Guardian and Ward.-Their rela-
tions and liability.--Dismissal of
complaint on the trial, on the ground
that it does not state facts sufficient
to constitute a cause of action. See
Nethercott v. Kelly, 27.
Order of attachment, vacation of.—
Plaintiff cannot present additional
affidavit when motion made on
original papers. See Appleton v.
Speer, 119.
Judgment under section 511 of the
Code, in case the answer admits a
part of plaintiff's claim. See Foster
v. Devlin, 120.
Action for equitable relief, under
section 1911 of the Code,by assignee,
of collaterals given to secure pay
ment of a usurious note. See Dick-
son v. Valentine, 128.
Jury. Requests to charge and ex-
ceptions to refusals, and exceptions
to charge, when to be made. See
Walker v. Second Ave. R. R. Co.,
141.
New trial in negligence case, when
not granted on ground of insuffi-
ciency of verdict. See Brooks v.
Ludin, 145.
Costs, security for additional when
cannot be required.-Deposit, with-
drawal of, effect.-Orders when
deemed made under § 3276.—Filing
an undertaking under an order for
an additional security, effect of on
power of court. See Newhall v.
Appleton, 154.
Negligence, death caused by.-Action
to, recover damages, etc.-Practice
as to stating exceptions. See Looram
v. Third Ave. R. R. Co., 165.
General exceptions to refusals to
charge requests raises no question.
See Dresler v. Hard, 192.
Stay of proceedings, non-payment of
costs awarded by a general term
order made on an appeal from an |
order operates as. See Cohu v.
Husson, 222.
Verification of complaint and affi-
davit, when insufficient to warrant
a provisional remedy.--A verifica-
tion before plaintiff's attorney not
good. See Kuh v. Barnett, 234.
Judgment in excess of relief de-
manded, effect of.-Adjudications,
when in excess of relief demanded.
-Foreclosure, adjudication in as
to prior rights or rights in hostility,
when without jurisdiction.—Power
of court over its own judgments.
See Vandenburgh v. The Mayor,285.
Superseding order competently made,
what not ground for.-Order for
examination of third party in sup-
plementary proceedings, when re-
turn of execution not cause for
superseding. See Lingsweiler v.
Lingsweiler, 395.
Sureties on an undertaking given to
stay proceedings on a judgment of
foreclosure and sale pending an
appeal to general term, when not
relieved from liability by proceed-
ings taken to obtain, and the ob-
taining, a stay pending an appeal
to the Court of Appeals.-Procur-
ing the appointment of a person in
place of a receiver declining to act,
when not violation of a stay. See
Mackellar v. Farrell, 398.
Substitution of party plaintiff after
trial of case but before submission.
-Power of the court as to terms
and conditions, etc. See Senft v.
Man. Ry. Co., 417.
Judgment after trial at special term
without a jury, must be based upon
the decision of the court that should
state separately the facts found and
the conclusions of law, and direct
judgment to be entered thereupon.
See Putzel v. Schulhoff, 505.
Order for examination of plaintiff
before answer under section 872 of
the Code, what must appear in the
motion papers. - Vacation of order
within the discretion of the court in
all cases. See Roberts v. Press
Publishing Co., 526.
Receiver appointed in supplementary
proceedings.-Jurisdictional facts
should appear from the order or the
papers on which it was granted.-
Motion for removal of receiver.
See Terry v. Bange, 546.
Trial-Stay of, pending appeal to
general term in another action. See
Brady v. The Mayor, 571.
Order cannot be vacated on motion of
a party on the ground that it is
erroneous.--The general term on an
appeal from an order denying such
a motion cannot inquire whether
there was error in the original
order. See Clapp v. Atterburg, 579.
§§ 870-871-872 Code Civil Procedure,
order construed as being made
under, affidavit for, insufficiency of.
See Swift v. Mayer, 580.
Reference, motion for not barred by
circumstance that the time for
amendment of pleading as of course
has not expired.-Vacating order,
an amended answer not changing
the issues is not cause for vacator.
See Degener v. Underwood, 583.
QUESTIONS OF LAW AND FACT.
Malicious prosecution, action for,
what the plaintiff must establish.
When the question of probable cause
is for the jury. See Young v.
Lyall, 39.
Personal injuries, action for amount
of damages, a question solely for
the jury. See Brooks v. Ludin, 145.
Negligence, action for damages there-
from.-Infant non suijuris. When
negligence of parent becomes a con-
clusion of law. See Weil v. Dry
Dock, etc., R. R. Co., 188.
Perils of the sea, when a loss occur-
ring through an omission of the
captain and a failure of the mate to
act is covered by.-When there is
evidence on both sides as to whether
the captain is responsible for his
omission and whether the failure of
the mate was negligent, those ques-
tions are properly submitted to the
jury. See Hays v. Phenix Ins.
Co., 199.
Ferry boat, injury caused by bump-
ing against landing-place, thereby
throwing plaintiff down.-Contribu-
tory negligence, matters not con-
stituting. When a question for the
jury.-Negligence, presumption of,
when not rebutted. See Bartlett
v. N. Y. & S. B. F. & S. T. Co.,
348.
Jury.-Questions of fact pertinent to
the issue, upon which there is a
conflict of evidence, should be sub-
mitted to the jury by the court, re-
fusal of court is error. See Quimby
v. Carhart, 452.
See JUDGE'S CHARGE; TRIAL.
Railway company bonds and mort-
gage.-Provision for sinking fund
therein to provide for payment or
cessation of interest.-Legal con-
struction, etc. See Henry v. Syr-
acuse G. & C. Ry. Co., 69.
See ELEVATED RAILROADS; NEG-
LIGENCE, 2, 5, 6.
RATIFICATION.
See CORPORATIONS, 4.
In certain cases a person claiming as
heir, and being collateral, should
aver in his complaint that there
are no descendants of the intestate,
nor father or mother living, thus
showing how he became an heir;
but in a case like this under con-
sideration, where the plaintiff
claims no particular estate nor any
cause of action in an ancestor, but
claims in his complaint an estate
in fee simple, the rule is different,
and it is sufficient for him to state
a seizin in fee simple, that is, to
simply allege that he was "seized
in his demesne as of fee of and in a
certain messuage, etc. Held, That
the complaint in this action is suf-
ficient under this general rule.
Masterson v. Townshend, 21.
Vendee of real estate, when action
by to recover money paid on ac-
count of purchase, not maintain-
able. See Beyer v. Braender, 429.
See EJECTMENT; ELEVATED RAIL-
Reference, motion for not barred by
circumstance that the time for
amendment of pleading as of course
has not expired. See Degener v.
Underwood, 583.
In an action to recover damages for
false and fraudulent representa-
tions concerning a certain mine,
the defendant denied the fraud, and
set up a distinct and separate
defence, to the effect that the plain-
tiff, with full knowledge of all the
facts alleged in his complaint, had
for a legal consideration, fully re-
leased and discharged the defend-
ant of and from all claims and de-
mands arising in any way from any
and all of the transactions stated
in his complaint, and on the trial
the release described in the an-
swer was fully established; and it
also appeared that prior to the ex-
ecution and delivery of said release,
that the plaintiff had in his posses-
sion a certain affidavit made by a
third person as to a number of
facts which showed fraud to some
extent, on the part of the defend-
ant, in the original transaction.
The trial judge thereupon ruled
that, in order to succeed, the plain-
tiff was bound to show that the re-
lease had been obtained by fraud,
and also, that the plaintiff had re-
turned or offered to return the
money and property received under
the release. The counsel for plain-
tiff admitted that no such return
nor offer of return had been made,
and upon such admission the court
excluded all further evidence of-
fered in support of the claim of
fraud in the original transaction,
sustained by reason of the fraud,
by means of which he was induced
to enter into the compromise agree-
ment. The original fraud had
been released by the compromise
agreement, and to recover upon
that fraud it was necessary to get
rid of the effect of the compromise
agreement and release, and to do
this it became necessary to prove
a fraud in the compromise and a
return or offer to return of the con-
sideration received for the same.
These results called for an affir-
mance of the order vacating the
order of arrest, in the action.
Davidson v. Sumner, 29.
Where a chattel has been replevined
and is in the possession of the
sheriff, it may not be levied upon
by virtue of an execution against
the defendant in the replevin ac-
tion. Tremaine v. Mortimer, 340.
See JUDGE'S CHARGE, 1, 2; TRIAL,
3, 4, 10.
RES ADJUDICATA.
See JUDGMENT, 1, 10.
RESCISSION.
See FRAUD, 2, 5.
and finally directed a verdict for REVISED STATUTES AND SES-
defendant. Held, that in case the
compromise agreement was ob-
tained by fraud, the plaintiff had a 1 R. S., 727 §§ 47, 48..
cause of action by reason thereof, 1 R. S., 728 § 55..
and had an election of remedies. 1 R. S., 729 §§ 58, 59
He was not bound to rescind and 1 R. S., 730 § 61.
return or offer to return the con- 1 R. S., 730 § 67.
sideration received. He had a 1 R. S., 736 § 113.
right to retain the consideration 1 R. S., 754 § 27.
and to sue for the damages he had | L. 1813, ch. 36.
1. The fee of the streets laid out in
the city of New York while the
Dutch were in occupation, never
was in the Dutch government.
Neither the Dutch nor the Boman
law ever prevailed in the state of
New York de jure. Therefore, the
foundations of the rights of owners
of land abutting on a street laid out
while the Dutch were in occupa-
tion, as against the city and state
of New York, rest upon the Eng-
lish common law. Mortimer v. N.
Y. El. R. R. Co., 244.
2. Even if the fee of the streets laid
out while the Dutch were in occu-
pation was in the Dutch govern-
ment, and the Dutch law governed.
yet the authorities of New Nether-
land recognized the private rights
of abutting owners.
3. Even if the fee of the streets laid
out while the Dutch were in occu-
pation, and the Dutch government
had a title thereto as absolute as
under the Roman law, the title of
the government to a military high-
way was, and such title was ac-
quired by the English government
upon the surrender to them by the
Dutch, yet the English government
could do with it what they pleased;
and as a matter of fact they there-
after so dealt with such streets as
to admit of no other conclusion but
that they took the title and the
streets to be held by them accord-
ing to their own laws. Ib.
4. By the English common law an
abutting owner an a street, there
being no escheat, and nothing in
the deed to him or the deeds under
which he derives title requiring a
different conclusion, owns the fee
of the soil to the centre of the
street, subject to the right of the
public in and to the street for its
use as a highway, which right is a
mere easement; while if there is
anything in the deed to him, or in
those under which he derives title,
requiring a different conclusion,
such as a boundary which carries
the grantor to the street only, still,
although he does not take the fee
of the soil to the centre of the
street, yet, he has an easement in
the street as regards light, air and
access, and an unobstructed view
of signs or of notices of any kind
affixed to the buildings giving
notice at a distance that wares
therein were to be sold.
Ib.
5. Such right to light, air, access and
unobstructed view is private prop-
erty, which cannot be taken or
impaired even for a public purpose
without compensation, and for the
taking or impairment of which,
without such compensation, dam-
ages are recoverable. Ib.
6. In an action by an abutting owner
for damages by reason of the total
deprivation or partial impairment
of light, air, access and view of
signs, and notices affixed to his
building, it is immaterial whether
he owns the fee to the centre of the
street, subject to the use of the
public, or whether the fee to the
bed of the street is in the city of
New York, in trust for the purposes
of a street, and the owner has only
an easement in the street as regards
light, air, access, and view, since in
either case the measure of damages
is the same.
7. Where a finding of fact is in
irreconcilable conflict with the con-
clusions of law and the judgment
based thereon, the judgment must
be reversed on appeal; this al-
though there are other findings
whieh fully sustain the conclusions
of law and the judgment. So held
where the whole theory of the
action was that a certain use of a
certain street was an excessive and
inconsistent street use, and that the
street had not been kept open in
like manner as the other public
streets in the city of New York are
and of right ought to be; and the
trial judge, among other findings,
found that the street, from the
time of its opening, continuously,
had been and then was appropri-
ated and kept open for a public
avenne, highway and thoroughfare
in the city of New York, in like
manner as the other public streets
in the said city are and of right
ought to be; but, nevertheless,
rendered judgment for the plaintiff.
Pappenheim v. Met. El. Ry. Co.,
281.
8. Where in the conveyance of a lot
in a city the property conveyed is
described as part of a lot laid down
on a certain map and designated
thereon by a certain number, and
is bounded in front by a street and
in the rear by a lot designated on
said map by a certain number, and
on each side by lines running par-
allel to a certain other street to the
rear boundary, each of such side
lines being described as of a desig
nated length which, however, is
not sufficient to carry them to the
rear boundary, the length given to
the side lines must give way to
their course as given, and the course
must control the length. Casey
v. Dunn.
9. Held, that it is immaterial for the
purposes of this case whether the
plaintiff had or had not any interest
in the fee of Pearl street in front
of and adjacent to his premises,
and in regard to other objections
taken by the counsel for the defen-
dants on the trial of the case, that
no error was committed that re-
quires a reversal of the judgment.
Stevens v. N. Y. El. R. R. Co., 416.
Elevated railroads.—Easements of
parties owning real estate on the
line of streets after their opening.
See Watson v. Met. El. Ry. Co.,
364.
1. Where an order has been compe-
tently made, it cannot be super-
seded by reason of events subse-
sequently occurring unless they are
such as change the rights of the
parties in requiring an order differ-
ent from that allowed, or would
have called for another kind of
disposition of the matter finally.
The bare fact that after an order
for the examination of a third party
has been competently made in
supplementary proceedings, the
execution has been returned, it
not appearing that it was returned
satisfied, is not sufficient cause for
superseding the order. Lingsweiler
v. Lingsweiler, 395.
2. The order appointing a receiver in
supplementary proceedings that
the motion below sought to set
aside was made in 1862. The prin-
cipal ground for its vacation was
that it did not appear on the face
of the order that the judge granting
the same had jurisdiction in the
premises. That it did not recite
the existence of facts necessary to
jurisdiction. The moving papers
did not set out the whole of the
record of the supplementary pro-
ceedings on which the order was
made. The order alone was set
out; but, in some portion of the
moving and opposing papers, it did
appear that the necessary juris-
dictional facts existed at the time
of the entry of the order, and that
the whole of the record at the time
disclosed that the necessary facts
existed and were proper. The
power of the judge was derived
from section 298 of the Code.
Held, that the judge having power
and jurisdiction to appoint a re-
ceiver, all other directions given in
the order as to bond and matters
|