the facts, refused to take any action. The court gave judgment in favor of plaintiffs for the value of the use and occupation $750, subject to a mortgage, and directed a conveyance of the premises to a receiver appointed to sell them for the payment of plaintiffs' costs, and the $750 and interest. R. A. Stanton, for applts. Ward Hunt, Jr., for respts. Held, No error; that if such reservation was effectual to vest in R. a legal interest in the premises, to that extent his judgment creditors can reach it; if the grantor simply obtained a lease for three years, and that is void by the statute of frauds, then, since the consideration for it was wholly paid as between R. and his grantee, equity, in order to prevent irreparable loss, will decree performance of it, and thus R. has an equitable interest of the same value which his creditors can also reach. In either case, fraud on the part of the grantee, or notice of any fraudulent intent on the part of the grantor, is not essential, since the proceeding touches only the property, legal or equitable, which the grantor retains. Fraud on the part of the grantor exists. A conveyance by one indebted at the time, by which the grantor secures some benefit to himself at the expense of his creditors, is fraudulent upon the part of the grantor as to his creditors. 66 N. Y., 382. In this case the purchaser is protected to the extent of his actual purchase. His grantor only is deprived of that which he reserved or intended to reserve out of the property for his own benefit. Also held, That the declarations of a of a defendant are competent against himself, and the court was not asked to receive them against the others. It was competent for plaintiff to rebut the testimony of defendants, although introduced. as witnesses by himself. Code Civ. Pro., 838. An effective way to do this was by proving the untruth of such testimony. As against either defendant his declarations out of court were competent for that purpose. That such evidence may incidentally tend to impeach the party called as a witness, does not impair its value as evidence upon the question at issue. It was claimed that this action could not be maintained by the judgment creditors, but should be brought by the assignee; or if, by virtue of his refusal to bring the action, it may properly be brought by the judgment creditors on making him a party, the recovery when had must be for the creditors generally and in aid of the assignment. Held, Untenable. The right to maintain this action residing either in the assignee or the judgment creditor, the default of the assignee when made a party leaves the judgment creditor's right uncontested, and since, but for the assignment, the judgment creditor's right by virtue of his vigilance to apply the property of the debtor to the payment of his own judgment, to the exclusion of the credit ors generally, would be complete, the same default leaves that right uncontested. A. F. is a creditor of the judgment debtor. Having made his election to resist discovery of assets, he cannot now change sides and share in the distribution. If this action had been brought in behalf of creditors generally, no doubt the assets discovered could be administered by the assignee. 4 Johns., 586; 11 N. Y., 237. But our courts have not felt it to be a duty to assert the rights of the assignee when he himself has abandoned them, 51 N. Y., 552; or to look beyond the record for other creditors among whom to dissipate the proceeds of plaintiff's vigilance. 72 N. Y., 70. Judgment affirmed, with costs. Opinion by Landon, J.; Learn ed, P. J., and Boardman, J., con cur. HUSBAND AND WIFE. N. Y. SUPREME COURT. GENERAL Stephen Tunstall, respt., v. Walter W. Winton, applt. Decided May 27, 1882. A husband who, in contemplation of deserting his wife, disposes of his property with the intention of defrauding persons who might thereafter furnish her with necessaries may be held upon order of arrest under $550 of the Code. An implied contract is created against a husband who has deserted his wife to pay per sons for necessaries furnished to her. Appeal from an order denying motion to vacate an order of ar rest. The motion to discharge the order of arrest was made on the plaintiff's papers. Defendant deserted his wife in Pennsylvania and went away with another woman. Subsequently he procured a divorce from his wife in Wisconsin on the ground that she had deserted him. The complaint herein alleges that the decree of divorce was obtained fraudulently by false allegations and subornation of perjury, and that no process was served upon his wife, and that no court had jurisdiction to grant the divorce. The plaintiff is the father of defendant's wife and a non-resident, and brought this action to recover a sum of money expended for the support and maintenance of his daughter since the desertion of her husband. Defendant disposed of his property in such a way as to put it beyond the reach of persons who might furnish necessaries to his wife. B. F. Sawyer, for applt. Held, That defendant, having moved upon the plaintiff's papers, must be regarded as admitting the truth of all the allegations against him. His sudden departure from Pennsylvania was made with the intention to avoid the payment of any debts incurred against him for necessaries furnished his wife. In other words, to avoid the obligation of supporting her, which he was bound to do by contract of marriage. marriage. The letters which were produced in the case show the disposition of some property, which he had as a part of his design in fleeing from Pennsylvania. By thus leaving his wife he authorized | the person who furnished the neces any person dealing in necessaries, or willing to do so, to supply a proper amount thereof for his wife, for which he would be liable upon an implied promise to pay arising out of his obligation as a husband. 1 Parsons on Cont., 150. The Code, § 550, provides that the defendant may be arrested in an action upon a contract, express or implied, where he has since the making of the contract, or in contemplation of making the same, removed or disposed of his property saries to the wife, nor is there any fraud practiced by the husband upon the person who furnished the necessaries, or disposition of property, in contemplation of the obligation existing in favor of the person furnishing necessaries, as to permit an order of arrest against the husband under the circumstances disclosed. BILL OF PARTICULARS. SLANDER. TERM. THIRD DEPT. James Knox, applt. Emory S. Gardinier, respt., v. Decided Sept., 1882. The complaint alleged that defendant uttered certain defamatory words "on or about certain days of the years 1880 and 1881, at Russell, in the presence of divers good and worthy citizens." Defendant made affidavit that he had no knowledge, information or belief as to the times or places, or in whose presence plaintiff expected to prove that the words were spoken. Held, A proper case for a bill of particulars. with the intent to defraud his N. Y. SUPREME COURT. GENERAL creditors. Defendant, in contemplation of the implied contract which he made, by his departure, with any person who might supply the necessaries of life to his wife, and, to avoid the effect of such contract, took away with him property evidently with the intention, as already suggested, of removing or disposing of it in such a way that it could not be reached by process of law. The implied contract to pay, at once created by the defendant's abandonment, was conceived and carried out in a spirit of fraud, as indicated by the sudden and secret flight, and by the appropriation of property in such a way as to prevent success in the effort to collect the amount which might become due from him for necessaries furnished his wife. Order of arrest affirmed, with $10 costs and disbursements. Opinion by Brady, J.; Daniels, J., concurs. Davis, P. J., dissenting, holds that there is no such privity between the husband and Appeal from an order denying a motion that plaintiff serve a bill of particulars. The action is slander. The complaint alleged that defendant uttered the defamatory words. "on or about certain days of the years 1880 and 1881, at Russell, in the presence of divers good and worthy citizens." In another count there was a general allegation, not stating the words nor the persons in whose presence they were uttered. An affidavit to oppose the motion was made, not by plaintiff, but by his attorney. Morris, Kellogg & Morris, for granted, with $10 costs to abide applt. Leslie W. Russell, for respt. Held, A proper case for a bill of particulars. 21 Hun, 457. The order is discretionary. Plaintiff insists he cannot furnish the par the event. Opinion by Learned, P. J.; Bockes, J., concurs; Boardman, J., dissenting. DAMAGES. TERM. FIRST DEPT. In re opening of the Boston road. Decided June 30, 1882. It is the duty of commissioners appointed to assess damages upon private property caused by the cutting through, or improving, public streets, after taking the oath of office, to view the premises affected by the improvement, and to acquire information which there are no means of bringing before the Court. ticulars. This does not appear. N. Y. SUPREME COURT. GENERAL Plaintiff makes no affidavit, but his attorney states his absence and that he believes plaintiff cannot furnish the times and places further than they are stated in the complaint. But the attorney says he has visited the witnesses and knows what evidence they will give, therefore he may know at what spot the words were spoken, about what day and in whose presence. The defendant says, in his affidavit, that he has no knowledge, information or belief as to the times or places, or in whose presence plaintiff expects to prove that the alleged words were spoken. Certainly the complaint gives little information. This case is not like Turner v. James, decided by this court in January, 1882. There it appeared that the plaintiff, a husband, suing for the alleged seduction of his wife, expected to prove the intimacy by a long series of acts from which a jury might infer adultery, and it appeared that he did not expect to prove the act of adultery by any witness. If limited, therefore, to a precise day and place, he might have been prevented from proving the alleged numerous acts of familiarity. Order reversed, with $10 costs and disbursements, and motion When the original jurisdiction is exercised in this manner, it is impossible that there should be any thing like a judicial review. It is impossible, therefore, for the Court to determine upon all the elements existing whether the judgment of the commissioners was right or wrong. Appeal of Hartford B. Kirk, Charlotte L. Garrique and Thomas Minford from an order confirming the referee's report. The principles involved are precisely the same in each case and therefore will be considered together. The appellants claim that the amounts reported by the commissioners in lieu of damages sustained by them, by the widening of the Boston road, are insuffi cient and unjust. John C. Shaw, for Kirk. Brown & Westcott, for Garrique. the opportunity of examining the property, of seeing its location and condition, its adaptation to use, and of inquiring as to value not in the power of the Court, Act of 1813; and the result of such examinations and inquiries cannot be brought before the Court. 13 Barb., 171; 15 id., 277; 19 Wend., 694. Legislation would seem to be necessary to create a system of review which would enable parties believing themselves injured by erroneous awards to present the whole case to the Court. Whether it would be of any practical value or not may be questionable, because the view of the premises and such information in regard to them as may be obtained in an informal manner doubtless has very great value. Order affirmed, without costs. Opinion by Brady, P. J.; Barker and Daniels, JJ., concur. VILLAGES. STREETS. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Harvey Baker, respt., v. The Village of Oneonta, applt. Decided Sept., 1882. Where plaintiff signed a petition asking a resurvey of a street and that it be straightened and widened by the trustees of a village, Held, That the trustees were not thereby protected in going on and taking possession of plaintiff's land to make such widening, without first making due compensation therefor. A municipal corporation or village is liable for collecting waters of a large acreage and discharging them on plaintiff's lands, though such acts are done in changing the grade of streets under its charter. Plaintiff owned certain lots on River street in the defendant village. In April, 1872, he signed a petition asking a resurvey and a straightening and widening of River street. This petition was presented to the trustees, who directed a resurvey; this was made. Thereafter, the trustees, in May, 1872, adopted it. No other steps were taken. The village charter, Laws 1870, chap. 290, title iii., sec. 1, sub. 3, gives the trustees This power to widen, alter, change the grade of, or otherwise improve roads, avenues, streets and sidewalks." In July, 1872, defendant, by its agents, tore down plaintiff's fence, cut down trees, and took possession of some land. Plaintiff forbid these acts. action in part is for these trespasses. The plaintiff also owned a piece of land of about five acres in the village, which was low and marshy; he had drained and reclaimed it; he had constructed a ditch for drainage. In July, 1874, defendant changed the grade of several streets, embracing some 12 acres, and constructed a culvert which discharged the drainage from this acreage into plaintiff's ditch and on his land. Before this the drainage had no fixed direction. In the fall of 1874, considerable damage was done plaintiff's land by waters from this culvert. Plaintiff recovered. L. L. Bundy, for applt. George S. Scramling, for respt. |