term and when upon a bridge the horse

Vol. 10.-No. 24*

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. Pi'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 H. E. Sickels, for applt.

except C., the gate-keeper. She

was then asked if her husband then E. Countryman, for respt.

told C. that he had given H. notice Held, That if the pile of stones had a week before that these stones a tendency to frighten horses and frightened horses, or that he had was of a dangerous character, al- told H. about it the week before. though not technically a defect in This was objected to as leading, ilthe highway, defendant could be legal, improper and immaterial, and made liable for damage caused to as seeking to prove a conversation travelers thereby after notice of its between third persons and of an character and neglect to remove it. inadmissible character. The objec9 Barb., 161; 39 id., 329; 42 Me., tion was overruled and an exception 522; 30 Conn., 129; 42 N. H., 199; taken, and the witness answered 48 id., 18; 41 Vt., 435; S. & R. on that her husband said: “Those Neg., 445, 466.

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 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.

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Opinion by Earl, J. All concur, having exerted the power to refuse except Miller, J., taking no part. to hear a defendant who was in con

tempt of the court by disobeying its CONTEMPT. STRIKING OUT order, the Supreme Court had auANSWER.

thority to make the order comN. Y. COURT OF APPEALS.

plained of. 1 Johns., Ch. 527–529 ;

47 N. Y., 40–49; Reporter, Coop. Walker, respt., v. Walker, applt. Temp. Cott, 211; 3 Myl. and Cr., Decided Oct. 5, 1880.

191 ; 2 R. S., 199, SS 21 et seq. ; id.,

$ 26; Rev. Note, 5 Edm. Stat., 411; Where a defendant refuses or neglects to obey an order directing the payment of alimony he 4 Wend., 196; 9 How. Pr., 231; 15 is in contempt, and the court has authority to id., 568; 41 id., 169. order that his answer be stricken out, and It is always in the power of the that the action proceed as if no answer had defendant, in a case like this, to apbeen interposed.

ply to the court and show that the This was an appeal from an order order was irregularly made, or for of General Term, affirming an order leave to purge himself of the conof Special Term directing that empt, and be let in again to make unless defendant pay certain sums his defense. 47 N. Y., 40. as temporary alimony, counsel fees Order of General Term, affirming and costs within five days from the order of Special Term, affirmed. date of the service of the order upon

Opinion by Folger, Ch. J. All conhis attorney, then and


bis default his

should be stricken out, and

from the

SURETYSHIP. SURROGATES. order striking out the defendant's answer and directing an order of

N. Y. COURT OF APPEALS. reference as if no

answer had

Gerould, respt., v. Wilson, impl’d., been interposed. It was claimed

applt. that the court had no power to make the order; that every defend

Decided Sept. 21, 1880. ant has a vested right to make a de- An administrator's bond was conditioned that fense to any action or suit or legal he should obey all the orders of the surroproceeding against him, and that he gate of the county of O. It was filed in S.

county, and letters were issued by the surcannot be deprived of it.

rogate of that county. The bond provided Samuel Hand, for applt.

that the principal should faithfully discharge John B. Perry, for respt.

his trust and obey all orders of any other Held, That defendant, having re

court or officer having jurisdiction in the fused or neglected to obey an im

premises. IIeld, sufficient; that the surro

gate of S. falls within the requirements of portant order of the court, was in

the statute and the force of the condition in contempt, and liable to punishment the bond. by reason thereof; that the Supreme When persons become sureties on the bond of

an administrator they make themselves privy Court, having all the power and au

to the proceedings against their principal, thority that formerly existed in

and when he, without fraud or collusion, is chancery in England, and that court concluded, they are also concluded.



A surrogate has power, even after letters of It appeared that the leiters of ad

administration have been revoked, to decree ministration were revoked. Afterdistribution of a fund received by the administrator before such revocation.

wards, 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 “

uld “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 juris

Held, That the surrogate had diction in the premises touching the power to make the order and decree administration of the estate commit- the distribution, although the letters ted to bim.

had been revoked. 2 R. S., 92, § 52 ; William Rumsey, for applt. 6 Paige, 95; 62 Barb., 577. Henry M. Field, for respt.

When persons become sureties Held, That the provisions of the upon the bond of an adininistrator bond were a sufficient compliance they make themselves privy to the with the requirements of the stat- proceedings against their principal, ute, 2 R. S., 77, 8 42; that as the let- and when he, without fraud or colluters of administration were issued sion, is concluded, they are also conby the surrogate of Steuben County, cluded. 58 N. Y., 315; 72 id., 565, , he falls within the requirement of

Order of General Term, reversing the statute and the force of the con- judgment for defendant, affirmed, dition as expressed in the bond. and judgment absolute for plaintiff That this bond is not open to the on stipulation. objections to bonds taken by an of- Opinion by Folyer, Ch. J. All ficer to and for himself, and which concur. need follow more closely the statutes or be held as taken colore offi- MUNICIPAL CORPORATIONS. cii and so void. 23 Wend., 606. LICENSE TO SELL MILK. In a case like the present the sub

N. Y. COURT OF APPEALS. stance is looked for more than the form, even though it be a surety that The People ex rel. Larrabee, opplt., is to be held. 1 Johns. Ch. 607; 26 v. Mulholland, police justice, respt. Wend., 502; 58 N. Y., 315; 2 R. S., Decided Oct. 12, 1880. 556, $ 33.

The Common Council of Syracuse, in 1877,

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 Assoa license. Held, That it was within the scope of the general and particular powers

ciation gave it no greater right to sell of the city to pass the ordinance, and that milk in Syracuse than any individual an act incorporating a milk association gave had, and the mere coming together it no greater rights than individuals had; as corporators gave the members of that the power to unite and sell milk as an

the association no greater rights in association is not a power to sell it in disregard of the city ordinances.

that respect than they already had

as individuals; that the power to The relator is an employee of the unite and sell milk in Syracuse as Onondaga County Milk Association,

an association is not a power to sell a corporation organized under a it in disregard of those ordinances special act of the Legislature, Laws the city may lawfully make for the 1872, chap. 102, for the purpose of

regulation of business within its 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. selling milk in the streets of said

Per curiam opinion. All concur, city without a license, contrary to

except Rapallo, J., not voting. the provisions of an ordinance of the city passed in 1877, making it unlawful for persons to sell milk in MUNICIPAL CORPORATIONS. said streets without a license, and

SLAUGHTER-HOUSES. empowering the mayor to grant N. Y. COURT OF APPEALS. license “ to such persons as, in his judgment, shall appear proper and

Cronin, plf. in error, v.

The best calculated to secure to the in- People, defts. in error. habitants of the city pure and

Decided Oct. 12, 1880. wholesome milk.”

The charter of Albany authorizes the ComD. Pratt, for applt.

mon Council to enact ordinances with penal

ties in the matter, and for the purposes Martin A. Knupp, for respt. thereinafter named, among which was “to

Held, That the license was for the regulate the erection, use and continuance of purpose of securing to the citizens slaughterhouses.Held, Sufficient to author

ize the passage of an ordinance forbidding a supply of pure and wholesome

the slaughtering of cattle within certain milk; that and the fee paid there- limits, and directing the manner of conductfor are a means of regulation and ing such business in the localities where it control, and the penalty for vio

is not forbidden.

An ordinance excluding from specified locali. lating the ordinance a means of en

ties the business of slaughtering cattle is a forcing a proper restraint upon the

regulation of the business and is not void as persons by whom milk is offered ; in restraint of trade. and it was within the scope of the Affirming S. C., 10 W. Dig., 16. general and particular power of the The plaintiff in error was indicted city to pass the ordinance. Laws of for slaughtering cattle in violation 1857, ch. 63, p. 114 ; 57 N. Y., 591. of an ordinance of the Common

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