notified his principals thereof, and that they did not object to his doing so, together with evidence that he paid for repairs out of moneys collected by him, and rendered statements at specified intervals to his principals showing his collections and expenditures, will support a presumption that he was authorized to take notes.-Murphy v. McLanahan et al., 254.

See BROKERS, 2; CONTRACT, 4, 6, 24; INJUNCTION, 3; TENDER, 2.

AGREEMENT.

See CONTRACT.

ALIENS.

See WILLS, 14.

ALIMONY.

1. An order directing a husband to pay alimony and counsel fee can be made only in an action brought in a case prescribed and defined by the Code of Civil Procedure.Ramsden v. Ramsden, 481.

2. A wife can only secure a separate maintenance when she presents a case entitling her to a decree of separation. Subdivision

1 of 1763 of the Code of Civil Procedure, allowing an action for a separation to be maintained when both parties are residents of the State when the action is commenced, does not apply to a case where the parties were married without the State. Such a case falls under subdivision 3 of § 1762, and the plaintiff must have resided in the State a year before an action can be maintained. -Id.

AMENDMENT.

See APPEAL, 6; ATTACHMENTS, 9; JUDGMENT, 1; MORTGAGE, 27; PLEADINGS, 3, 12; RAILROADS, 1, 2.

APOTHECARIES.

See NEGLIGENCE, 10, 11.

APPEAL.

1. An order of county court dismissing an appeal from justice's judgment is appealable.-Matteson v. Hall, 12.

2. Where a sum of money has been deposited in lieu of an undertaking on appeal to the General Term, and the judgment is there affirmed, and subsequently an appeal to the Court of Appeals therefrom is perfected by filing the requisite undertaking, the court has no power to authorize a change or withdrawal of such deposit.-McIntyre v. Strong, 109.

3. Whether the court has power, under § 1306, Code Civ. Proc., to grant such relief pro |

tanto when the judgment has been materially reduced in amount by the General Term, and such reduction has been accepted by stipulation, quære.—Id.

4. The complaint demanded judgment for $406; the answer set up a counterclaim for $300, but no request to find in regard to it was made and the referee reported for the exact amount of plaintiff's claim. Held, That the judgment was not appealable to the Court of Appeals.-St. Clair v. Day,

117.

5. The specification in a notice of appeal from a judgment of an intermediate order, the time to appeal from which has expired, is a condition precedent to the right to review the order on such appeal.-Piper et al. v. Van Buren, 213.

6. The court has no power to allow such specification to be inserted in the notice after the time to appeal from the judgment has expired.-Id.

7. On application of the attorneys for intervening policy-holders a reference was ordered to take proof and recommend what allowance, if any, should be made them, and a motion to resettle the order so as to show a granting or denial of their application to be paid out of the fund was denied. Both orders were reversed by the General Term. Held, That both orders were discretionary; that neither involved a question of law, and that they were not appealable to the Court of Appeals.-In re Atty.-Gen., v. The Continental Life Ins. Co., 247.

46

8. It is not proper for a County Court to amend a notice of appeal taken upon questions of law, by adding thereto the words, and demands a new trial in the Appellate Court," without restoring the respondent to his position in reference to offer to compromise for fifteen days after the amendment.-Amos v. Bradley, 262.

9. An appeal lies to the General Term of the Court of Common Pleas from a judgment of one of the District Courts of New York

City taken by default upon a defectively verified complaint.-IIurry v. Coffin, 273. 10. The right of appeal in such cases was not abridged by the provisions of law allowing district courts to open defaults.-Id.

11. The General Term has no discretion as to costs in such cases.-Id.

12. An undertaking, on appeal to the Court of Appeals was sufficient to secure the costs, but the respondent claimed that it did not secure the original judgment, entered on a referee's report. On this ground the Special Term set aside the undertaking. Held, Error; and that the question of the sufficiency of the undertaking as a stay was for the Court of Appeals.-Morss v. Hasbrouck et al., 308.

18. Where a notice of appeal is addressed to the attorneys for the adverse party, who at the time of such notice was dead, such attorneys have a standing in court and may move to dismiss, and appellant, having called them into court as the proper repre- | sentatives of respondent, cannot object to their being heard.—In re Beckwith, 491.

19. Even if a moving party is incompetent, the court may of its own motion dismiss an appeal in a proper case.-Id.

20. A finding by a referee on conflicting evidence that an alleged deed of land was never delivered to the grantee is one of fact with which the Court of Appeals cannot interfere.In re application of The N. Y. C. & H. R. RR. Co. v. Cottle et al., 492.

21. An appeal will lie from an order adjudging a party guilty of criminal contempt when such contempt originates in a violation of an order made in a civil action.The People ex rel. Negus v. Dwyer, 494. 22. As to whether there is an appeal from such an order in case of a violation of an

order made in a criminal proceeding, quære. -Id.

23. Where certain relief is granted defendant as a favor, but other relief asked for is denied him, and where sound principles require as a consequence the granting of such further relief, the defendant's acceptance of what is granted docs not preclude him from appealing from that which is denied. -Rodburn v. The Utica, I. & E. RR Co., 530.

See ATTACHMENT, 6; COUNTY COURT ; HIGHWAYS, 1, 2; NUISANCE. 4; PARTIES, 1; PRACTICE, 1, 14, 17, 22, 24, 25; SURROGATES, 9; TAXATION, 8.

ARBITRATION.

See FIRE INSURANCE, 3.

ARREST.

1. Actual intent to defraud should be established to warrant the imprisonment of a debtor.-Hoyt et al. v Godfrey, 45.

2. Defendant's firm borrowed money of his mother and gave a mortgage on certain real estate as security therefor. The mother afterward released the premises, which were sold and the proceeds used to purchase a mill property. This property, with other lands, were conveyed to defendant's mother by the firm by deeds absolute on their face. She received no rents of the property, but interest on the loan was regularly paid to her. Defendant bought out his other partners, but subsequently sold out to his brother, and from the money realized paid his mother $30,000 and some loans from other parties, and then made a general assignment. All the parties to the deeds to the mother, including the counsel who drew them, testified that they were given as a mortgage, and not as absolute conveyances. Held, That the case did not show a fraudulent payment to defendant's mother.-Id. 3. Where defendant sold his stock for 75 per cent. of the inventoried value, but it appeared that the goods had been on hand for many years and were inventoried at the original cost and the evidence tended to show that the purchaser paid market value therefor, Held, That the evidence failed to show a fraudulent sale. -Id.

4. 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.-Tunstall v. Winton, 221.

5. An implied contract is created against a husband who has deserted his wife to pay persons for necessaries furnished to her.Id.

6. The relator was taken into custody by the respondent, in the City of New York, by virtue of a bench warrant issued by the District Attorney of Albany, directing his arrest upon an indictment for contempt of court. Justice Donohue, on petition of relator, issued a writ of habeas corpus, which was subsequently dismissed, the Court of Oyer and Terminer for Albany being in session. Held, The Court of Oyer and Terminer being in session while the proceedings were pending, the justice of the Supreme Court had no power to let the prisoner to bail.-The People ex rel. Sherwin v. | Mead, 552.

7. The Court of Oyer and Terminer in and for the County of Albany had jurisdiction to try the relator upon this indictment, without any order from the Court of Sessions, in which the indictment was found, sending the same to the Oyer and Terminer for trial. Id.

See MASTER AND SERVANT, 6; PRACTICE, 3.

ASSAULT.

See CRIMINAL LAW, 2; EVIDENCE, 8.

ASSESSMENTS.

1. The provision contained in chap. 593, Laws of 1870, relating to the improvement and alteration of streets intersecting Eighth avenue is not fairly or reasonably connected with the subject-matter expressed in the title of the act, and the act in that respect is violative of $ 6, Art. 3 of the Constitution and invalid.-In re petition of Blodgett et al., 21.

2. The Legislature has an unrestricted constitutional power of taxation upon giving the person taxed an opportunity to be heard.-Lang v. Kiendl, 92.

3. When the whole amount assessed to pay for an improvement is in excess of what the work should properly cost, but only a portion of it is assessed on the property along the line, while the remainder is assessed upon the city at large, the property holders along the line are only entitled, under § 27, chap. 383 of the Laws of 1870, to a reduction of their assessments in the proportion in which the sum assessed on their property exceeds the proper cost of the work, and not to one in proportion to the sum in which the whole assessment exceeds the proper cost.--In re petition of McCready, 141.

4. Chap. 697 of the Laws of 1867 contemplated and authorized a local assessment to defray the expense of closing the streets affected by it. In re petition of Barclay, 218.

5. The proper method of ascertaining damages caused to adjacent lands by the closing

of a road is to deduct the value of the land after the road is closed from its value before the road was closed, and from the remainder thus obtained deduct the value of the land in the road which reverted to the adjacent owner.--Id.

6. The words "any street, avenue or road laid out upon the map of the City of New York, within the district specified in the first section of this act," as used in § 3 of chap. 697 of the Laws of 1867, should be construed to mean "any existing street, avenue or road lawfully laid out and established within the district mentioned in § 1 of the act."-Id.

7. An ordinance of the Common Council regularly passed and within the scope of the authority conferred upon it by the Legislature is a law, within the meaning of §4, Chap. 226, Laws of 1871. By that act the Commissioner's power to fix a grade was confined to cases in which no lawful grade had been previously established.—In re petition of the Mutual Life Ins. Co, 301.

8. When the property benefited is only assessed for work lawfully done and the unlawful portion of the expense is charged upon the city because in excess of one-half the valuation of the property benefited, the validity of the assessment is not affected by the fact that a portion of the expense was illegal. -Id.

9. An assessment for a sewer contained an item for surveyors' fees, which was arrived at by taking such percentage of the work on the sewer in question, compared with the whole amount of similar work done during the year, as would remunerate the city for moneys advanced for expenses, making maps, &c. Held, That although this mode of ascertaining these expenses might not produce the exact cost of this item, yet it approximated thereto, and the charge did not appear to be in excess of a sum properly chargeable to this work.In re petition of Lowden, 355.

10. A notice published in the official paper specifying a certain time within which objections may be filed, and stating a day on which the assessment will be presented for confirmation, gives a sufficient opportunity to property owners to be heard in reference to its imposition.—Id.

11. The plans for the construction of sewers for the drainage of the Boulevard were prepared in the office of and by the Engineer of the Department of Public Works, and were completed and filed as early as March 1st, 1872, and the work commenced on certain sections of the proposed work included in the plan on or about August 7, 1872, and while the Department of Public Works had authority to do the work by day's work. The whole plan included various sections

of the proposed work, in one of which nearly all of the property sought by this proceeding to be relieved from the assessment was included. But work on such section was not commenced until the charter was passed in 1873, directing that all work done by the Board should be given to the lowest bidder under sealed proposals. Held, That the making and filing of the plan and commencing work on certain of the sections therein constituted a commencement of the work as to all the sections so as to allow the completion of the whole work by day's work instead of sealed proposals under sec. 91 of chap. 33, Laws of 1873.-In re Blodgett et al., 433.

12. In proceedings to vacate an assessment the presumption is in favor of the regularity and legality of the assessment, and the burden is upon the petitioner to prove one or more of his allegations of irregularity or illegality. In re petition of Voorhis, 475. 13. Where an assessment can be corrected so as to leave no substantial error, that should be done rather than to wholly vacate the assessment. - In re petition of Auchmuty,

510.

14. Where it appeared that certain benefited lots were omitted from the assessment roll, and that items for surveyors' fees and for rock excavation were included in the gross sum assessed, and there being no proof as to how the cost of the latter should have been assessed, Held, That the whole of said item should be eliminated and so much of the surveyors' fees as the omitted lots should have borne.-Id.

See APPEAL, 17.

ASSIGNMENT.

1. The equitable rule which treats as an assignment what is not strictly and legally such cannot apply where there was no valuable consideration for the imperfect transfer.-Tallman v. Hoey, 348.

2. While an action was pending on a claim against the city an interest in such claim was assigned to plaintiff. The claim was afterwards presented to commissioners appointed under an act of the Legislature and an award made, which was paid to the executrix of the original owner, except a sum sufficient to pay plaintiff, which was retained for that express purpose. Held, That the assignment operated as an equitable assignment to the extent named therein of such sum as was eventually allowed upon the claim, and that the retention of the sum by defendant for the payment of plaintiff's claim was such an appropriation of it as could not be revoked to plaintiff's prejudice.-Jones v. The Mayor, &c., of N. Y., 440.

3. Plaintiffs, who were attorneys for H. in several suits, made an agreement with him VOL. 15.-No. 25a.

that they were to be paid for their services out of any sum recovered against defendants or any other person connected with said suits, and that they should have a lien on such recovery superior to any right of H. A judgment was recovered against defendants in favor of H. in an action for malicious prosecution. Held, That the agreement was not in violation of any public policy, and having no features which condemn it operated as an equitable assignment, which, although it could not operate on the unliquidated claim for damages on account of a personal tort, attached to the award the moment it was made.- Williams et al. v. Ingersoll et al., 500.

4. The award was made and held in this State, and none of the parties except one of the judgment debtors resided in Connecticut. Held, That it could not be attached in that State.-Id.

See EVIDENCE, 15; LEASE, 2; Mortgage, 1.

ASSIGNMENT FOR CREDITORS.

1. An assignee for the benefit of creditors is only entitled to commissions on the amount that has come into his hands. and not upon the value of all the property assigned to him. In re assignment of Hulbert et al., 38.

2. Where he has received no money on which commissions can be computed, the case is not provided for by statute, and the court may, before compelling him to return the assigned property to the assignor after a composition, order a suitable and reasonable compensation as a condition of such return. Id.

3. A debt which is worthless by reason of the insolvency of the debtor is not property within the purview of the statute in relation to general assignments.-Hoyt et al. v. Godfrey, 45.

4. The jurisdiction of the Court of Common Pleas to compel an accounting by an assignee and a settlement of his accounts under the provisions of the statute is not exclusive. Such an action may be maintained in the Supreme Court by one creditor for the benefit of all.-Noyes v. Wernberg et al., 72.

5. The assignors are proper, if not necessary, parties defendant in such an action.-Id.

6. An order for the examination of the assignors and assignee, under § 21 of the Assignment Act, will not be granted upon the petition of a creditor alleging as the sole reason therefor facts tending to show fraud in conducting the business and in making the assignment. No order should be granted under said section which is not in aid of the assignment.-In re assignment of Goldsmith, 110.

7. Where a stock of goods, transferred to an assignee, remains in the assignee's possession in the store before occupied by the assignor, possession of the store by the assignee is, presumably, the same as his assignor's was. -Powers v. Carpenter, 155.

8. An assignment of all one's property is broad enough to carry his interest in a lease.-Id.

9. An assignee of a lease cannot set up nonassignability of the lease to avoid payment of rent, nor can he take advantage of his own non-compliance with the statute.-Id.

10. An assignee is bound to know the effects of the assignment.-Id.

11. Where defendant made a voluntary assignment for creditors and included in his inventory a bond and mortgage which were in fact usurious, Held, That such provision for their payment was valid and could be enforced notwithstanding the existence of the defence of usury to the original contract.-Chapin v. Thompson, 159.

12. A person made a transfer of property to another, alleged to be fraudulent as to the creditors of the former and in contemplation of an assignment for the benefit of creditors, and then made a general assignment to the same person. Thereafter a new assignee was appointed, and the first assignee was called to account by a creditor. Held, That on such accounting the County Judge had no power to investigate the alleged fraudulent transfer and compel the first assignee to pay over the property thus fraudulently assigned.-In re accounting of Raymond, 252.

13. The whole of an assignment for the benefit of creditors must be expressed in the written instrument.-Frazier v. Truax et al., 386. 14. The assignors concededly were not indebted to all the persons in whose favor preferences were made. They alleged, in explanation, that the debts, though not owing to the persons named, were owing to other persons, and that the preferences were made, as it were, in trust for the real creditors. No such trust, however, was declared on the face of the assignment. Held, That the scheme was fraudulent in law, and that the assignment was void.-Id. 15. When one member of a copartnership purchases a piece of land, and gives a mortgage upon it to secure his individual bond, the fact that he purchased the land for the firm will not render the other copartner liable for the payment of the mortgage debt. general assignee for the benefit of the creditors of a copartnership is under no liability to pay a deficiency arising after the sale of real estate of the copartnership under the foreclosure of a mortgage assumed by the copartnership other than to provide for its payment with the other debts in the regular course of the administration of his trust,

The

even though he has taken possession of the real property under his assignment.-Payne V. Smith et al., 418.

See ATTACHMENT, 13; CREDITORS' ACTION, 2.

ATTACHMENT.

1. Service by defendant's attorney of a general notice of appearance and a demand that a copy of the complaint be served within thirty days from the time the attachment was issued, is a compliance with all that Section 638 of the Code of Civil Procedure requires to support the attachment.- Catlin et al. v. Moss et al., 14.

2. 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.-Pomeroy et al. v. Moss et al., 25.

3. 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 Procedure. 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.-Id.

4. 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.—Id. 5. An affidavit which states that defendants are non-residents and engaged in business at their residences, and that plaintiff will be unable with due diligence to make personal service of the suminons on them within this State, will be considered sufficient to uphold an order of publication on a motion to vacate an attachment made, not by the debtor, but by another creditor.-Smith v. Mahon, 48.

6. A motion to vacate an attachment on the ground that the court had no jurisdiction, and that an attachment against an insolvent national bank is expressly prohibited by the U. S. R. S., was granted. Held, That as the order related to the mode of procedure, did not affect the merits, and to some extent involved the exercise of discretion, it was not appealable to the Court of Appeals. -The Natl. Shoe & Leather Bk. v. The Mechanics' Natl. Bk., 55.

7. A receiver comes within the terms of § 682 of the Code, giving the right to move to discharge an attachment to any person who, after its issue, acquires an interest in or lien upon the attached property.—Id.