7. Unless a verdict is clearly and manifestly against the evidence the Court of Appeals will not set it aside.-Levy v. The People,

139.

was

9. In an action to recover an award made by arbitrators, defendants alleged that the award was void, and asked that it be vacated and the submission revoked. Judgment was rendered for plaintiffs, which reversed by the General Term and a new trial granted, on the ground that the award was invalid. Plaintiffs appealed therefrom, and gave the usual stipulation. The order of General Term was affirmed, and judg ment absolute given for defendants on the stipulation. Judgment was thereupon entered, declaring the submission and all proceedings thereunder, void. Held, That the effect of the stipulation was, in case of affirmance, to give defendants such a judg ment as the facts alleged entitled them to; that the judgment must be absolute against the appellants upon the whole matter in controversy; that the judgment was too broad; defendants were entitled, on the facts, to have the award adjudged void, but the submission should stand.-Hiscock et al. v. Harris et al., 141.

10. The Appellate Court will not disturb the verdict of a jury where there was a conflict of evidence upon the issues raised by the pleadings and submitted to them.-Dilleber v. The Home Life Ins Co., 180.

11. It is the duty of the respondent to enter judgment of affirmance, and to prepare and file a proper judgment roll in pursuance of the decision of the General Term. The ap. pellant has a right to insist upon the performance of this duty.-Knapp v. Roche, 187. 12. Where the proof on the second trial of an action is the same as on the first, on an appeal from the second trial, the last General Term is bound by the decision of the same tribunal on the first decision.- McKenna v The N. Y. C. & H. R. RR. Co., 223.

13 A complaint in an action commenced in 1875, demanded judgment for $400, with interest from the day before the action was commenced. Judgment was rendered for defendant in 1877, which was affirmed on appeal in September, 1878. Held, That as the amount in controversy, with interest to September, 1878, was less than $500, an appeal would not lie to the Court of Appeals. -Van Gelder v. Van Gelder, 234.

14. The General Term may reverse a judgment upon the facts, without reference to any exceptions.-Hill v. Hill, 239.

15. An appeal to the Court of Appeals will not lie from an order granting a new trial in a proceeding to determine and enforce a claim against an estate.-Roe v. Boyle et al., 260.

16. Such a proceeding can only be tried before a referee.-Id.

17. In a submitted controversy, non-compliance with the Code of Civil Procedure, SS 1279-1280, is sufficient ground for the dismissal of an appeal taken from the decision therein made.-Odell v. Cromwell, 273.

18. Where an answer is stricken out as frivolous, but before such order was made an amended answer had been served, such order, if erroneous, does not affect the final judgment and cannot be reviewed on appeal. -The Mutual Life Ins. Co. v. Hoyt, 275. 19. No appeal lies to the General Term from an order of a County Court made in an action begun in a Justice's Court.-Roberts v. Marson et al., 292.

20. An order made entirely upon grounds resting within the discretion of the court is not appealable to the Court of Appeals.-Mills v. Hildreth, 311.

21. Where the evidence preponderates so decidedly against certain conclusions of facts found by the referee, as to convince the appellate court that the referee has erred in his findings, the appellate court will reverse the findings and judgment based thereon, and direct a new trial-The Patent Elastic Felt Co. v. Spencer, 317.

22. An order of General Term, reversing a judgment entered on the verdict of a jury and an order denying motion for a new trial on the minutes and granting a new trial, is not appealable to the Court of Appeals.— Whitson v. David, 341.

23. Upon appeal from an order denying a motion to vacate a previous order, the appellate court will not listen to the objection that the notice of motion to vacate did not specify the irregularities or grounds upon which it was sought to vacate the original order, unless it appears that such objection was made in the court below.-Miller et al. v. Kent, 361.

24. The Court of Appeals cannot take official notice that the laws of another state differ from those of this state.-The Phoenix Ins. Co. v. Church, 376.

25. The Supreme Court has power to open defaults, vacate judgments, and permit pleadings to be served in furtherance of the ends of justice; the exercise of this power is discretionary, and will not be interfered with by the Court of Appeals.-Vanderbilt v. Schreyer, 377.

26. An order of General Term, affirming an order discharging a defendant from arrest, is not reviewable by the Court of Appeals, where it cannot be said from the orders that they were not made on the merits.-Townsend et al. v. Nebenzahl, 398.

27. The Court of Appeals cannot look into the opinion of the General Term to find matter differing from that in the order, unless the language of the order is ambiguous and

needs to have explained the ground on
which it was made.-Id.

28. On probate of a will, the sole surviving
attesting witness was taken by the stenogra-
pher as testifying that he signed the will
before the testator. An application, made
upon the affidavit of the subscribing witness,
to have the case reopened for the further
examination of the witness was granted.
Held, That the matter rested in the discretion
of the surrogate, and that no appeal from
his decision would lie to the Court of Ap-
peals; that if his decision had been other-
wise, it would have been such an abuse of
discretion as to require a reversal of the
order.-Martinhoff v. Martinhoff et al., 405.
29. Before an appellate court can hold that a
party has stipulated away or waived any of
his rights, it must appear from the case as
settled that he has done so, or the statements
of the trial judge to that effect must be un
disputed.-Hazewell v. Coursen, 419.

30. In a case on appeal from the Supreme Court
to the Court of Appeals, a motion to amend
the undertaking on appeal is properly made
in the Supreme Court.-Sullivan v. Conners,
455.

་

31. Not having a printed blank form of under-
taking without a stay. appellant's attorney
used a blank intended for use when a stay is
sought. He struck from the blank the usual
recital relating to a stay, but by inadvertence
and mistake omitted to strike therefrom the
operative clause. A motion on an order to
show cause was made to amend such under-
taking, so that the liability of the sureties
would be for costs instead of for the judgment.
The motion was granted. Held, The motion
was proper and the order rightfully granted.
-Id.

therefor been regularly made.-Berdell v.
Berdell, 528.

35. An appeal will not lie to the Court of Ap-
peals, from an order of General Term revers-
ing a judgment where it cannot be maintained
that the uncontroverted facts entitled the
respondent below to an affirmance.-The
American National Bk. v. Wheelock, 540.

36. An order of General Term suspending an
attorney from practice is reviewable by the
Court of Appeals While the measure of
punishment is within the discretion of the
court below, the adjudication of guilt or in-
nocence upon the facts is not so far the sub-
ject of discretion as to be beyond review.-In
re Eldredge, 566.

27. On appeal in these cases no undertaking
was given, and no return filed. Held That
no appeal was pending.-The Benedict & B.
Mfg. Co. v. Thayer, 572.

See CERTIORARI; COSTS 7, 9; NATIONAL BANKS,
3; PLEADING, 10; PRACTICE. 3, 11; REFER-
ENCE, 12, 13, 16, 19, 20; REVIVOR, 5; SUR-
ETYSHIP, 2, 3; SURROGATES, 1.

ARBITRATION.

1. On a proceeding before arbitrators plaintiff
insisted on calling witnesses to disprove de-
fendant's statements, which was refused, on
the ground of want of power under the sub-
mission to receive anything but the state-
ments. Held, That plaintiff, to preserve his
rights, was not bound to actually pro-
duce or name his witnesses, or to state
what facts he intended to prove by them;
that his declaration that the evidence was
intended to contradict defendant's statement
was all that was necessary; that unless the
arbitrators were correct in their construction
of the submission, the refusal to receive the
evidence was misconduct which would
vitiate the award.- Halstead v. Seaman, 539.
2. The submission was in the usual form, and
contained a clause that the arbitration should
be conducted and decided on the principle of
fair and honorable dealing between man and
man. Held, That this would not justify
their decision.-Id.

3. Arbitrators are not the exclusive judges of
their own powers. The court is to decide
whether they have exceeded their powers or
refused to exercise them.-Id.

ARREST.

1. When judgment is obtained in an action in
which an order of arrest has been issued-
and the defendants are charged in execution,
the order of arrest is extinguished, and can-
not be revived by a reversal of the judg
ment.-The People ex rel. Roberts et al. v.
Bowe, 174.

2. An order of arrest cannot be upheld where
two or more causes of action are united, any

one of which does not present a proper case for an arrest.-Easton et al. v. Cassidy, 190. 3. If the arrest is for fraud, the same must be distinctly alleged in the complaint, so as to present a definite issue for the jury.—ld.

4. An order of arrest under subdivision 4, of sec. 550 of the Code of Civil Procedure, which in terms directs the sheriff to hold the defendant to bail by requiring a bond to the effect that defendant will obey the direction of the court, &c., following the requirements prescribed by sub. 1 of sec. 575, is not on that account irregular. It is quite proper to furnish the officer with this specific guidance.-Boucicault v. Boucicault, 247.

5. The defendant's right to the jail liberties, under sec 149, is not in the least affected by the direction aforesaid. He could give such limit bond, whether he gave the bail bond or not.-Id.

6. An order of arrest, in an action for absolute divorce, is properly granted under sub. 4 of sec. 550 of the Code, where the affidavit on which same is based shows that defendant is about to depart from the state with no present intention of returning, except, possibly, to pass through it, and that he is to sail for Europe within a month, to be gone indefinitely. -Id.

7. An order of arrest having been granted in an action for conversion, appeared, on motion to vacate, that plaintiff had accepted from appellant's wife a confession of judg. ment for the value of the goods, which declared that the goods had been sold and delivered to her; and it also appeared that plaintiff had issued execution thereon, and collected a portion of the judgment. Held, That the order should be vacated; that plaintiff, by his acts, must be deemed to have made his election to treat the goods as the property of defendant under a sale by himself.-Field v. Bland, 284.

8. Under the Old Code, the exoneration of bail after twenty days was a matter of discretion. -Mills v. Hildreth, 311.

9. Where the facts on which an order of arrest is granted are not extrinsic to the cause of action, but the nature of the action alone warrants the granting of such order, the order should not be vacated on evidence tending to disprove the cause of action, as the merits of the controversy should be allowed to wait the trial thereof.-Peck v. Lombard, 456. 10. In an action brought to recover a penalty an order of arrest may be granted on an affidavit simply showing the existence of such sufficient cause of action.-Id.

See APPEAL, 26; EXECUTION, 6; TRESPASS, 1.

ARSON.

1. On the trial of one accused of being accessory to the crime of arson, it is not erroneous to allow facts to be shown which tend to show

the guilt of the principal.-Levy v. The People, 139.

2. Evidence that the prisoner conferred with the principal after the fire is admissible. -Id.

3. An indictment for being accessory to arson in the first degree charged that the building burned was the dwelling-house of one K. It appeared that the building was occupied by several persons, one of whom was K.; that it contained many rooms, with one outlet to the street; that the fire broke out in the night, and burned only the realty in the prisoner's rooms. Held, that a conviction of arson in the first degree was proper.— Id.

3.

The City of New York has power to determine to grade a street, or do a public work of that kind at its own expense, and after it is done to assess the expense and collect it the same as in the case of an estimate and assessment before he work is begun, and the board of revision has jurisdiction to confirm such an estimate and assessment.-In re petition of Roberts, 227.

4. Where a delay of seven years after confirmation thereof, in moving to vacate an assessment laid upon property in the city of New York, is accompanied by circumstances showing a change in the relative positions of the persons affected, which change, wrought by the lapse of time, places the parties injuriously affected in a worse position than they would have been if the application had been seasonably made for the vacation of the assessment, such delay, under the circumstances, constitutes such laches that the court should refuse to vacate the assessment. In re petition of Lord, 299.

5. When a party purchases land from seven to ten years after the lien of an assessment sale attached, he will not be allowed to attack the validity of such assessment or sale, without showing to the court that he was not in any way indemnified by his vendors against such liens. In re petition of Saunders,

351.

6. The fact that one of the commissioners appointed under ch. 670, Laws of 1871, was not a freeholder, as required by the statute, does not constitute a jurisdictional defect on the face of the proceedings. The court, by his appointment, adjudged him a freeholder, and

that was final until corrected by a direct pro-
ceeding for that purpose.-Dederer v. Voorhis
et al., 407.

7. The complaint alleged that the commissioners
first appointed performed their duties and
made their report, but failed to act on the
awards made, and fraudulently suppressed
said report, and procured other persons to be
appointed, and that the record did not show
these facts, but falsely and fraudulently shows
that the proceedings of the commissioners
last appointed were regular. On demurrer,
Held, that these allegations make out a cause
of action; that chap. 395, Laws of 1874, con-
firming the assessment, does not apply to or
cover frauds, and cannot cure defects of that
character. Id.

sessments is invalid where interest is added
to the assessments from the dates of confirma
tion thereof, instead of from the dates that
the assessments were subsequently entered
in a record of the "titles of assessments

with date of confirmation, &c., to be kept in 4.
the street commissioners' office, as provided
by section 6, of chapter 579, of Laws of
1853, for the reason that an unauthorized
amount of interest is included in the assess-
ments. In re petition of Austin, 488.

9. No assessment is due or a lien until such entry
is made, and interest can be added only from
the date of such entry; but a person acquir-
ing title to such land after such sale for as-
sessments is presumptively not a party ag-
grieved so as to permit such sale to be
vacated on his behalf.-Id.

See CLOUD ON TITLE, 2; JOINT STOCK COM-

PANIES.

ASSIGNMENT.

receives assets, the subsequent discharge in
bankruptcy of the assignor does not bar or
affect the relations of the assignee to the
creditors of the assignor.-Smith v. Tighe et
al., 297.

Where an assignment for creditors contains
no provision giving any preference to taxes,
or directing their payment at all, except as
embraced in the general and unpreferred
debts, the court cannot direct the assignee to
pay the taxes in arrear.—In re assignment of
Lewis, 368.

ATTACHMENT.

1. The assignment of a judgment to the at-
torneys was made in part to secure promis
sory notes previously given by the clients and
partly in payment of professional services. 3.
They knew all the facts of the case at the
time, and did not take it under a prior
agreement. Held, That it was taken subject
to all equities between the client and the
judgment creditors.-Davidson et al., v. Al-
faro et al., 56.

2. When for a valuable consideration from the
payee an order is drawn on a third party,
and made payable out of a particular fund
then due or to become due from him to the

drawer, the delivery of the order to the
payee operates as an assignment pro tanto of
the fund, and the drawee is bound, after
notice thereof, to apply the fund as it accrues
to the payment of the draft, and to no other
purpose, and the payee may, by action, com-
pel such application.-Brill et al v. Tuttle,

468.

See CONTRACT, 10; EVIDENCE, 25; LIFE INSUR-
ANCE, 1, 2; MORTGAGE, 20.

4.

A sheriff, who, by virtue of an attachment,
seizes property pursuant to § 644 of the
Code, and also takes possession of the books
pertaining to the business, as directed by
said section, has no right to submit said
books to the examination of the plaintiff in
said attachment action, nor to experts acting
in the behalf of said plaintiff, nor to examine
them himself, except for the pure purpose of
his trust, and only as is necessary to execute
the process.-Garden et al. v. Sabey, 33.
Plaintiffs procured an attachment against
defendants as non-residents, but failed to
commence publication of the summons with-
in thirty days, one of the defendants having
requested them to suspend proceedings,
Held, the attachment fell by reason of the
omission to publish the summons in time;
that the request to suspend proceedings did
not estop defendants from setting up a want
of publication or service.-Mojarietta et al. v.
Saenz et al., 61.