Sidebilder
PDF
ePub

7. Unless a verdict is clearly and manifestly 17. In a submitted controversy, non-compli

against the evidence the Court of Appeals ance with the Code of Civil Procedure. $$ will not set it aside.--Levy v. The People, 1279-1280, is sufficient ground for the dis139.

missal of an appeal taken from the decision

therein made.- Odell v. Cromwell, 273. 9. In an action to recover an award made by

arbitrators, defendants alleged that the 18, Where an answer is stricken out as frivoaward was void, and asked that it be vacated lous, but before such order was made an and the submission revoked. Judgment

amended answer had been served, such was rendered for plaintiffs, which was

order, if erroneous, does not affect the final reversed by the General Term and a new

judgment and cannot be reviewed on appeal. trial granted, on the ground that the award The Mutual Life Ins. Co. v. Hoyt, 276. was invalid. Plaintiffs appealed therefrom, 19. No appeal lies to the General Term from and gave the usual stipulation. The order

an order of a County Court made in an acof General Term was affirmed, and judg.

tion begun in a Justice's Court.- Roberts v. ment absolute given for defendants on the Marson et al., 292. stipulation. Judgment was thereupon entered, declaring the submission and all pro- 20: An order made entirely upon grounds restceedings thereunder, void. Held, That the ing within the discretion of the court is not effect of the stipulation was, in case of

appealable to the Court of Appeals.--Mills affirmance, to give defendants such a judg

v. Hildreth, 311. ment as the facts alleged entitled them to; 21. Where the evidence preponderates so dethat the judgment must be absolute against cidedly against certain conclusions of facts the appellants upon the whole matter in con- found by the referee, as to convince the aptroversy; that the judgment was too broad;

pellate court that the referee has erred in his defendants were entitled, on the facts, to have

findings, the appellate court will reverse the award adjudged void, but the submission

the findings and judgment based thereon, should stand.-Hiscock et al. v. Harris et al., and direct a new irial - The Patent Elastic 141.

Felt Co. v. Spencer, 317. 10. The Appellate Court will not disturb the 22. An order of General Term, reversing a verdict of a jury where there was a conflict

judgment entered on the verdict of a jury of evidence upon the issues raised by the

and an order denying motion for a new trial pleadings and submitted to them.-Dilleber

on the minutes and granting a new trial, is v. The Home Life Ins Co., 180.

not appealable to trie Court of Appeals.11. It is the duty of the respondent to enter

Whitson v. David, 341. judgment of affirmance, and to prepare and 23. Upon appeal from an order denying a file a proper judgment roll in pursuance of

motion to vacate a previous order, the apthe decision of the General Term. The appellant has a right to insist upon the perform

pellate court will not listen to the objection

that the notice of motion to vacate did not ance of this duty.-Knapp v. Roche, 187.

specify the irregularities or grounds upon 12. Where the proof on the second trial of an which it was sought to vacate the original

action is the same as on the first, on an ap- order, unless it appears that such objection peal from the second trial. the last General was made in the court below.-Miller et al. Term is bound by the decision of the same v. Kent, 361. tribunal on the first devi-ion.- McKenna v. The N. Y. C. & H, R. RR. Co., 223.

24. The Court of Appeals cannot take official

notice that the laws of another state differ 13. A complaint in an action commenced in

from those of this state.- The Phænic Ins. 1875, demandled judgment for $400, with in

Co. v. Church, 376. terest from the day before the action was commenced. Judgment was rendered for 25. The Supreme Court has power to open defendant in 1877. which was affirmed on defaulis, vacate judgments, and permit pleadappeal in September, 1878. Held, That as ings to be served in furtherance of the ends the amount in controversy, with interest of justice; the exercise of this power is disto Sepiember, 1878. was less than $500, an cretionary, and will not be interfered with appeal would not lie to the Court of Appeals. by the Court of Appeals.— Vanderbilt v. - Van Gelder v. Van Gelder, 234.

Schreyer, 377. 14. The General Term may reverse a judg. 26. An order of General Term, affirming an

ment upon the facts, without reference to order discharging a defendant from arrest, is any exceptions.-Hill v. Hill, 239.

not reviewable by the Court of Appeals,

where it cannot be said from the orders that 15. An appeal to the Court of Appeals will not

they were not made on the merits.- Townslie from an order granting a new trial in a end et al. v. Nebenzahl, 398. proceeding to determine and enforce a claim against an estate.- Roe v. Boyle et al., 260.

27. The Court of Appeals cannot look into the

opinion of the General Term to find matter 16. Such a proceeding can only be tried before differing from that in the order, unless the a referee.--Id.

language of the order is ambiguous and

needs to have explained the ground on therefor been regularly made.- Berdell v.
which it was made.-Id.

Berdell, 528.
28. On probate of a will, the sole surviving 35. An appeal will not lie to the Court of Ap-

attesting witness was taken by the stenogra- peals, from an order of General Term revers-
pher as testifying that he signed the will ing a juilgment where it cannot be maintained
before the testator. An application, made that the uncontroverted facts entitled the
upon the affidavit of the subscribing witness, respondent below to an affirmance. The
to have the case reopened for the further American National Bk. v. Wheelock, 540.
examination of the witness was granted.
Held, That the matter rested in the discretion 36. An order of General Term suspending an
of the surrogate, and that no appeal from

attorney from practice is reviewable by the
his decision would lie to thu Court of Ap-

Court of Appeals

While the measure of
peal- ; that if his decision had been other-

punishment is within the discretion of the
wise, it would have been such an abuse of

court below, the adjudication of guilt or in.
discretion as to require a reversal of the

nocence upon the tacts is not so far the sub-
order.— Martinhoff v. Murtinhoff et al., 405.

ject of discretion as to be beyond review.-In

re Eldredge, 566.
29. Before an appellate court can hold that a 27. On appeal in these cases no undertaking
party hus stipulated away or waived any of

was given, and no returr filed. Held That
his rights, it must appear from the case as

no appeal was pending:- The Benedict & B.
settled that he has done co, or the statements

Mfg. Co. v. Thayer, 572.
of the trial judge to that effect must be un
disputed. Hazewell v. Coursen, 419.

See CERTIORARI; Costs 7, 9; NATIONAL BANKS,

3; PLEADING, 10; PRACTICE, 3, 11; REFER-
30. In a case on appeal from the Supreme Court

ENCE, 12, 13, 16, 19, 20; REVIVOR, 5; SUR-
to the Court of Appeals, a motion to amend

ETTSHIP, 2, 3; SURROGATES, 1.
the undertaking on appeal is properly made
in the Supreme Court.-Sullivan v. Conners,

ARBITRATION.
455.

1. On a proceeding before arbitrators plaintiff
81. Not having a printed blank form of under- insisted on calling witnesses to disprove de-

taking without a stay. appellant's attorney fendant's statements, which was refused, on
used a blank intended for use when a stay is the ground of want of power under the sub-
sought. He struck from the blank the usual mission to receive anything but the state-
recital relating to a stay, but by inadvertence ments. Held, That plaintiff, to preserve his
and mistake omitted to strike therefrom the rights, was not bound to actually pro-
operative clause. A motion on an order to duce or name his witnesses, or to state
show cause was made to amend such under. what facts he intended to prove by them;
taking, so that the liability of the sureties that his declaration that the evidence was
would be for costs instead of for i he judgment. intended to contradict defendant's statement
The motion was granted. Held. The motion was all that was necessary; that unless the
was proper and the order rightfully granted. arbitrators were correct in their construction
-Id.

of the submission, the resusal to receive the

evidence was misconduct which would
32. An order of the General Term refusing to
confirm the report of commissioners ap

vitiate the award. - Halstead v. Seaman, 639.
pointed , to determine whether a railroad 2. The submission was in the usual form, and
shall be built upon a specified route is not contained a clause that the arbitration should
reviewable in the Court of Appeals.-In re be conducted and decided on the principle of
application of the Kings Co. "Elevated RR. fair and honorable dealing between man and
Co., 474.

Hell, That this would not justify

their decision.-Id.
33. Where a party appeals from a judgment on

the ground that same is too small by reason of 3. Arbitrators are not the exclusive judges of
the allowance of an offset, the appeal being their own powers. The court is to decide
for the purpose of testing the validity of the whether they have exceeded their powers or
offset, and afterwards upon execution collects refused to exercise them.-Id.
his judgment, this does not waive his right to

See APPEAL, 9.
prosecute the appeal, inasmuch as the prose-
cution of the appeal is not inconsistent with

ARREST.
the collection of the judgment.--- Corlies v.
Ferguson, 489.

1. When judgment is obtained in an action in

which an order of arrest has been issued
34. Where it does not appear but that an order

and the defendants are charged in execution,
which was vacated was vacated for irregu-

the order of arrest is extinguished, and can-
larity, such irregularity is sufficient to sus-
tain the order of vacation on the appeal

not be revived by a reversal of the judg-
therefrom, and it would be error to review

ment.--- The People ex rel. Roberts et al. v.
the order, even though the appellant would

Bowe, 174.
have been entitled to the relief of the order 2. An order of arrest cannot be upheld where
which was vacated had the application two or more causes of action are united, any

man.

[ocr errors]

not

one of which does not present a proper case the guilt of the principal. - Levy V. The

for an arrest.-Easton et al. v. Cassidy, 190. People, 139. 8. If the arrest is for fraud, the same must be 2. Evidence that the prisoner conferred with

distinctly alleged in the complaint, so as to the principal after the fire is admissible. present a definite issue for the jury.-ld.

-Id. 4. An order of arrest under subdivision 4, of 3. An indictment for being accessory to arson

sec. 550 of the Code of Civil Procedure, which in the first degree charged that the building in terms directs the sheriff to hold the de- burned was the dwelling-house of one K. It fendant to bail by requiring a bond to the appeared that the building was occupied by effect that defendant will obey the direction several persons, one of whom was K. ; that of the court, &c., following the requirements it contained many rooms, with one outlet to prescribed by sub. 1 of sec. 575, is not on the street; that the fire broke out in the that account irregular. It is quite proper to night, aud burned only the realty in the prifurnish the officer with this specific guid- soner's rooms. Held, tbat a conviction of ance.Boucicault v. Boucicault, 247.

arson in the first degree was proper.— Id. 5. The defendanı's right to the jail liberties,

ASSESSMENTS. under sec 149, is not in the least affected by the direction aforesaid. He could give such 1. Personal notice to property owners of a prolimit bond, whether he gave the bail bond or

posed assessment is not necessary.-In re penot.-Id.

tition of De Peyster, 171. 6. An order of arrest, in an action for absolute 2. In a proceeding to vacate an assessinent on divorce, is properly granted under sub. 4 of

the ground that it was for a repavement, it sec. 650 of ihe Code, where the affidavit on appeared that it was laid tor paving the roadwhich came is based shows that detendant is way only, and that the sidewalks and gutters about to depart from the state with no pres

had been paved, but the roadway had never ent intention of returning, exiept, possibly,

been paved. Held, That this improvement to pass through it, and that he is to sail for

& repavement.-In re petition of Europe within a month, to be gone inde- Grube, 197. finitely. - Id.

3. The City of New York has power to deter7. An order of arrest having been granted in nine to grade a street, or do a public work

an action for conversion, it appeared, on mo- of that kind at its own expense, and after it tion to vacate, that plaintiff had acceptet is done to assess the expense and collect it from appellant's wife a confession of judg. the same as in the case of an estimate and asment for the value of the goo is, which de- sessi-nt before he work is begun, and the clar'd that the goods had been sold and deli- board of revision has jurisdiction to confirm vered to her; and it also appeared that plain.

such an estimale and assessment.-In re petiff had issued execution thereon, and col- tition of Roberts, 227. lected a portion of the judgment. Held, 4. Where a d-lay of seven years after confirmaThat the order should be vacaled; that plain

tion thereof, in moving to vacate an assesstiff, by his acts, must be deemed to have made his election to treat the goods as the

ment laid upon property in the city of New

York, is accompanied by circumstances property of defendant under a sale by himself.--Field v. Bland, 284.

showing a change in the relative positions of

the persons affected, which change, wrought 8. Under the Old Code, the exoneration of bail by the lapse of time, places the parties inafter twenty days was a matter of discretion. juriously affected in a worse position than - Mills v. Hildreth, 311.

they would have been if the application bad

been seasonably made for the vacation of the 9. Where the facts on which an order of arrest

assessment, such delay, under the circumis granted are not extrinsic to the cause of ac

stances, constitutes such luches that tho tion, but the nature of the action alone war

court should refuse to vacate the assessrants the granting of such order, the order

ment.— In re petition of Lord, 299. should not be vacated on evidence tending to disprove the cause of action, as the merits 8. When a party purchases land from seven to of the controversy should be allowed to wait ten years after the lien of an assessment sale

the trial thereof.- Peck v. Lombard, 456. attached, he will not be allowed to attack 10. In an action brought to recover a penalty an

the validity of such assessment or sale, with

out showing to the court that be was not in order of arrest may be granted on an affi. davit simply showing the existence of such

any way inuemnified by his vendors against

such liens.-In re petition of Saunders, sufficient cause of action.-ld.

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

6. The fact that one of the commissioners appointARSON.

ed under ch. 670, Laws of 1871, was not a free

holder, as required by the statute, does not 1. On the trial of one accused of being accessory constitute a jurisdictional defect on the face

to the crime of arson, it is not erroneous to of the proceedings. The court, by his apallow facts to be shown which tend to show pointment, adjudged him a freeholder, and

that was final until corrected by a direct pro-

ASSIGNEES.
ceeding for that purpose.- Dederer v. Voorhis
et al., 407.

See AssIGNMENT FOR CREDITORS, 3; BANK-

RUPTCY, 2, 3.
7. The complaint alleged that the commissioners

first appointed performed their duties and ASSIGNMENTS FOR CREDITORS.
made their report, but failed to act on the
awards made, and fraudulently suppressed 1. A creditor named as such in the schedules of
said report, and procured other persons to be the assignment is not entitled to a distribu-
appointed, and that the record did not show tive sbare of the trust funds without making
these facts, but falsely and fraudulently shows presentation or proof of his claim.- In re
that the proceedings of the commissioners accounting of Builey, 87.
last appointed were regular. On demurrer,
Held, that these allegations make out a cause 2. If any person has a claim against the trust
of action; that chap. 395, Laws of 1874, con-

fund, he shwuld present and prove the same.
firming the assessment, does not apply to or

Creditors who have fulfilled these require-
cover frauds, and cannot cure defects of that

ments are the only ones entitled to share in
character.-Id.

the distribution of the fund.- Id.
8. A sale of real estate in New York City for as- 3. Where an assignee for the benefit of creditors
sessments is invalid where interest is added

receives assets, the subsequent discharge in
to the assessments from tbe dates of confirma bankruptcy of the assignor does not bar or
tion thereof, instead of from the dates that

affect ihe relations of the assignee to the
the assessments were subsequently entered

creditors of the assignor.-Smith v. Tighe et
in a record of the “titles of assessments"

al., 297.
with date of confirmation, &c., to be kept in 4. Where an assignment for creditors contains
the street commissioners' office, as provided

no provision giving any preference to taxes,
by section 6, of chapter 579, of Laws of
1853, for the reason that an unauthorized

or directing their payment at all, except as

embraced in the general and unpreferred
amount of interest is included in the assess-

debts, the court cannot direct the assignee to
ments.—In re petition of Austin, 488.

pay the taxes in arrear.-In re assignment of
9. No assessment is due or a lien until such entry

Lewis, 368.
is made, and interest can be added only from

ATTACHMENT.
the date of such entry; but a person acquir-
ing title to such land after such sale for as 1. An affidavit on which an attachment is
sessments is presumptively not a party ag- granted, on the ground that the defendant
grieved so as to permit such sale to be had assigned and disposed of his property,
vacated on his behalf.-Id.

&c., with iutent to defraud his creditors, is

insufficient which alleges such fraudulent
See CLOUD ON TITLE, 2; Joint STOCK Com-

disposition, &c., upon information received

from a person named, and states no reason
ASSIGNMENT.

for not procuring the affidavit of the inform-

ant.-- Woodhouse v. Todd, 28.
1. The assignment of a judgment to the at-2. A party procuring an attachment is required

torneys was made in part to secure promis- to make out a clear prima facie case.-Id.
sory notes previously given by the clients and
partly in payment of professional services. 3. A sheriff, who, by virtue of an attachment,
They knew all the facts of the case at the seizes property pursuant to $ 644 of the
time, and did not take it under a prior Code, and also takes possession of the books
agreement. Held, That it was taken subject pertaining to the business, as directed by
to all equities between the client and the said section, has no right to submit said
judgment creditors.-Davidson et al., v. Al- books to the examination of the plaintiff in
faro et al., 56.

said attachment action, nor to experts acting

in the behalf of said plaintiff, nor to examine
2. When for a valuable consideration from the them bimself, except for the pure purpose of

payee an order is drawn on a third party, his trust, and only as is necessary to execute
and made payable out of a particular fund the process. ---Garden et al. v. Sabey, 33.
then due or to become due from him to the
drawer, the delivery of the order to the 4. Plaintiffs procured an attachment against
payee operates as an assignment pro tanto of

defendants as non-residents, but failed to
the fund, and the drawee is bound, after

commence publication of the summons with-
notice thereof, to apply the fund as it accrues

in thirty days, one of the defendants having
to the payment of the draft, and to no other requested them to suspend proceedings.
purpose, and the payee may, by action, com-

Held, the attachment fell by reason of the
pel such application.-Brill et al v. Tuttle,

omission to publish the summons in time;
468.

that the request to suspend proceedings did

not estop defendants from setting up a want
See Contract, 10; EVIDENCE, 25; LIFE INSUR- of publication or service.—Mojarietta et al. v.
ANCE, 1, 2; MORTGAGE, 20.

Saenz et al., 61.

PANIES.

[ocr errors]
[ocr errors]

8. Plaintiffs obtained a second attachment, tachment is instigated by the defendant for

which was granted on the same summons, the benefit of a third person.-Id. complaint and affidavit as the first, but upon 14. A mere levy under an execution is not such a new undertaking. Held, That it was valid, and that plaintiffs had thirty days from its

an application of the property as to bar the date to commence publication, and that it

right of subsequent lienors to move to vacate was proper to use the same affidavits on the

an attachment, under $ 682 of the Code.

Woodmansee et al v. application for the second attachment.-Id.

Rogers, 484.

See EXECUTION, 3–5; NATIONAL BANKS, 5; 6. An attachment is bad ab initio which is

SURETYSHIP, 10. based upon an affidavit which fails to comply with section 636 of the Code in omitting to

ATTORNEYS. state that plaintiff is entitled to recover the sum specified over and above all counter- 1. An attorney has a lien upon his client's claims known to him."-Donnell et al. v. Wil- cause of action, and upon the judgment reliams et al., 130.

covered thereon, to the extent of the compen

sation agreed upon, and no notice thereof is 7. The plaintiff procured an attachment against two non-resident defendants, copartners, one

required.—Lewis v. Day, 49. of whom was not personally served with pro- 2. Attorneys have a general lien upon papers cess, por was publication commenced as of clients in their possession, and upon funds against him within the 30 days after the recovered by them, for the balance of their warrant was issued, as required by statute. professional accounts. --Schwartz et al. v. JenHeld, As to him, the effect of the non-publica

ney et al., 67. tion was to destroy the attachment. This 3. Where a promissory note, which was the left the attachment against the individual in

subject of the action, was transferred by terest of the other partner in the firm assets,

plaintiff before judgment, in consideration of but as it appeared the firm was insolvent, that interest amounted to nothing.--Id.

a pre-existing debt, Held, That the transfer

did not affect the lien of plaintiffs' attorneys 8. Liquidators of a corporation appointed upon the moneys recovered, and that this

under a decree made in another state under lien was for attorneys' general account, and an insolvent law of such other state do not was not to be limited to the services and take precedence over an attaching creditor disbursements in the particular suit.—Id. here, even though such attaching creditor is 4. The fact that plaintiffs' attorney drew the a resident of the state where such liquidators

instrument of transfer for the note is immawere appointed.— The Hibernin Natl. Bk. v.

terial.-1d. Lacombe et al., 168.

5. The lien of a defendant's attorney under sec. 9. An affidavit is insufficient to support an at

66, Code Civil Pro. depends upon the defendtachment upon the ground of an intended

ant setting up a counterclaim.-Brewi et al. fraudulent disposition of the property, &c., which fails to connect the person who made

v. Pfeiffer, 203. the statements upon which the charge of 6. A counterclaim to be recognized must be fraud is predicated with the defendants, and plead as such.-Id. which fails to show that such person making 7. An order of discontinuance, entered upon the statements was authorized to speak for defendant. The statements are mere hearsay.

plaintiff's consent and stipulation, after notice

by his attorney to the defendant that the at-Evans v. Warner, 193.

torney had a lien upon the cause of action 10. A threat by a debtor to make a preferen- for costs and disbursements, and that he

tial assignment, unless the creditor will ac- would disregard any settlement of the suit cept a compromise of his claim, is, of itself, without his consent, should be set aside so insufficient to support an attachment. Such far as it affects said lien.—Pickard v. Yencer, threat is not evidence of an intent to make 271. a fraudulent assignment, por, consequently, 8. But the attorney has no right, upon the sot to cheat and defraud.-Id.

ting aside of said stipulation and discontinu. 11. The failure to serve summons or commence ance, to enter judgment for costs and dis

service by publication within thirty days bursements. His remedy is to prosecute the after the attachment issues, invalidates the action, in the name of his client, to trial and attachment. Such failure is not an irregu- final judgment.-Id. larity but a jurisdictional omission which 9. Attorneys are not personally liable for steworks the destruction of the warrant.-—Blos

nographers' fees unless there is a special oblisom v. Estes, 428.

gation to that effect; in the absence of such 12. A sabsequent appearance simply gives the obligation the client is alone responsible.

court jurisdiction over the person of the Bonynge v. Field et al., 280. defendant, but cannot revive the attachment. 10. Evidence that defendants had paid similar -Id.

bills on other occasions is inadmissibile, as 13. It is immaterial that the vacation of the at- such facts would not show what the contract

« ForrigeFortsett »