APPEAL.

1. An order of County Court, denying mo-
tion to amend a notice of appeal from
Justice's Court is discretionary and not
appealable to General Term.-Reilly v.
Murray et al., 81.

2. An appeal will not lie to the Court of
Appeals from an order of General Term
setting aside an order determining claims
as to surplus on foreclosure and directing
a new hearing.-The Mutual Life Ins.
Co. v. Anthony, 86.

3. In the absence of a decision in writing
or exceptions, an appeal from a surro-
gate's decree presents nothing to review.
-In re accounting of Otis v. Hall, 120.

4. The question as to the verdict being ex-
cessive can not be reviewed in the Court
of Appeals.-Schenck v. Bingler et al.,
122.

5. Where the return contains no other ex-
ceptions worthy of consideration a de-
fault regularly taken will not be opened.
-Id.

6. The security required to entitle appel-
lant to a stay on appeal from a judgment
entitling respondent to immediate pos
session of property is that provided by S
1331-Birdsall et al. v. Searls et al., 321.

7. In an action of partition defendant did
not answer, but appeared on the hearing
and objected to the referee's findings.
Held, That she was in default and could
not prosecute an appeal.- Avery et al. v.
Woodin, 403.

8. When an order of reversal does not state
that the reversal was made on the facts
and the contrary appears from the opin-
ion, the Court of Appeals is bound to
presume that the reversal was on ques-
tions of law only.-Lewis v. Barton et al,
511.

9. Technical objections to plaintiff's affi-
davit which might have been remedied
if attention had been called to them, can-
not be heard for the first time on appeal.
-Cunningham v. Turney, 542.

10. On the trial plaintiff established a claim
for $1,465.47, less a counterclaim admit-
ted on the trial of $1,265, and recovered a
judgment for the balance, $200.47 and
costs, in all $429 38. Held, That the
amount in controversy was the $1.465.47,
and being for more than $500 the case is
appealable to the Court of Appeals
Reed v. Trowbridge, 572.

See COSTS, 1; CRIMINAL LAW, 7; EVIDENCE,
17; INFANTS, 1; PARTITION, 4; PRACTICE,
18; REFERENCE, 1; SUPPLEMENTARY Pro-
CEEDINGS, 1, 7; TAXES, 18; WILLS, 16.

ARREST.

1. Where the officer intrusted with the
warrant showed it to the accused and re-
quested her to appear before the justice,
which she subsequently did and was ex-
amined upon the charge, Held, An ar-
rest.-Tracy v. Seamans, 117.

2. Under Code, § 549, as amended in 1886,
to justify an order of arrest for "money
received" it must appear that the person
was more than a mere agent; the money
must have been received by him upon
some trust or duty in some fiduciary ca-
pacity. Decatur v. Goodrich, 255.

3. Section 111, Code Civ. Pro., limiting the
time of imprisonment on execution or
other mandate against the person applies
only to executions or mandates to en-
force the recovery of a sum of money,
and does not include orders of arrest
granted before a recovery has been had.
-Levy et al. v. Salomon, 460.

See IMPRISONED DEBTORS.

ASSAULT.

See ELECTION, 2.

ASSESSMENTS.

1. The payment of a city assessment, reg-
ular and valid on its face but in reality
void, gives the payor an immediate right
of action to recover the money paid, and
failure for nearly twenty years to enforce
such right bars the same.-Parsons v.
The City of Rochester, 90.

2. A proceeding to reduce an assessment
abates by the decease of the party prose-
cuting it -In re petition of Palmer, 267.
See CERTIORARI, 4.

ASSIGNMENT.
See BANKS, 1, 2.

ASSIGNMENT FOR CREDITORS.

1. The mere omission to prefer employees'
claims for wages in an assignment for
creditors does not render it void, but the
assignment must be read in connection
with the statute requiring such prefer-
ment and as if it formed a part of it.-
Richardson et al. v. Thurber, 62.

2. An assignment for creditors was made
to defendant in Kings Co., where the as-
signors resided, and filed; it was after-
ward filed in New York, where they did
business. Plaintiff was appointed receiver
of the assignors in supplementary pro-
ceedings, but the order appointing him

was not filed in Kings Co. until after the
assignment. Held, That the assignment
took effect at the time of delivery, and
that the title to the debtors' property
passed to the assignee before any title
vested in plaintiff-Nicoll v. Spowers,
80.

3. Where an assignment is made by copart-
ners of their individual and partnership
property in trust for the firm and their in-
dividual creditors, one who is a judgment
creditor of the firm and also of one of the
assignors individually may maintain an ac-
tion to set aside such assignment on the
ground of fraud.-The Genesee Co. Bk. v.
The Bank of Batavia et al., 214.

4. In such action, a complaint which alleged
that one of the defendants, being a pre-
ferred creditor of the partnership, fraud-
ulently conspired with the assignors and
the assignee to procure the assignment to
be made, with intent to procure an unjust
preference, and, knowing the same to be
fraudulent upon the grounds set forth, re-
ceived payment of a portion of his claim
from the assignee, and judgment was de-
manded against him, was held to set forth
a good cause of action against such de-
fendant, and he was a proper party to the
action.-Id.

5. An assignment for creditors may be ac-
knowledged before a notary public who
is not a party to the assignment, although
he is preferred as a creditor therein,—
Wendell et al. v. Reves, 239.

6. The powers given to the court under the
general assignment act and amendments
thereof are in harmony with the existence
of the trust and in support of its execu-
tion; and the statute evidently was not
made with any view to confer upon the
court the power by a summary proceed-
ing to direct the assignee to deliver over
the property which he claims under the
assignment to a claimant in hostility to the
trust. In re Potter v. Durfee, 329.

7. The provisions of § 22 of the act provid-
ing for the entry of orders, etc, of the
court "releasing assets by the assignee,”
contemplate cases where the assignee him-
self should be satisfied that the release
shall be made and when he is willing to
make it, upon proper authority from the
court.-Id.

8. Such a proceeding is a special proceeding
and on the coming in of the report of the
referee the statute gives no authority to
enter judgment upon it without an appli-
cation to the court; such report must be
treated as ancillary to the decision of the
court.-Id.

9. A provision in an assignment for credit-
ors authorizing the assignee to compound

or compromise debts is valid.—Bagley v.
Bowe, 340.

10. Where the assignment declares that the
property should be sold for money and
the proceeds applied to the payment of
debts, a subsequent clause empowering the
assignee to execute deeds, etc., for such
consideration in money "or other thing"
as he may deem sufficient and necessary
and requisite to carry into effect the in-
tent and purpose of the assignment does
not confer authority to sell on credit and
will not invalidate the assignment.—Id.

11. Evidence sufficient to show an honest
intent of the assignor in withholding cer-
tain property from the assignee.—Id.

12. The act of making an assignment is that
of the assignor, and its validity depends
upon the intent with which it is done, and
as of the time it is made.-Denton v.
Morrel, 379.

13. When the schedules are made by the as-
signee it cannot be said as matter of law
that the assignee has expressed in the
schedule the purpose of the assignor when
he executed the assignment and thus give
invalidity to the assignment.-Id.

14. The assignment may not be found fraud-
ulent against the creditors of a firm if the
firm was liable for any amount within
the terms and purposes as expressed in
the assignment, and that question should
be left to the jury to determine.—Id.
15. A provision in an assignment by a firm
that out of the assets after paying firm
debts the assignee shall pay the individual
debts of the members, and if insufficient
it was to be applied pro rata, is not fraud-
ulent, although their assets and liabilities
are unequal.-Crook v. Rindskopf et al,
444.

16. Such a provision cannot be intended to
defraud firm creditors and until they are
aggrieved they have no cause of action.-
Id.

17. An insolvent member of a firm may
lawfully devote his individual property to
the payment of firm debts to the exclusion
of his individual creditors and fraud can-
not be inferred from such disposition of
his individual property.-Id.

See COSTS, 6; INTERPLEADER, 3.

ATTACHMENT.

1. Plaintiff, as sheriff of N. Y. County, at-
tached certain goods as the property of
defendant in the action in which the at-
tachment was issued. Said goods were
claimed by a third person, and plaintiff in
said action gave a bond to indemnify the
sheriff for attaching them. The claimant

thereupon commenced an action to re-
cover possession of said goods and gave
the necessary undertaking with two sure-
ties. Said sureties were excepted to, and
one of them failed to justify. Thereafter
the action was discontinued by consent,
plaintiff paying the costs of the sheriff.
Subsequently the claimant commenced
an action against the sheriff to recover
the value of said goods, in which judg-
ment was recovered against the sheriff.
In an action against the sureties in the
bond of indemnity given the sheriff, Held,
That the discontinuance of the action of
replevin was proper and constituted no
defense. That the fees of a referee ap-
pointed upon a default to assess the sher-
iff's damages, which default was subse-
quently opened by an order which failed
to provide for the payment of said fees,
were a proper item of disbursement to be
taxed in the costs upon final judgment in
favor of the sheriff.-Bowe v. Brown et
al., 47.

5. A person, other than the defendant, who
moves to vacate an attachment must
show that he has acquired a lien upon or
an interest in the property held under it;
whether he has such lien or interest is a
question which the attaching creditor
may dispute, and if the facts are decided
against the moving party the motion
must fail.-Delmore v. Owen, 370.

6. Where the summons is attached to the
affidavit and the attachment is issued in
that manner it accompanies the summons
within the meaning of § 638, and a state-
ment in the affidavit that the summons
"is annexed hereto " proves that the
summons was made a part of the appli-
cation. The American Exchange Nat.
Bk. v. Voisin, 471.

7. The fact that the indebtedness is stated at
a less amount in the attachment than
was demanded in the summons affords
no ground for setting it aside.-Id.

8. In order to constitute an attachment of
property capable of manual delivery the
sheriff must take actual possession.-The
Nassau Bk. v. Yandes, 486.

9. An indebtedness due the debtor cannot be
attached after he has made an assign-
ment.-Id.

10. Where upon a trial of the action it
appears that plaintiff is only entitled to
maintain the action for an accounting, an
attachment issued therein should be
vacated.-Williams v. Freeman, 493.

11. To constitute a valid levy upon personal
property capable of manual delivery the
sheriff must take it into actual custody,
even though it be pledged.-Warner v.
The Fourth Nat. Bk. et al, 531.

See INTERPLEADER, 4; SHERIFFS, 6-8.

ATTORNEYS.

1. The admissions of an attorney in conver-
sations with third persons, not in the
presence of his client, are not competent
as evidence against the latter as to the
facts of his case.-Fay v. Hebbard et al.,
49.

2. The purchase of a judgment by an attor-
ney for the purpose of collecting it, as
such, by execution, or any other mode
that simply enforces the judgment or its
lien, and not for the purpose of bringing
an action thereon, is not prohibited by g
73, Code Civ. Pro.-Id.

3. Plaintiff, without her attorney's consent,
settled and discontinued her action; Held,
That although the attorney has a lien
upon the cause of action, for his costs, he
should diligently try to secure their pay-
ment from the plaintiff or the fund paid
in settlement and fail therein before the
court will allow him to prosecute the
original action and compel defendants
to pay his costs. —Quinlan v. Birge et al,
161.

4. When any act is attempted to be done by
stipulation of attorneys in a pending ac-
tion, and the clients object, an order in
conformity to such stipulation, except in
rare instances, should not be granted,
even though it may be advantageous to
said clients; and more particularly if it
draw upon a fund in which they have an
interest -Babcock et al. v. Arkenburgh et
al., 184.

5. Upon the application for an order upon
such a stipulation, the client may appear
in person and object thereto, notwith-

standing the fact that he is represented
in the action by attorneys who have
signed said stipulation.-Id.

6. The death of a client terminates the au-
thority of his attorney, and the latter has
no legal power thereafter to obtain an
order amending a judgment obtained by
him for such client.-Lapaugh v. Wilson,
281.

7. The lien of an attorney for a person apply-
ing for the revocation of the probate of a
will attaches under § 66, Code Civ. Pro,
only to his client's cause of action for the
revocation of said probate, and does not
attach to any right which said contestant
has under the will.-In re estate of Hoyt,
373.

8. The beneficiary of a trust for the receipt
of income cannot assign, dispose of, or in
any manner mortgage or pledge his in-
terest in such income, or contract any
debts which can create a lien upon it.-
Id.

9. After an appeal to the Supreme Court
from a decree of the surrogate, refusing to
revoke the probate of a will which has
been perfected, the surrogate cannot make
an order in the proceeding substituting
one attorney for another as attorney for
the contestant.-Id.

10. The relation between attorney and client
is that of agency in respect to such matters
as come within the conduct and manage-
ment of an action in which he is em-
ployed; and ordinarily it would come
within the scope and authority of an at-
torney as such to employ a stenographer
to take the testimony of witnesses and
the liability for the services would be
that of the client.-Thornton et al. v. Tut-
tle et al., 405.

11. A stenographer so employed has the
right to assume, unless advised in some
manner to the contrary, that the attorney
who employed him had the authority
which his relation to his client imported.
-Id.

12. The rules of the United States Circuit
Court which contemplate that the evi-
dence in suits at equity be taken by the
examiner does not qualify the authority
of a solicitor to employ a stenographer,
so long as the evidence taken is made
available for the purpose for which it is
taken. Id.

13. The general guardian of an infant who
has a claim for the recovery of certain
property has the right to employ counsel
and make a contract for his compensa-
tion.--In re application of Hynes, 458.
14. Where an attorney is employed to con-
duct the case for a share of the recovery
he should pay out of his share all ex-

2. Where the bank had been for several days
in an insolvent condition, and the direc-
tors voted to discontinue business and
apply for a receiver, and the cashier,
with knowledge thereof, transferred sev-
eral drafts to a depositor, Held, That
such transfer was in violation of § 187 of
said act, which prohibited any assign-
ment or transfer by any such corporation
when insolvent, etc., with the intent of
giving a preference to any particular
creditor, etc., and as the facts were un-
disputed the court properly refused to
submit to the jury the question of inten-
tion in transferring the drafts.—Id.

3. Defendant had no knowledge of the em-
barrassed condition of the bank when it
made its deposits, and asked to go to the
jury upon the question of fraud of the
officers of the bank in obtaining and re-
taining such deposits, knowing the bank
to be insolvent; which request was re-
fused. Held, No error.-Id.

4. Where deposits made do not exceed the
amount authorized by statute an agree
ment to pay interest on such deposits
will not convert them into unauthorized
loans.--The Erie Co. Sargs. Bk. v. Coit
et al., 17.

5. Certain checks drawn upon plaintiff,
payable to the National Suspender Co.,
when handed to the company's clerk
were by him appropriated to his own use.
The clerk indorsed the checks as attorney