latter may rescind the contract and recover 6. In the sale of negotiable paper there is an 7. A bill of exchange which comes to the 8. Defendant gave his note to R. & Co. and re- 9. If the parties to a note or bill treat it as due 10. When securities are pledged to a banker 11. Where an obligee delivers up the obliga- 12. Evidence to show such a transaction is 13. Where an endorser of a promisory note upon their promise to give him a new note See ESTOPPEL, 3; EVIDENCE, 12, 35; MAR- NEW TRIAL. See EJECTMENT, 7; PRACTICE, 5, 26, 28, 31, NEW YORK CITY. 1. The present charter of New York City does 2. Where the neglect by an official is in re- 3. Chapter 521, Laws 1880, is not void under 4. The phrase "Clerks of the Police Courts 5. Such officers are not county but city offi- See ASSESSMENTS; REMOVAL 1-16. NUISANCE. 1. The construction by a railroad company of not per se a nuisance.-The People v. The N. Y., N. II. & H. RR. Co., 50. 2. On the trial of an indictment against a railroad company for nuisance in obstructing a highway, the court charged that defendant's liability depended on the question whether its bridge obstructed the enjoyment of the highway by the public, independently of the question whether defendant, in the exercise of its right to construct its road, had restored the highway as near as might be to its former state so as not unnecessarily to impair its usefulness. Held, Error; that he should have submitted the question whether, under all the circumstances, defendant unnecessarily impaired the usefulness of the highway by the manner of constructing the bridge. -Id. 3. In an action by the Attorney General to abate a public nuisance the only question he can raise is as to a public wrong and not as to a contract between individuals.-The People v. The Brooklyn, F. & C. I. RR. Co., 74. 4. In an action to recover damages caused by the setting back of water by a dam, some of plaintiff's witnesses testified that the water was raised fifteen inches; others that it was raised thirteen or fourteen inches, and defendant's witnesses that it was set back only six or eight inches. The court found the dam to be fifteen inches too high, and ordered it lowered to that extent. Held, That plaintiffs were entitled, in support of the judgment, to the most favorable construction of the testimony; that the credibility of the witnesses was a question for the trial court, which was not reviewable on appeal, and that the court having determined that the dam at its present height was an invasion of plaintiff's rights, was authorized to render a mandatory judgment.-Rothery et al. v. The New York Rubber Co., 343. See HIGHWAYS, 8; RAILROADS, 26. PARENT AND CHILD. See DEEDS, 3; EXECUTORS, 13. PARTIES. 1. In an action to reform a contract by cancelling a portion by which the plaintiffs were made members of a partnership and agreed to pay the partnership debts, creditors of the firm, who are not parties to the contract and who were joined as defendants solely to restrain them during the litigation from bringing actions against the plaintiffs on their claims against the firm, are not proper parties to the action and an appeal by them from judgment therein will not lie.- Wheat et al. v. Rice, 104. 2. In a suit in equity, if a good cause of action is stated against any defendant, a demurrer interposed by any other defendant, who is a necessary or proper party for any purpose, on the ground that the complaint does not set out a cause of action against him, should be overruled.-Fowler v. The Mutual Life Ins. Co., 490. 3. A person having a lien upon real estate, and seeking to enforce it, may make all persons parties defendant who assert claims to the premises, whether prior or subsequent to his lien.-Id. See ASSIGNMENT FOR CREDITORS, 5; ATTORNEYS, 11; CONVERSION, 2, 3; EXECUTORS, 9; MORTGAGE, 14, 26; QUO WARRANTO; SURROGATES, 4; WATERCOURSE, 3; WILLS, 20. PARTITION. 1. A legatee under a will cannot sustain an action for the partition and sale of real estate where the will contains authority to the executors to sell the same for the purpose of satisfying the bequests made by the testator.-Davies v. Davies et al., 118. 2. A., who owned fifty acres of land, conveyed an undivided half to A. M. Afterwards, A. gave a mortgage upon the west half of the fifty acres. In an action by plaintiff, who purchased the west half upon a foreclosure of the mortgage, for the partition of the fifty acres, Held, That A. M.'s share of the land should be so set off as not to embrace any part of the west half if he can otherwise have a fair and equal partition. A. M.'s claiming to own an undivided half of the west half of the fifty acres does not raise such a conflict of titles between the plaintiff and A. M. as divests a court of equity of jurisdiction.—Duel v. White et al., 372. 3. The authority to consolidate actions given by 817 of the Code can only be used when both actions are pending between the same plaintiff and the same defendants for causes of action which might have been joined; it does not apply to actions of partition in one of which there are additional defendants who have no interest in the subject of the other.-Mayor v. Mayor et al., 376. See SURROGATES, 7. PARTNERSHIP. 1. A partnership existing between defendant and one R. was dissolved, and notice of dissolution mailed to all persons who had dealt with the firm. R. continued the business in the old firm name, and plaintiff thereafter discounted notes indorsed by him in the firm name, In an action upon said notes it was found upon conflicting evidence that plaintiff did not receive the notice of dissolution, and had no knowledge thereof when it discounted the notes. Held, That as to plaintiff defendant must be deemed to have remained a member of the firm, and that he was liable as such upon the contract of indorsement.-The Nat'l Shoe & Leather Bk. v. Herz, 22. 2. For the purpose of winding up a partnership business one partner has authority to bind his copartner, even though the object for which the partnership was formed has been accomplished.—Newton v. Yale, 33. 3. The articles of a copartnership provided that, in case of death of one of the partners, it might be continued by the survivors jointly with the executrix. One having died, plaintiff wrote the executrix that he desired a dissolution, stated the terms on which he would take the interest of deceased, and afterwards sent checks "in liquidation," which were received under objection to the dissolution. An agreement was made as to valuation and disposition of the stock. After 1873 the business was conducted by the survivors as a new firm. In an action to settle the partnership affairs, Held, That the survivors were not bound to account for profits after the year 1873.Wilson v. Simpson et al., 171. 4. Plaintiff and his ancestors had conducted the business since 1803, deceased being a partner from 1845. The business was transacted upon premises owned by plaintiff. Held, That plaintiff was not chargeable with the good will of the business.-Id. 5. In an action upon a note purporting to be made by a firm, where a defence is interposed that such note was made by one of the partners after dissolution, Held, That a balance sheet, made after such dissolution, under the direction of the other partner, not shown to be a transcript of the books of the firm, and which did not mention the note, was not admissible; that the admissions of one partner, while in possession of the note, to the other, forming no part of the res gesta, are not admissible against plaintiffs, who were holders for value; that the paper was not admissible as a contradiction of the partner from whom plaintiffs purchased, as his attention had not been called to it, and that the fact that notice of dissolution was mailed to plaintiffs in an unsealed envelope was immaterial.-Clews et al. v. Kehr, 272. 6. Where the sole consideration for a note signed in the name of an individual, which is also the name of a firm, is a loan of money which the necessity or whim of an individual as well as his business may require, the lender in seeking to charge the partnership assumes the burden of proving that the money was borrowed for or appropriated to the use of the firm, or that the name was in fact used to denote all the partners.-Gernon v. Hoyt, 284. 7. One S., a general partner in a firm, desired to become a limited partner and procured a friend to temporarily purchase the stock of the firm, loaning him his check for the amount required. The friend thereupon purchased the stock and gave the check to the firm, which paid it over with other checks to the amount of $40,000 to S., who then gave a check for $40,000 as his capital to the new firm. The stock was then repurchased by the new firm for the same price and payment made by check, which was returned to S. in payment for the one loaned. Held, That this was a mere device to evade the statute and that S. was a general partner. — The Metropolitan Nat'l Bk. v. Sirret, 289. 8. Sections 20 and 21 of title 1, chap. IV., part II., of the Revised Statutes, were not intended to prevent special partners from applying their individual property to the payment of individual debts whenever equity and good faith demands and permits it.-George et al. v. Grant et al., 402. 9. That statute does not operate to vitiate a a mortgage given by a special partner to secure actual advances, even though the money advanced was intended to be and was used to pay his individual debts, thus practically giving preference to such debts; and this is so, although he knew at the time of executing the mortgage that he was insolvent, and that the firm of which he was a member was also insolvent.-Id. 10. In an action against a partnership one of the defendants answered that he was a special partner and denied his liability as a general partner. Judgment was recovered against all, but was reversed as to the special partner on appeal. Held, That such action was a bar to a subsequent action against such special partner so far as a recovery was sought against him based on any liability he might have incurred as a general partner by reason of a violation of the statute.-Bell v. Merrifield, 441. 11. In an action by a creditor of an insolvent partnership against the special partner to recover the capital and profits withdrawn by him after dissolution, the plaintiff must, under such circumstances, allege and prove the issue and return unsatisfied of an execution against the general partners.—Id. 12. It is sufficient to relieve a retiring partner from subsequent transactions in the partnership name that the person so contracting with a partner in the firm name knew, or had reason to believe, that the partnership had been dissolved.-The Central Nat'l Bk. v. Valentine et al, 479. See ASSIGNMENT FOR CREDITORS, 15; CONTRACT, 13; CONVERSION, 3; FRAUD, 1; INNKEEPERS, 2; PARTIES, 1. PARTY WALL. 1. Where the owner of land builds a party wall under an agreement with the adjoining owner that, when the latter shall use it, he shall pay to the former, or his legal representatives, one-half of its value, such covenant to pay is a personal one, and does not run with the land.-Hart v. Lyon, 462. 2. The agreement also provided that the expense of repairing or rebuilding should be borne equally by the parties, and concluded by providing that the agreement should be perpetual and construed as a covenant running with the land. Held, That the latter provision only applied to the covenant to repair and rebuild.-Id. PAYMENT. 1. Defendants paid certain drafts to plaintiffs' messenger boy, who paid the money to P., who was plaintiffs' confidential clerk and had authority to receive money and receipt bills. P. embezzled the money. In an action for conversion of the drafts, Held, That although payment to the messenger was irregular, yet the receipt of the money by P. was a valid payment to plaintiffs.Johnson et al. v. Donnell et al., 279. See BROKERS, 4; LIMITATION, 2-5. PHYSICIANS. See EVIDENCE, 36. PLEADINGS. 1. In an action on a promissory note for the payment of which collateral security was given in the shape of a pledge deposited with the payee, a conversion of the pledge can be interposed as a counterclaim, because the rights of action spring out of a single transaction.-Cass v. Igenbotam,135. 2. A count for an injury to a horse by excessive driving is properly joined with a count for conversion of a horse.-Summerville v. Metcalf, 154. 3. A referee has power to allow an amendment of the complaint changing the form of action, the substance of the claim being the same. The Oregon SS. Co. v. Otis, 165. 4. In an action on a covenant to recover damages for the non-payment of taxes upon property in another State, which taxes were paid by the covenantee, he being liable on certain unpaid bonds and mortgages on the premises, the foreign statute, under which the taxes were laid, is sufficiently pleaded when the complaint avers that under and in pursuance of certain sections of certain statutes of said State, which are specifically described, a tax was imposed on the said premises, which was a first- lien upon them, and that they were liable to be sold therefor.-Kip v. McLean, 168. 5. The effect of the enactment of Subd. 4, $549, Code Civ. Pro., is that an action upon a contract fraudulently contracted is in the nature of an action on the case, with the contract as one only of its facts, and a motion to strike out as irrelevant, &c., all the allegations of the complaint relating to the fraud cannot be entertained. The sufficiency of the pleading in that respect may be brought before the court on demurrer, or if there be in the allegations of fraud irrelevant or redundant matter it may be stricken out on motion.-Rowe v. Patterson, 182. 6. A complaint in an action for causing death by wrongful act which alleges that defendant wrongfully and wilfully refused to stop or render assistance, although requested to do so, is sufficient, although the absence of contributory negligence is not alleged.Melhado v. The Poughkeepsie Transp. Co., 193. 7. A requirement that defendant pay a trial fee as a condition precedent to serving a supplemental answer is not such an abuse of the discretionary power of the court as calls for a reversal of the order granting leave to do so. - Wilcor v. Daggett, 208. www 8. A verification of a complaint in an action on a written instrument for the payment of money only, made by the attorney, which states that such instrument is in deponent's possession and is the source of his information and belief, is sufficient.-Hyde et al. v. Salg, 211. 9. A complaint in an action in the nature of a creditor's bill, which seeks to have set aside chattel mortgages upon the judgment debtor's property held by certain of the defendant's, and also a general assignment made by said debtor to another defendant, upon the ground that they were all given in pursuance of a scheme of fraud, and which also prays the enforced foreclosure of a valid chattel mortgage held by another defendant against whom no allegation of fraud is made and no other specific relief is asked, is demurrable for joinder of different causes of action which do not affect all the parties.-Higgins v. Crichton, 248. 10. It cannot be claimed that no cause of action is stated against the defendant whose security is not impeached, the pleader having assumed to allege one.-Id. 11. Where a complaint stated a clear cause of action against the endorser of a note and the answer contained no denial but alleged that the note was an accommodation note and was taken by plaintiffs at a usurious discount, Held, That this was not sufficient to put the allegations of the complaint in issue; that the omission to controvert plaintiff's allegations has the force of a formal admission; and that, under the pleadings, defendant was not at liberty to prove any state of facts inconsistent with his admission. -Fleischman et al. v. Stern, 274. 12. An order was made granting leave to plaintiff to amend his complaint by adding as a cause of action a further claim against the defendant, which claim was in itself barred by the statute of limitations so that plaintiff could not have maintained an orig. inal action thereon, Held, Error; that said order was unauthorized.-Quimby v. Claflin et al., 332. 13. The decision of a motion to make an answer more definite and certain requires only an examination of the answer. It is not proper to order a reference to take proof of facts.-Hopkins v. Hopkins et al., 520. See DAMAGES, 1; EXCISE, 2; LEASE, 6; NEGOTIABLE PAPER, 13; PARTIES, 2; PRACTICE, 37, 38; QUO WARRANTO, 2; TAXATION, 4. PLEDGE. See CONVERSION, 1; NEGOTIABLE PAPER, 10; PLEADINGS, 1. POLICE. 1. When charges preferred against an officer of the police force are tried before only one Police Commissioner, it is essential to the valid removal of the officer that, when the Board of Police Commissioners make such removal, the Commissioner who presided at the trial should be a member of it.-The People ex rel. Mohr v. Police Comrs., 111. 2. Relator, a police captain, sent two policemen in the middle of the night to the house of one Mrs. J., against whom no warrant was issued or complaint made, and caused her to be brought to the station house, where he examined her for an hour in a vulgar and coarse manner as to matters of which she knew nothing. For this he was discharged. Held, No error; that he had no right or authority to do so.-The People ex rel. Riley v. Jourdan, 278. See CONSTITUTIONAL LAW, 4, 5. POOR. 1. A wife becoming insane left home and was taken to her brother's house. She was adjudged a lunatic and a committee appointed. After her separate estate was exhausted she was turned over to the overseer of the poor and became a county charge until her husband's death. Held, That she was a "poor person" within the meaning of 1 R. S., 616. § 14, and that an action could be maintained by the superintendent of the poor against the executors of the husband to recover the amount of expenditure necessarily incurred on account of the wife.-Goodale v. Lawrence, 242. 2. An insane wife is incapable of abandoning her husband.-Id. PRACTICE. 1. Unless a motion is made for a new trial on the minutes or at Special Term the facts will not be considered on appeal to the General Term.-Newton v. Yale, 33. 2. Where the evidence is conflicting, but is all submitted to the jury under proper instructions, the verdict is not the subject of review in the Court of Appeals.-Groth v. Washburn, 80. 3. In a case in which there is an order of arrest, the propriety of which may be questionable, but which was not improperly or improvidently granted, and also an attachment under which sufficient property has been attached to pay the plaintiff's debt, the plaintiff should be required under § 719 of the Code of Civ. Pro, to elect between the two provisional remedies.-Duncan et al. v. Guest, 112. 4. Where the right of dower and the legality of a divorce barring that right are in question upon the same estate between the same parties in different counties, an application, under 791 of the Code, for the advancement of one of the causes upon the calendar may be granted, or a conditional order may be made directing the advancement unless defendant stipulates to place the action in the foreign county upon the preferred calendar within a period specified by the court.-Yates v. Stiles, 113. 5. The Special Term of the Supreme Court upon motion, and the General Term on appeal from its order, has the power to set aside a verdict if it was not sustained by the evidence; and it is not necessary to entitle the defeated party to invoke the exercise of that power that he should have moved for a nonsuit or asked for a direction of a verdict and have excepted to their denial.Kelly v. Frazier et al., 114. 6. Where the judge has stated in part to the jury the effect of the verdict upon the costs, with the implied assent of both parties, it is not error for him to state the further effect of the verdict in that respect, on being requested so to do.-Kanna v. Kester, 119. 7. Judicial cognizance. founded on public rumor, can only be taken of a matter which has become notorious and of general public interest and concern, and not of a transaction, custom or event of mere local or private interest possessing little notoriety.The Market Nat'l Bk. v. The Pacific Nat'l Bk., 129. |