convenience of Young the car containing the coal was left near

ATTACHMENT. APPEAR

ANCE.

on the second track from the west. Plaintiff was employed by Young to help haul the coal away, and while procuring a load from the car plaintiff's horses and wagon were struck by a car being backed upon the west track. Evidence that other persons draw ing from the same car had left their horses and wagons standing in the same place was admitted under defendant's objection and exception.

Henry Smith, for applt.

Van Rensselaer, Hill & Roods, for respt.

Held, No error. That the defendant as a consequence was bound to exercise due care and prudence towards the plaintiff, who was lawfully upon its premises by its implied invitation. 32 N. Y., 333. The negligence of the defendant and the contributory negligence of plaintiff were questions which under the circumstances must be decided by the jury. 79 N. Y., 464. They were properly submitted, and the verdict is conclusive in those respects upon us. Further held, That it was proper for the plaintiff to show that the vicinity where this injury occurred was used by others in the same way for unloading cars.

Judgment and order affirmed, with costs.

Opinion by Boardman, J.; Learned, P. J., concurring; Landon, J., not acting.

Vo. 15.-No. 2.

TERM. FIRST DEPT.

William L. Pomeroy et al., applts. v. Ralph Moss et al., respts.

Decided May 27, 1882.

A voluntary general appearance of a defendant within thirty days after the issuing of a warrant of attachment is sufficient to prevent the warrant from becoming inoperative, and dispenses with the necessity of serving him with summons.

A statement in an affidavit, upon which a warrant of attachment is issued, that "the defendant owes the plaintiff a certain sum over and above all counterclaims known to plaintiff, for goods sold and delivered, of which no part has been paid," does not sufficiently show a cause of action as required by sub. 1 of 636 of the Code of Civil Proedure. The proper method of showing a cause of action, as required by that section, is by setting forth the facts by which the liability was created.

When the order vacating a warrant of attachment is not restricted to any specific point of objection, it may be sustained on any legal ground appearing in the case.

Appeal from an order vacating an attachment.

A warrant of attachment was issued in this action on an affidavit of the plaintiff, in which the cause of action was stated as follows:

The defendants owe my firm $808.17, over and above all counterclaims known to plaintiffs, for goods, wares and merchandise sold and delivered by my firm to defendants, who are copartners. No part has been paid."

One of the defendants was not personally served with the summons in this action, either within

or without the State, nor was service by publication commenced within thirty days from the granting of the warrant, but within that time the defendants appeared generally.

The defendants moved to vacate the attachment on the ground that one of them had not been served with summons, as required by § 638 of the Code, and also that the affidavits on which it was granted did not show a cause of action.

This motion was granted solely on the ground that this case was not distinguishable from that of Blossom v. Estes, 84 N. Y., 614. Melville H. Regensburger, for applt.

C. W. West, for respt.

Held, That under § 638 of the Code, as construed with $424, a voluntary general appearance of the defendant within thirty days after the issuing of an attachment prevents the attachment from becoming inoperative because of a failure to make a formal service of the summons itself. Such a service is wholly dispensed with by an appearance of this nature. It is made equivalent to a personal service of the summons, and that would not be the case if it was not a sufficient compliance with the requirements of 638 of the Code.

That the case of Blossom v. Estes is clearly distinguishable, for in that case it was held that

an appearance after thirty days from the issuing of the warrant did not revive an attachment.

That where the order by which an attachment is vacated is not restricted to any specified ground of

objection, it may be sustained upon any legal ground appearing in the case. 60 N. Y., 475, 479.

That the affidavit upon which the warrant was granted did not comply with the requirements of subdivision 1 of § 636 of the Code. The allegation of the affidavit was of a most general character, from which the inference was derived, not supported by any facts or circumstances, that the defendants owed a certain sum to the plaintiffs.

That the only legal mode of alleging a cause of action, as required by § 636 of the Code, is by setting forth the facts by which the liability shall appear to have been created.

That this case differs from Kiefer v. Webster, 6 Hun, 526, where it was stated that the defendants. had promised to pay the amount claimed, and from which the inference could be drawn that the goods sold and delivered were sufficient in amount to sustain the promise to pay the sum included in it.

Order affirmed, with costs.

Opinion by Daniels, J.; Brady, P. J., concurs.

EMINENT DOMAIN. PRACTICE.

N. Y. COURT OF APPEALS.

w. S. RR. Co. to acquire title, &c. In re application of the N. Y. &

Decided June 30, 1882.

The petition for the appointment of commissioners to appraise the lands to be taken contained an offer of a drawbridge. After

the order of appointment was made the petitioner was allowed to amend by striking out this offer. Held, Error; that the al

teration was of a vital character, and deprived the owners of their right to answer the petition.

The power to amend the proceedings given by 20 of the General Railroad Act does not embrace an entire change of the ground on which the application is founded.

This is an appeal from an order of the General Term, affirming an order of the Special Term appointing commissioners to appraise damages for taking the lands of the appellants.

The petition which was served and upon which the order was granted, contained an offer of a drawbridge. After the order appointing the commissioners had been made and appealed from, the court allowed the railroad company to amend the petition by striking out the statements in regard to the drawbridge.

E. A. Brewster, Wm. W. Badger and G. Tillotson, for applts. C. F. Brown, for respt.

Held, Error; that the proceedings being statutory, in derogagation of the common law, the statute should be substantially followed. The petition being the foundation of all the subsequent proceedings, and the owners of the lands having a right to file an answer to it, the alteration in regard to the drawbridge was of a vital character, and the granting or withholding of the drawbridge and cutting off the right of the riparian owner from the river or from furnishing access to it may have made a material difference. As it stands, no oppor

tunity has been furnished to answer the petition, and the appellants have been deprived of the right by the order granting the amendment.

It was claimed that the court had power to amend the petition under $20 of chap. 140 of the Laws of 1850.

Held, Untenable; that provis ion is limited to "any defect or informality," and does not em brace an entire change of the ground upon which the applica

tion is founded.

Order of General Term, affirming order appointing commissioners, reversed, and as the petitioner does not seek to maintain its right to take the land upon the original application, the proccedings should be dismissed.

Opinion per curiam. All concur; Earl, J., in result.

SAVINGS BANKS. JOINT
OWNERS.

N. Y. COURT OF APPEALS.

Mulcahy, respt., v. The Emigrant Industrial Savgs. Bk., applt.

Decided June 20, 1882.

Plaintiff and one O. opened an account with defendant in their joint names, each contributing to the fund, and plaintiff informed defendant's officers that either or both of them could draw the money. O died, leaving the pass book with his wife. Plaintiff notified the defendant not to give the money to O.'s wife when she presented the pass book, but it afterwards did so on presentation of the book and letters of adminis. tration. In an action to recover the amount on deposit, Held, That defendant having had notice of plaintiff's rights could not justify payment to O.'s representative under the

the inference that each of the de

original authority or by reason of the rule

longed to plaintiff, but that plaintiff was only entitled to recover of defendant to the

extent of her actual interest in the fund, and that a direction for a verdict in plain

tiff's favor for the whole amount of the deposit was erroneous.

Reversing S. C., 12 W. Dig., 34.

This action was brought by brought by plaintiff to recover an amount on deposit with the defendant. It appeared that the account with defendant was opened in 1862, and the last deposit made in 1871. Simultaneously with the first deposit a pass book was issued, with the rules printed thereon, which contained the following heading: "Dr. The Emigrant Ind. Svgs. Bk., in account with John O'Keefe or Ellen Mulcahy, Cr." The account on the books of the bank was in the same form. The plaintiff and O'Keefe were aunt and * nephew. No explanation was made of the manner in which the account was opened. On the trial it was admitted that when the first deposit was made plaintiff, in the presence of O'Keefe, said to the officers of the bank "that either of them or both could draw the money." There was no distinct evidence as to the respective interests of plaintiff and O'Keefe in the money deposited with defendant. It was admitted that they were both present when the deposits forming the account were made. Plaintiff testified that she "saved her husband's money and deposited it in the bank." It did not appear what portion of the money, if any, belonged to O'Keefe. The evidence justified

and that as between themselves their interests therein were several. One of defendant's rules printed on the pass book provides that all payments to persons producing the pass book shall be valid payments to discharge the bank.

O'Keefe died in 1873. Plaintiff on the day after his burial informed the officers of the bank of his death and that his wife had the pass book, and notified them “not to give her money to Mrs. O'Keefe when she should come with the bank book;" and asked them "what way she had for saving her money." The bank a few days thereafter paid the deposit to Mrs. O'Keefe on her presenting the pass book with letters of administration.

A verdict for the whole amount of the deposit made by plaintiff and O'Keefe was directed for plaintiff.

John E. Develin, for applt.
L. C. Dessar, for respt.

Held, Error; that defendant having had notice that the fund belonged to plaintiff, and having been prohibited by her from paying it to the representative of O'Keefe, it could not thereafter justify payment to the latter under the original authority or by reason of the rule in the pass book, if the money of right as between. plaintiff and the estate of O'Keefe belonged to the former. The case was a proper one for an interpleader, in which the rights of the respective claimants could be judicially ascertained. Defendant

Appeal from the decree of the Surrogate of the County of Essex, entered on the 4th day of November, 1881, admitting to probate the last will and testament of James O'Neil.

The portion of the will offered for probate on the fourth page of the sheet of paper was after the signature of O'Neil and after the attestation clause and signatures of the witnesses, all of which were on the third page. In the body of the instrument, preceding the signatures, no reference is made to the part on the fourth page. That

part was read to the testator, and the evidence shows he considered it a part of his will. It seems to be the concluding portion of the thirteenth clause of the will, writ ten upon the fourth page because there was not room enough on the third page before the printed clause appointing executors and the attestation clause. The question presented is whether a will so executed is valid under our statutes.

Waldo & Grover, for applts. Bishop & Hickey and Richard L. Hand, for respt.

Held, Error. That, by our Statute of Wills, 2 R. S., 63, § 40, a proper execution of a will requires that it shall be subscribed by the testator at the end of the will, and that each attesting witness shall sign his name as a witness at the end of the will. * * * The instrument seems more objectionable and far more dangerous than the one rejected in Sisters of Charity v. Kelley, 67 N. Y., 409, which is quite conclusive of the case now under consideration.

Decree of the surrogate reversed, with costs to both parties out of estate, and probate denied.

Opinion by Boardman, J.; Learned, P. J., and Landon, J.,

concur.

SURETYSHIP. JUDGMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. William F. Kidder, respt., v. John Bowne et al.

Decided May 27, 1882.

A surety on a general guardian's bond who was not a party to an accounting between