service of the injunction, the property the property and the entry of the judg was sold at public auction, pursuant to ment for deficiency were made theresaid decrce, and purchased by Dingee after; that from the 5th of February for $100, subject to a prior mortgage, all the property of the debtors was in and a judgment for $22,115.42 deficien- the hands of this court. and that the iscy was entered against said Mary Irv-suing of the order to show cause was a ing. sequestration of such property, conditional until the adjudication, absolute after that. In all this he acted in good faith, under advice of counsel, and with no wilful intention to disobey the injune tion. On this state of facts the motion is made by the assi, nee to punish Dingee for a violation of the injunction. F. Fellows, for motion. Dexter A. Hawkins, opposed. Held, That the principle that the court has the power to punish for contempt those who interfere with the property of a bankrupt, by selling it after the adjudication, has its limitations. In the case of Eyster v. Gaff, (13 N. B. R. 546; 2 N. Y. W. Dig. 75) it was held that an adjudication in bankHeld, That the injunction ceased to operate when the adjudication of bankruptcy did not divest a State Court of ruptcy was made on the 19th of Feb jurisdiction over a ruary, 1876; that the words "in the against the bankrupts' property then meantime" cannot be construed to a foreclosure suit pending before it. This being so, the mere filing of a petition in involuntary bankruptcy against the mortgagor does not divest such jurisdiction. In this case the decree of foreclosure was made mortgagee of his right to execute the decree by a sale of the property. The sale was made before the assignment to the assignee. There was no contempt mean a time later than the time an adjudication of bankruptcy is made on the petition, if one is made; that the injunction in this case was limited to before the adjudication of bankruptcy. the time of the "hearing and decision on the said petition," and the adjudica-State Court of its jurisdiction, nor the The adjudication did not deprive the tion was such decision; that the words. "and until the further order of the court" in the injunction, cannot be so construed as to give it a duration beyond that authorized by section 5024, i of the authority of this court in executor beyond that distinctly implied by i ing the decree of sale so far as to sell the words "until the hearing and de-i cision on the said petition." In re the absence of an injunction from this the property and give a deed for it, in Moses, 6 N. B. R. 181. court, and that entering the judgment It was claimed that, independent of for deficiency was no violation of any the injunction, the proceedings of Din-injunction nor any interference with gee were a contempt of this court be- any of the property of such bankrupt cause the petition in bankruptey was Mary Irving, and therefore there was filed on the 5th of February, 1876, and no contempt committed. the decree of the State Court was not made until the 12th, and the adjudication of bankruptcy was made on the 19th of February, 1876, and the sale of Proceedings for contempt dismissed, with costs to be paid by the assignee out of the funds of the bankrupt Mary Irving, in his hands. Opinion by Blatchford, J. EVIDENCE. 1. The testimony of Mr. Bigelow, N. Y. SUPREME COURT. GENERAL TERM. plaintiff's attorney, as to admissions and FIRST DEPARTMENT. conversations with the deceased, John II. McCunn, during his life time. 2d. In allowing one of the witnesses for the plaintiff to refresh his memory and recollection by an inspection of the Franc's J. Parker, respt. v. Jane W. McCunn, as ex'trix. and James M. Gano as ex'r. of John H. McCunn, applts. Decided May 1st, 1876. When a verdict is directed for plain. paper and by reference to the same, tiff on the trial, it is unimportant to purporting to be the stenographer's consider the exceptions to evidence if minutes in a certain other suit entitled there be in fact such uncontradicted, McCr ery v. McCunn, without adequate and unexceptionable evidence, that it or sufficient proof that they were the was the duty of the court to direct ainutes of such reference, and also beverdut upon that alone. Attorney for plaintiff has not, for that reason alone, such interest as would exclude his testimony as to admissions made by defendant's testator, under section 399 of the Code. It is proper for the court to direct a verdict whenever a verdict contrary to such directionss would be set aside as being against evidence. Appeal from judgment entered on erdict directed by the court. Action brought to recover moneys alleged to have been received by the defendants' testator. Answer set up substantially a general denial and counter claim. As appeared from the evidence, the defendants' testator, who was an attorney-at-law, recovered a judgment for $2,780.70 for plaintiffs as their attorney, in an action brought by Barnes et al., v. Willett, former sheriff of New York. That the money was collected in said suit by defendants' testator, and this action is brought for its recovery by plaintiff as assignee of the claim from Barnes et al. At the close of the evidence on both sides, the court directed a verdict for the plaintiff. On the argument of the appeal the appellant's counsel urged that the court erred in allowing cause such minutes or memorandum was not made by the said witness. Albert Stickney, for respt. Held, Of course it cannot be said that the jury were influenced by any evidence improperly received upon the trial, and it is not necessary to consider the exceptions to evidence if there be in fact such uncontradicted and unexceptionable evidence that it was the duty of the court to direct a verdict upon that alone, without respect to the evidence excepted to or in conflict. That with reference to the testimony of Bigelow, the defendants wholly failed to show that he had any other interest in the case, or in the question involved in it, than that which pertains to every attorney who is prosecuting a suit on behalf of his client. There is nothing, therefore, in this point. Sec. 399 of the Code does not apply to such a case. As the receipt of the money, by defendants' testator, was established by the testimony of two other witnesses, and there was sufficient uncontradicted evidence to justify the dire tion of the verdict for plaintiffs aside from that, it becomes unimportant to consider whether the court erred in allowing the wit she came into possession of the passbook on the death of her husband. ness Parsons to refresh his memory by from the bank on several occasions, but the inspection of the minutes in the the wife never drew any money until suit of McCreery v. McCunn. For, striking out the minutes altogether, and the use that was made of them for any purpose, there still remains such uncontradicted evidence in the case as required, we think, the judge to direct a verdict for the plaintiff. It is proper for the court to direct a verdict whenever a verdict contrary to such direction would be set aside as being against evidence. Stone v. Fowler, 47 N. Y. 566. The plaintiff clearly established his right to recover as assignee of the demand, and no good reason appears for interferring with the verdict. The judgment must therefore be af firmed. Opinion by Davis, P. J.; Brady and Daniels, J.J. concurring. GIFT INTER VIVOS. N. Y. SURROGATE'S COURT. In the matter of the accounting of Catherine Ward, administratrix of Richard Ward, deceased. Decided June 5, 1876. A deposit of moneys in a savings bank in the joint names of husband and wife is not such a gift as will entitle the wife to hold the same on the husband's death, without proof of further delivery. In the absence of such proof, the moneys belong to the estate of the deceased. Objections to the final account of the administratrix on the ground that it does not embrace a deposit made by de ceased in the Excelsior Savings Bank, amounting to $3045. It is claimed by the administratrix, the wife, that the deposit of the money in the name of Richard or Kate Ward, is evidence of a gift of the fund to her. Daniel T. Robertson, for claimants. Man & Parsons, for admr'x. Held, That the transaction lacks the essential features of a gift inter vivos, in which expressions of intention to make a gift, and an actual delivery of the subject thereof to the donee, must concur, (33 N. Y., 581; 55 Id. 624; 47 Barb., 370); that there was not such a parting with the possession or title to the money so deposited as to divest the deceased of all right to the money, which is an essential feature of a gift inter vivos; that the fact that it was deposited in his name as well as his wife's, is the highest evidence that he did not intend to part with his control of it, and that the most that can be said of the transaction is that he intended, under the rules of the bank, to enable his wife to draw the money if he were unable to do so, and in this she would act as his agent. The fact that the Look was never in the possession of the administratrix until after the death of intestate, fortifies me in the decision that the deposit of the money in the name of Richard or Kate Ward was not intended as a gift to the wife. Opinion by D. C. Calvin, Surrogate. CERTIORARI. The deceased, in his lifetime, deposit- N. Y. SUPREME COURT. GENERAL TERM, ed the said money in the bank in the name of "Richard or Kate Ward.” FIRST DEPARTMENT. The People ex rel. Mathew Lyon, Ile kept the pass-book and drew money applt., v. William F. Smith and others, Commissioners of the Police Department, repts. Decided May 26, 1876. The relator endeavored to excuse his delay, by showing that he had some reason to expect that the Board would reThe right to the writ of certiorari to consider the proceedings in which he remedy a private wrong, is lost, un- was dismissed, and restore him to his less application is made for the writ position. But the long delay that inwithin a reasonable time after the tervened was not sufficiently accounted commission of the wrong complained for by what was done for that purpose. of; and any laches must be satisfac- A very short period of time diligently torily explained. The writ will not be granted after a lapse of more than three years from the commission of the act complained of. used, would have served to dissipate all doubt as to the probability of the suc cess of those exertions. After all proper indulgence for that Appeal from order denying motion purpose the delay was so great as to defor writ of certiorari to review proceed- prive the relator of all right to this ings by which relator was dismissed writ. from the police of the city of New York. The complaint against relator was for being off duty. The irregularity or wrong complained of was, that upon the relator's trial before but one of the Police Commissioners, the Commissioner refused to hear the testimony of witnesses in relator's defence, which wtnesses were at relator's intance be The order should be affirmed with ten dollars costs, besides disbursements. Opinion by Daniels J.; Davis, P.J., concurring. N. Y. COURT OF APPEALS. fore the Commissioners ready to be v. Conner. sheriff, &c., respt. sword. The dismissal of the relator took place on the 17th day of May, 1871, and his application for the writ of certirari to review the proceedings on which it was directed was not made until the 22d of September, 1874. H. M. Whitehead, for applt. Chas. F. McLean, for respt. Held, That the delay in making the application is so great as to justify the order made denying the application. (Elmendorf v. Mayor, &c., 25 Wend. 693; People v. Mayor, &c., 2 Hill 9.) The writ was applied for to redress a private injury, and for that reason these authorities are entitled to be accepted as controling in the case. Decided April 4, 1876. An order quashing a writ of habeas corpus can only be reviewed by an appeal from the order. This was a motion to quash a writ of error brought to review an order of the General Term affirming an order of Special Term quashing a writ of habeas corpus. J. F. Donovan, in person, for motion. Held, That the order quashing the writ of habeas corpus could only be reviewed by an appeal from the order; that a writ of error would not lie. Motion granted. Per curiam opinion. TION. mortgage of $200. That a few days before judgment was obtained, the defendant Stewart, for the purpose of defrauding Mrs. Niles, conspired with defendant Hotchkiss, who was his brother N. Y. SUPREME COURT. GEN'L TERM, in-law, to cheat and defraud Mrs. Niles, FOURTH DEPARTMENT. Frank Hale, receiver, &c., respt., v. George Stewart and Henry W. Hotchkiss, applts. and hinder and delay her in the collection of her judgmeat; and for that purpose Stewart executed and delivered a deed of his real estate to Hotchkiss, with knowledge on his part of the fact that Stewart had no other property or Decided April, 1876. The fact that demands, in considera-means to pay the said judgment, and of tion of which a certain conveyance his insolvency after the transfer. That was made were stale, did not render the conveyance fraudulent and void the transfer was upon the pretended as to creditors; the demands being consideration of $300, which was made bona fide. up of stale demands and accounts, and some in 1861, 1862, 1665 and 1868, and that the conveyance to Hotchkiss was fraudulent and void as to Mrs. Niles. errone Appeal by the defendants from a which were many years old, and some judgment entered at the Onondaga of which, according to defendant's tesSpecial Terin, in favor of the plaintiffs. timony, accrued as far back as 1855, The action was brought for the purpose of having a deed from defendant Stewart to the defendant Hotchkiss declared fraudulent and void as to a judg ment in favor of Fannie Niles, against Gilbert & Hancock, for respts. the defendant Stewart. The plaintiff Lansing & Lyman, for applts. was appointed receiver in proceedings Held, That the decision of the supplementary to execution, instituted judge at Special Term was in behalf of Mrs. Niles, under her judg-ous; that although the greater part ment. The receiver was authorized to of the debt from Stewart to Hotchbring this action, and after issue join-kiss had existed for more than six ed the cause was tried at Special years prior to the time of settleTerm, and resulted in a judgment for ment, it by no means follows that the the plaintiff against the defendants, demands were stale within the rules whereby the deed was declared fraud-governing courts of equity, so that the vient and void as to the plaintiff, Mrs. parties themselves could not forego the Niles, and her judgment. The deed was length of time. If the debt was bona set aside, and the judgment declared a fide, the debtor could waive his defense lien upon the premises prior to the con- of the length of time, and the conveyveyance to defendant Hotchkiss. The ance founded thercon was not frauducourt held, and decided, as questions of lent and void. fact, that the defendant Stewart, for a long time prior and up to within a few days of the recovery of judgment, was the owner and in possession of real estate covered by the deed, subject to a Judgment reversed. |