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fendant ought to be regarded as an admission at a high valuation, with a fraudulent intent
of its corporate existence. After such gen- of evading the provisions of the statute.-Id.
eral appearance it ought not to be heard to see ATTACHMENT, 8; Chattel MORTGAGE, 1;
insist that plaintiff must affirmatively prove
that it is what it has put itself on record as

CONSTRUCTION OF STATUTES, 2; CONVERSION,
being. At least evidence of user or corpo-

2; LEASE, 10; PATENT; REFERENCE, 8, 10;
rate acts by defendant is all that is necessary

TAXATION, 4-6.
for plaintiff to show to establish the corpo.

COSTS.
rate entity of such defendant. A corpora- 1. Where a party brings an action, by the
tion plaintiff is, at common law, under the
general issue, obliged to prove its corporate

nature of which he can have execution against
existence as a part of its case; but, under

the person, and the amount of the recovery is
our statute, a domestic corporation plaintiff

not sufficient to carry costs. Held, That the
is only obliged to show its corporate exist-

defendant could imprison the plaintiff for the
ence where the defendant pleads specially

excess of costs above the verdict.-Philbrook
"nul liel corporation.” With respect to a

v. Kellogg, 131.
foreign corporation, the rule in this state is 2. Where an amendment is applied for by the
as at common law.—Derrenbacher v. The plaintiff, when a new trial has been ordered
Lehigh Valley RR. Co., 347.

after an appeal to the Court of Appeals, and
23. In an action by the creditor of a corporation

the defendant interposes a new defense which
against stockholders thereof, it is not neces-

if proven will defeat the action, the defend-

ant should be allowed the costs of the Court
sary to make all the stockholders of the

of Appeals only, the other costs to abide the
company defendants.-Hatch et al. v. Dana,

event of the action.-Tooker v. Arnoux, 132.
425.
24. A court of equity may enforce payment of 3. In an action of account in a county court,
stock subscriptions, though no calls therefor

where the recovery is for a sum less than
have been made by the company.-Id.

fifty dollars, it is incumbent on the plaintiff

to show that a justice's court had not juris.
25. The directors of a company have not the diction of the action, or the defendant's costs

power to so dispose of the property of a cor- will be taxed against him.— Tompkins v.
poration, voluntarily, as to work its political Greene, 207.
death.- The Sheldon H. B. Co. y. The Enck-

4. It is the sum of the accounts proved which
meyer H. B. Co., 438.

determines the question of the jurisdiction of
26. Where, however, a judgment is obtained the justice's court.-Id.

against the company, and the directors of the
company, failing to negotiate a settlement, find 5. In determining the question of the jurisdic-

tion of the justice's court recourse may be
it necessary, in satisfaction of the judgment,
to dispose of so much of the property as to

had to the proof of the amount of the ac-
render the company incapable of carrying on

counts given in the county court.-Id.
its business, such a sale is not ultra vires.-6. When a cause, the trial of which has been
Id.

commenced, was adjourned at defendant's
27. The trustees of a corporation under the act

request, on payment of costs, and a subse-
of 1848 cannot be increased by a vote of the

quent inquest is opened on terms, the court

should not allow plaintiff more than two
trustees, without a compliance with the law

trial fees, two jury fees—costs of the motion
requiring the making, signing and filing the
certificate required by chapter 269, sec. 2, of

to open default and disbursements of the

action. Jones et al. Tienken, 219.
the Laws of 1860, as amended by Laws of
1867, chap. 248, sec. 2.-Id.

7. The General Term is not disposed to review
28. In an action against stockholders, to recover

the action of the court below in the matter
debts of a corporation incorporated under

of granting an additional allowance, except

where there is an abuse of discretion or a
the act to authorize the formation of corpora-
tions for the erection of buildings, passed

plain departure from established rules.-

Lexow v. Julien, 300.
April 5, 1853, as amended in 1870, an
issue was raised as to whether or not the 8. An order requiring a pleading to be filed with
stock of defendants was full paid stock, the county clerk, after notice, as provided
issued in payment for the purchase of land by sec. 824 of the Code of Civil Procedure, is
taken at its fair value, or whether the land an ex parte order, and motion costs should
had been taken at a most exorbitant estimate not be allowed in an ex parte order.— Edleson
for a fraudulent purpose. Held, That evidence v. Duryee, 364.
on behalf of defendants, tending to show a
bona fide offer for certain portions of such 9. On the first trial defendant succeeded at
land, which offer was not accepted, is com-

Special and General Term, but the Court
petent evidence upon such issue.-Thurber

of Appeals granted a new trial with costs

to abide the event. On the second trial
et al. v. Thompson et al., 459.

plaintiff succeeded and taxed all costs in.
29. The real question, in a case of this character, curred, including those on appeal to General

is whether the property was placed and taken Term. On motion to strike out the latter,

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Held, that they were properly taxed by plain- no violation of his duty.— Odell v. Cromwell, tiff.—Donovan v. Vandemark, 443.

273. 10. Where defendants sever in their defense all

COVENANT. who succeed are entitled to separate bills of costs, unless the severance be in bad faith

See DEED, 1; GUARANTY, 1. and to increase costs.- Williams y, Cassa

CREDITORS' BILL. day et al., 494,

1. A creditor cannot maintain an action to set 11. When a person prosecutes in the name of the

aside a conveyance as fraudulent until he has overseer of poor, without having complied obtained a judgment, even though the debtor with the statute, the action is unauthorized is insolvent.-Adee v. Bigler, 312. and the person instituting it is chargeable with the costs thereof. Ås to whether one 2. Although individuals having separate judywho, after complying with the statute, brings

ments against the debtor may join as plainan action, but is defeated, is absolutely liable

tiffs in a creditor's suit, they must show a for costs, quære.-Jobbitt v. Giles, 523. right in common to the relief demanded; they

must all have judgments against the party See CONTEMPT, 3; County COURT, 1, 2; GUARD- defendant charged with the fraud, and the

IAN, 3 ; JUDGMENT, 2 ; LOTTERIES, 2 ; SURETY. fraud must be such as affects them all.-TaSHIP, 1, 4, 5; TRESPASS, 2.

bor et al. v. Bunnell et al., 551. COUNTERCLAIM.

3. A complaint in a creditor's action alleged that See CONVERSION, 5; DEED, 5; EVIDENCE, 18 ;

a conveyance from A and B to C; one from PLEADING, 18–20; Usury, 9.

A to C; a land contract between A and D

and a chattel mortgage from A to C were COUNTY COURT.

fraudulent and void, having been made to 1. Costs of appeal from justice's courts are reg.

hinder, delay and defraud creditors of A and ulated by $ 371 of the Code of Procedure,

B; that plaintiffs were judgment creditors, whether there is to be a new trial in the

the one having a judgment against A and B,

and the other against A alone. Held, DeCounty Court or not. Chapin v. Skeels et al.,

fective, as different and independent causes 79.

of action were improperly united.—Id. 2. And § 371 controls in all cases, except 4. It is essential that the complaint in a creditor's where the right to costs given by that sec

action should contain an averment that exetion is qualified or varied in cases in which

cution has been issued to the proper county, offers of judgment are made, pursuant to s

and returned unsatisfied.-Id. 368, or in which such offers are made pur

suant to other special enactment.— Id. See FRAUD, 10. 3. It is not necessary that the motion for a new

CRIMINAL LAW. trial be made in the county court before judgment entered on the decision of the 1. The acts and declarations of confederates are county court in case trial without a jury can

admissible if there is evidence sufficient to be reviewed by appeal to the General Term. show prima facie a combination to commit -Cook v. Darrow, 522.

the offense. - Furrell v. The People, 318. See APPEAL, 7, 19; Costs, 3; REFERENCE, 20, 2. The concurrence of a majority of the Court 21.

of Special Sessions in the conviction of a COUNTY TREASURERS.

prisoner is sufficient.The People v. Sam

mons, 382. 1. Plaintiff was county treasurer of Westchester

County in 1872, and as such applied for and 3. An accomplice of the prisoner had made a received letters of administration of an es

statement of the crime, which was delivered tate of which the county was a creditor, and

to the district attorney. The prisoner's as such administrator assigned a mortgʻge

counsel called for it for the purpose of imbelonging to said estate, and deposited the peaching such accomplice. Held, not proper principal and interest of said mortgage in

evidence on the issues involved.—Stape v. the bank in 1875, to the credit of himself as The People, 423. county treasurer, In 1879 the bank, being about to close its affairs, gave notice to the 4. A witness, on cross-examination, cannot be present county treasurer to withdraw said

examined as to matters upon which he was deposit, which was done. Plaintiff demand

not examined in chief.-Id. ed said sum of defendant as public adminis. 5. In the absence of a claim of privilege it is trator, and also as administrator of said in

proper to ask a witness as to his innocence testate. Held, It appears that the County of

or guilt of the crime of desertion.-Id. Westchester was a creditor of the intestate, and it is a reasonable inference that the 6. In an indictment against a husband and plaintiff turned over the fund in controversy wife, the wife is not protected by the fact of to the county in payment of the debt of the her marriage where she is shown to have intestate. Such an act of the plaintiff was taken an active and willing part in the comid.

mission of the crime.-Goldstein et al. v. The for deceit, nor is a promise to do a certain People, 506.

thing as an inducement to such settlement.

Lerow v. Julien, 300. 7. When a husband is guilty of an offense, and the wife also, and no coercion is shown to

DEDICATION. exist, they may be jointly indicted and convicted.-Id.

See EMINENT DOMAIN, 3. 8. The possession of stolen goods by the pris

DEED. oner immediately after the larceny, under peculiar and suspicious circumstances, if not 1. Where a grantor conveys by a deed consatisfactorily explained, will warrant the

taining a general covenant for quiet enjoyjury in convicting him of receiving stolen

ment, every appurtenant to the premises is goods, knowing them to have been stolen.

protected by the same, and the grantor is

liable on his covenant if the grantee be disSee Arson; BURGLARY; EVIDENCE, 4; False

turbed in the enjoyment thereof. It is not PRETENCES; FORGERY; INDICTMENT; MUR

necessary that the appurtenant should be de

scribed in the deed. — Green v. Collins, 89. DER; OYSTERS, 2; PERJURY.

2. The act passed March 2, 1857, entitled "An DAMAGES,

Act relative to sheriff's certificates upon the

sale of real estate," makes the record or a 1. Damages may be recovered in an equitable

certified copy of such certificate evidence of action, although plaintiff fails to establish

its contents when sáme has been filed and rehis right to the equitable relief demanded. —

corded with the county clerk or register as Matthews et al. v. The D. & H. C. Co., 76.

required by said act. The necessity of proof 2. Plaintiffs' testator conveyed to the A. & S.

and acknowledgment, as required by 2 R. S., RR. Co. a portion of his farm, excepting a

370, sec. 44, to make same evidence of its spring on said portion, the use thereof, ac

contents is done away with.--Clute v. Emmecess thereto and right to repair, without any

rich, 128. damage to said spring in consequence of the 3. A sheriff's deed, based upon a previous sale construction of said road. In putting down of real estate under execution, reciting the an additional track, defendants endeavored formal steps with respect to the sale, namely, to protect the spring by building a stone posting the notices, &c., is presumptive evicovering and leading the water through a dence that the sheriff performed his duty in lead pipe instead of a wooden one, and there- posting the notices of sale required by law. by interfered with the use of the water for a -Id. few days. In an action to restrain such interference an injunction was issued. On the 4. Where, through a mutual mistake, the quantrial no evidence as to the expense of restor

ity of land conveyed is misstated in the ing the spring was offered. Held, That plain

deed, and belief in the correctness of the tiffs could only recover such sum as would

amount as stated formed the basis of negotiahave compensated testator for the depriva

tion and agreement of the parties, the vendee tion of the use of the water during the few

is not foreclosed by acceptance of the deed days of interruption.-Id.

from obtaining relief by recovering back so

much of the price as was computed and paid 8. Unless a contract was made with reference to by mistake. Paine v. Upton et al., 323.

special circumstances affecting the damages, 5. A deed stated that the premises were cononly such damages are recoverable for breach

veyed subject to a certain assessment. On foreof the contract as are proximate and certain, closure of a purchase money mortgage, deand such as are the usual and natural conse

fendant alleged that this clause was objected quences of such breach, and may have rea- to at the time and was suffered to remain sonably been supposed to have been within

only on the vendor's declaration that the the contemplation of the parties.Corlies v. lien of the assessment was only apparent, Ferguson, 489.

and that he was afterwards obliged to pay it See CONTRACT, 3, 24; CONVERSION, 4; EMINENT

to redeem the premises from a sale. It apDOMAIN, 2 ; INJUNCTION, 2 ; LIBEL, 2, 3; Party

peared that it was not the intention of the WALLS, 3; SLANDER, 2.

vendee to take the land subject to the assesment, and that it was contrary to any avowed

intention of the vendor's that it should be DECEIT.

thus taken. Held, That the defendant was 1. If A. be indebted to B. in a sum of money

entitled to have the deed reformed and to for which an action is pending, the assertion

counterclaim the amount so paid.- Waring of A. that the debt is a lien upon any specific

v. Somborn, 462. property or thing made as an inducement to 6. After discovering the validity of the assessthe settlement, is not in itself such a repre- ment, there was a mutual agreement to exsentation of an existing fact as the law re- tend the mortgage. Subsequently it was quires as a sufficient ground for an action assigned to plaintiff

. It did not appear that he was induced to purchase by such exten- contempt, is not proper and will be resion or in reliance thereon. Held, That de- versed.—Gane v Gane, 244. fendant's conduct not having induced plaintiff 2. Although a decree of divorce has been obto purchase, he was not estopped from going into the matter of the assessment.--Id.

tained by collusion and fraud, a person subse

quently marrying one of the divorced parties See MORTGAGE, 14; SPECIFIC PERFORMANCE, 2,

cannot avail himself of such a fraud to obtain 3; TAXATION, 13.

a judgment of nullity.-Ruger v. Heckel, 299.

3. While it is not within the power of the DEMURRER.

court, in a suit for absolute divorce, to allow See PLEADINGS, 2, 15, 16.

a third party with whom acts of adultery are

charged to have been committed iu the comDEPOSITIONS.

plaint to come in and defend as a party to the

suit, yet the court may, and will, in a proper 1. Where the affidavit upon which an order for case, allow such third person to attend upon the examination of defendant as a party be

the examination of the witnesses and crossfore trial is based shows that the plaintiff examine the witnesses upon the reference to has no cause for action against the defendant take proof of facts, and direct that such third sought to be examined, such order will be person be called as a witness, and that such vacated. — Wertheim et al. v. Page et al., 26.

witnesses as she may name be summoned and 2. Where witnesses reside in New Jersey, but

examined.-Clay v. Clay, 362. have a place of business in New York City, 4. In an action for divorce, in the absence of dithey cannot be examined as witnesses before rect proof, the court must be satisfied that a trial in an action in that city, without show- criminal attachment subsisted between deing that they are about to depart from the fendant and the alleged paramour, and that state, or that they were sick or infirm.- opportunities occurred when the intercourse Barker v. Wilder, 252.

in which they intended to indulge might 3. On the return of the order for examination,

with ordinary facility have taken place. where the parties are before the court, a

Conger v. Conger, 569. motion may be made to discharge it on affi. 5. In the absence of criminating circumstances, davits, without giving previous notice or mere association or intercourse between a serving copies of such affidavits.-Id.

man and woman cannot be attributed to an See BROKERS, 3.

improper purpose.-Id.

6. To justify a decree of divorce such proximate DISCONTINUANCE.

circumstances must be proved as by former 1. The court in the exercise of its discretion

decisions, or in their own nature and tenwill not allow plaintiff to discontinue his

dency, satisfy the court that the criminal action against the objection of defendant,

act has been committed.--Id. who has by his answer set up a valid counter. See Arrest, 6; CONTEMPT, 5, 8. claim.-Swathmey v. Cheatham, 220.

DOWER. See ATTORNEYS, 7.

1. L., a married woman, died seized of a house DISCOVERY.

and lot, leaving a husband and three child1. The petition on which was granted an order

ren surviving. All the children have since directing a discovery of entries in certain

died intestate. Held, That the husband books of defendant, à bank, and permitting

was entitled to an estate by curtesy in said plaintiffs to inspect and take copies of the property, and to enjoy the use of such land same, showed that plaintiffs had no knowl.

during his life, and that the widow of one of edge of any particular entries which they

the children was not entitled to dower there. needed to see in order to frame their com

in.-In re Leach v. Leach, 402. plaint; it also stated generally that plaintiffs

DRUNKARDS. desired information in regard to losses said to have been suffered by the defendant, the 1. A drunkard is not incompetent like an idiot amount thereof, the causes and the action of or one generally insane. He is simply inthe directors in regard to the same, and to competent upon proof that at the time of the the general management of the bank. Held, act his understanding was clouded or his That the order should not have been granted reason dethroned by actual intoxication.and was manifestly oppressive.-Brownell et Van Wyck v. Brasher et al., 256. al. v. The National Bank, 17.

DURESS.
DIVORCE.

1. The action was to set aside a chattel mort1. Where alimony is directed to be paid by a gage, given by a debtor's wife, on the ground

final judgment, an order that the defendant of duress. The duress consisted, in part, of give security for the future payment of the threats by defendant to have debtor arrested same, and, in default thereof, that an attach- for fraud, and these resulted in the wife's givment issue punishing the defendant as for a ing the mortgage. Held, That defendant was

entitled to prove on the trial of this action 4. It is not sufficient that the judgment be enfacts tending to show that the debtor had tered in the Book of Judgments; unless enbeen guilty of fraud, and that defendant had tered in the Docket of Judgments it is not a right to have him arrested, as threatened. - docketed, as that word is used in the staBurnham v. Douglas, 657.

tutes.-Id. See PRACTICE, 4.

ELECTIONS.
EASEMENT.

1. The certificate of the county canvassers to 1. Where the defendant, who had a right by

the election of a party gives presumptive

title to the office, and an absolute title until deed to convey water across plaintiff's land by an open race, constructed in its stead a

the title is destroyed by evidence showing closed race at his own expense, and without

that it does not certify the true result of the consulting plaintiff, whereby the latter was

election.— The People ex rel. Zeiser v. Kessel,

209. damaged, Held, That defendant was bound to keep the closed race in repair, and was

EMINENT DOMAIN. liable in damages for a failure, and this notwithstanding the fact that the deed provided 1. While the Legislature has the right to supthat each party was to build half of the open plant one public use by another, still the race. --Fritcher v. Anthony, 25.

delegation of such a power must be made in 2. The general rule of servitudes is that there

express terms or by necessary implication. is no obligation upon the owner of the ser

Such a right cannot be implied from a gen. vient property to do any act, but only to al

eral power to appropriate or to use land low another to do or refrain from doing some

generally.- The N. Y. City & N. RR. Co. act himself.-ld.

v. The Central Union Tel. Co., 237. 3. Where a grant of lands is made “ with the 2. In proceedings to take lands for railway purright to the use of the carriage or alley-way

poses, under the statute, it is the detriment situate between the premises hereby con

to the owner for wbich he is to be compen

sated. When that is ascertained, he is not veyed and the building east thereof, owned by the grantor, for ingress and egress upon

to be paid more because the land is peculiarthe rear of said premises hereby conveyed,”

ly adapted to the use of a railroad.-In re

The Boston, H. 7. & W.RR. Co. v. The T. & it is not implied that such right of way ex

B. RR. Co., 627. tends to the rear of such two lots; but on the contrary, in strictness, it extends back only 3. One H. being the owner of lands above Ono to the rear of the building on the easterly lot; Hundred and Fifty-fifth street, in 1854 and yet, to accomplish the purpose intended, it 1855, executed mortgages and conveyanmust be held to extend back to the first point ces of portions thereof, describing them at which, at the time of the grant, the gran- as bounded by streets and avenues tee could by means of it obtain convenient they would have run if they had been egress and ingress upon the premises so included in the commissioner's map of 1807. granted to him, but no further. - Spencer v. Held, That the conveyances, although not Weaver, 146.

amounting to a dedication to the public of

the lands embraced in the supposed streets, See DAMAGES, 2; EminenT DOMAIN, 3-5.

created an easement in the grantees of the EJECTMENT.

abutting lots entitling them to have such

streets and avenues left open, and that the 1. By virtue of a judgment in ejectment in his award for such lands when taken for such

favor, and without any writ of possession, a streets and avenues was properly divided plaintiff may take possession of the premises between the owner of the land and the described in the judgment, if he can do so owners of the abutting lots.-In re opening peaceably.-- The People ex rel. Scudder v. Eleventh Avenue, 534. Cooper, 77.

4. In the first report of the commissioners a 2. Where a sheriff had taken possession of the merely nominal compensation for such lands

premises, not only under a writ issued to him, was awarded on the ground that they had but also as agent for the plaintiff, and a stay been dedicated to public use. The court was served upon him, it was held that his sent the report back to be corrected by only duty was to cease removing the per- awarding just compensation for such lands. sonal property: That it was proper for him Held, That this decision was no bar to a claim to lock up the house and retain possession by by an abutting owner that an easement had his deputy, and that he rightly refused to been created by the owner of the fee.— Id. allow the defendant to re-enter. - Id.

5. The order of confirmation of the amended 3. A judgment in ejectment by default is not report whereby substantial damages were

conclusive against persons claiming under the awarded to the owners of the land taken defendant therein unless it has been docketed did not determine that the entire sum was for three years in the office of the clerk of payable to the owner of the fee without the court in which it was rendered.-Sheri- regard to any easement owned by others, dan v. Linden, 258.

-Id.

as

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