BRIDGES

-

- Continued.

PAGE.

Hd, that, as it appeared that the approach to the bridge was destroyed more
than twenty-four years ago, it might be fairly presumed that the public had
abandoned the purpose of rebuilding the bridge at that place, and that the
court should not, after this long and unexplained delay, attempt to put the
officers of the law in motion to require them to rebuild the bridge.

It seems, that the provisions of the said act are not applicable to the city of
Auburn, and that it was the intention of the legislature to exempt that munici-
pálity from all the general laws of the State relative to the laying out,
constructing and keeping in repair the highways and bridges within its
territorial limits. MATTER OF CERTAIN FREEHOLDERS.

Duty of towns to repair — burden of proof as to funds in the hands of
the commissioners-question for the jury.

See GETTY. TOWN OF HAMLIN

-

BROOKLYN — Elevated roads in Brooklyn must make compensation for
operating a road in streets taken under chapter 132 of 1835. ·
See METHODIST SOCIETY v. BROOKLYN R. R. Co.............

BURDEN OF PROOF:

See EVIDENCE.

CANALS-Flooding of lands, by direction of the legislature, for the purpose
of supplying water to the canals — when the necessary steps, essential to the acqui-
sition of the right so to do, will be assumed to have been taken.] 1. This action,
brought by the plaintiff, the owner of a farm on the west side of Owasco
lake, to recover damages alleged to have been caused by the erection of flush
boards or gates on a dam at the outlet of the lake was defended upon the
ground that the right to thus obstruct the flow of the water in the outlet
had been appropriated by the State for the purpose of supplying water to
the Erie canal, under acts of the legislature authorizing the canal commis-
sioners to appropriate to the State the dam then existing across the outlet,
with the right to increase its height, or otherwise raise the water above it to
such height as the commissioners should establish, and the right to draw
water therefrom under such regulations as might frem time to time be estab-
lished by the canal commissioners, and under other acts making appropriations
for the said work and for the building of a new dam, under which latter act
the present dam was constructed and supplied with flush gates.

Held, that while it was not proved that action had been taken by the canal
commissioners and drafts, plans or maps, etc., submitted to the canal board,
having particular reference to the provisions of these acts, yet, as it did appear
that the work proceeded and was consummated pursuant to subsequent
legislation, it would be assumed that the legislature was informed as to, and
had adopted that which had been done to effectuate what had been provided
for. WRIGHT v. ELDRED

2.

Section 185 of 1 Revised Statutes, 250, only applies to hydraulic corpo
rations who depend upon the canals for their supply of water.] The defend-
ant's authority to act in the matter was derived from a letter, written by the
assistant superintendent of public works, by the terms of which he was
authorized or requested to close the gates when the water lowered sufficiently,
and to open them temporarily when it should become necessary, the authority
so given him by the assistant being approved by the superintendent of public
works. The plaintiff claimed that the defendant was. by reason of the fact
that he was a director and the superintendent of the Auburn Water-works
Company, ineligible to the office under the provisions of section 185 of 1
Revised Statutes, 250, providing that no person owning any hydraulic works
dependent upon the canals for their supply, or who shall be employed in cr
connected with any such works, shall be employed as superintendent, lock-
keeper, collector of tolls, weighmaster or other agent upon the canals.

Held, that, as by the terms of the act conferring authority upon the State to
make the appropriation, it was made subject to the use of the water for
hydraulic purposes by the owners of such dam at the time of the appropria-
tion, as the same should from time to time be drawn from the dam, and as the
water-works company then had been and was taking its water from there, and
had continued to do so since, it was not dependent upon the canals" for their

"

620

530

12

CANALS- Continued.

supply of water, within the meaning of the section of the Revised Statutes
above cited, and that that section did not apply to the defendant or disqualify
him from acting. Id.

PAGE

3. When a discretionary power conferred upon the superintendent of
public works can be delegated to another.] Held, further, that the relation given
to the defendant by the letter of authority and assumed by him, did not
come within the rule which does not permit a person charged with official
duty or authority involving the exercise of judgment or discretion, or with
an agency of personal trust and confidence, to delegate it to another. Id.

CERTIORARI - Certiorari to review proceedings of referees on an appeal
from an order of a commissioner of highways-none of the proceedings, on the
application to the commissioner, are brought before the court.] 1. By the return
to a writ of certiorari, issued to review the proceedings of referees had on an
appeal from an order of a commissioner of highways refusing to alter a high-
way, it appeared that the referees met at a time and place appointed, and
after hearing the parties and deliberating together two of them united in a
decision reversing the order of the commissioner, in which the other referee
did not join. The relator sought to raise questions going to the jurisdiction
and regularity of the proceedings taken upon the application to the commis-
sioner, and anterior to his denial of the application.

Held, that none of the proceedings taken upon the application to the com-
missioner and preceding the appeal were brought before the court by the writ.
The relator claimed that, because it did not appear by the return that any
notice of the hearing before the referees was given to the occupants or owners
of the land through which the proposed altered line of the highway was
located, the determination must be deemed to have been made without juris-
diction. None of the evidence taken before the referees was contained in the
record before the court, except that the return stated some facts represented
by it, and it appeared that the evidence was "expunged from the return" by
stipulation.

Held, that, as the review was had solely on the return to the writ, the objec-
tion was not available to the relator upon the record.

Although it is a general rule that when inferior magistrates are required by
certiorari to return their proceedings, they must, in support of their determi-
nation, make their jurisdiction affirmatively appear, that rule does not neces-
sarily apply to a return which has been rendered imperfect or incomplete as
this one had been. PEOPLE EX REL. STOCKWELL v. TALMADGE....
603

2.

.....

The review is to be had on the return alone -- objections not based upon
facts appearing in the record cannot be considered.] The order appointing the
referees recited that the three referees therein named were disinterested free-
holders. The relator raised an objection to the eligibility of one of the refer-
ees, who certified for himself, in the return, that he was not a freeholder.
Held, that, as the only evidence upon the subject properly in the record was
the recital of the order of the county judge making the appointment, the
question was not legitimately within the record brought before the court and
could not be considered. Id.

CHARACTER - Proof of
See EVIDENCE.

CHARGE- Upon lands devised.
See WILL.
DEVISE.

CHATTEL MORTGAGE:

See MORTGAGE.

CHILD:

See INFANT.

CITY:

See MUNICIPAL CORPORATION.

CLASS-Legacy to the brothers and sisters of the testator - when they take
distributively as tenants in common and not as a class.

PAGE.

— a fine may be imposed though no injury

See PEOPLE EX REL. DUFFUS v. BROWN..

320

241-A county judge has no jurisdiction to make orders relating to the

care, custody and control of infants.

See PEOPLE EX REL. WILLIAMS v. COREY..

408

-

§ 410-Statute of limitations — it will not begin to run until the plaintiff
has actual knowledge of facts.

See THACHER. HOPE CEMETERY ASSOCIATION...

594

§ 522-Admissions in pleadings-evidence tending to contradict them
See GETTY v. TOWN OF HAMLIN....

is inadmissible.

--

§ 524-Verification of an answer by an agent of the defendant — when
it complies with the letter and form prescribed by this section of the Code of Civil
Procedure it must be received.

See BEYER v. WILSON.

...

§ 605— An order made by the governor, under chapter 322 of 1880 and
chapter 308 of 1882, directing a city to abate a nuisance, is not within the pro-
visions of this section of the Code of Civil Procedure.

§ 635-Attachment-it cannot be issued upon a judgment recovered in
another State, and not shown to have been recovered on a contract.

See GUTTA PERCHA Co. v. MAYOR..

1

397

§ 638-Attachment - the voluntary appearance of a defendant, after
the commencement of the publication of the summons, dispenses with the necessity
of continuing it to keep alive the attachment.

See TULLER v. BECK

SS 641, 644- Attachment — when an indebtedness of one foreign cor-
poration to another foreign corporation cannot be seized- the person or thing
attached must be within this State.

See STRAUS v. CHICAGO GLYCERINE Co......

-

§ 723- Power of a surrogate to amend a citation—the recitals in a
decree admitting a will to probate do not estop a party to it from petitioning to
have the decree reroked—an order denying a motion to dismiss a petition pre-
sented under section 2647 of the Code of Civil Procedure, that the probate be
revoked, is not appealable.

See MATTER OF SOULE ......

$788-Rule for computing the time within which acts must be done -
this section of the Code of Civil Procedure is not limited to actions in courts of

record.

See DORSEY v. PIKE.....

§ 829- Testimony of a mortgagor as to personal transactions with a
deceased mortgagee, inadmissible in favor of a judgment-creditor of the mortgagor.
See GEISSMANN . WOLF..

237

519

216

661

112

289

S834-Proof of the capacity of a testatrix to execute a will—when the
testimony of physicians signing the will at her request is admissible.
See MATTER OF FREEMAN..

458

ment does not violate this section of the Code.

$835- The admission of the testimony of an attorney as to his employ-

See HAMPTON v. BOYLAN..

151

SS 945, 947- To make a trnscript of a record of a bill of sale, recorded in a
collector's office, admissible in evidence, the certificate must state that the copy has
been compared by the person making the certificate, with the original, and that it
is a correct transcript therefrom and of the whole of the original.

See REDFIELD v. SNOW.

S1021-

...

Demurrera decision overruling it should direct with definite-
ness the terms of the judgment to be entered.

PAGE.

370

See U. S. LIFE INS. Co. v. JORDAN.............

201

§ 1166- A juror in an action to recover damages for an injury, incom-

petent by reason of bias towards an expert witness.

See LEWKE . DRY DOCK, ETC., R. R. Co.....

283

S$ 1390, 1391 - Words "being a householder or having a family for which he
provides" as used in these sections construed.

See CHAMBERLAIN v. DARROW..

48

§ 1391- Horse owned by a judgment debtor when it is exempt, as a
necessary team, under this section of the Code of Civil Procedure.

Sea KNAPP v. O'NEILL ..

§§ 1538, 1557, 1577 — An action for partition cannot be brought by a
tenant by the curtesy.

See REED v. REED.....

--

§ 1632 Foreclosure of a second mortgage · -a purchase by the mortgagee
does not destroy or release the lien of a prior mortgage held by him-
his subsequent conveyance of the right acquired by him on such purchase.
See CLEMENT v. GRISWOLD..

§ 1670-Lis pendens- a substituted service of a summons is equivalent
to a personal service under this section of the Code of Civil Procedure.
See FERRIS v. PLUMMER..

1819-Action by a general guardian to recover a legacy under this sec-
tion of the Code of Civil Procedure- the complaint need not allege the facts
required to exist to entitle a general guardian to receive a legacy on an account-
ing the allegations as to the plaintiff's guardianship in this case held to be
sufficient.

212

1948- Action in the nature of a quo warranto
may designate the county in which the action is to be tried.
See PEOPLE v. PLATT

§ 2077- A peremptory writ of mandamus not granted when an issue of
fact is raised by the return; an inferential denial is now permitted — when the
alternative writ is directed to a board and the individual members thereof, each
member may make a return - the failure of a board of police commissioners of
New York city to make an appointment of inspectors of election within the time
prescribed by the act (chap. 490 of 1887) does not deprive it of the power to there-
after make it, in the absence of any prohibition to do so.

See PEOPLE EX REL. MCMACKIN v. BOARD OF POLICE

§ 2269- A writ commanding an arrest may be directed to the sheriff of

a particular county, and generally to the sheriff of any county.
See PEOPLE EX REL. DUFFUS v. BROWN

Punishment for contempt in failing to obey a subpœna - a fine
may be imposed, though no injury was occasioned to the party.
See PEOPLE EX REL. DUFFUS 2. BROWN..

SS 2434, 2441, 2458 — Examination of a person indebted to a judgment
proceedings to compel his appearance must be instituted in the county

debtor
where the judgment debtor resides.

623

See MERRILL v. ALLIN

2481 Power to open or modify the decree of a Surrogate's Court,
entered on a final accounting by an executor under this section of the Code,
must be exercised with great care.

See MATTER OF O'NEILL......

500

CODE OF CIVIL PROCEDURE— Continued.

2647- An order denying a motion to dismiss a petition presented
under this section of the Code of Civil Procedure, that a probate of a will be
revoked, is not appealable.
See MATTER OF SOULE..

SS 2960, 2983 · Action in a Justice's Court · — no adjournment can be
had on the application of the plaintiff, except at the first return of the summons
or when a commission is issued upon his application.

See REDFIELD v. SNOW..

§ 3015-Action in a Justice's Court — when a verdict is rendered, judg-
ment must be entered forthwith by the justice - it is not sufficient that he
determine the amount of the costs and announce it to the successful party.
See PUTMAN v. VAN ALLEN....

PAGE.

SS 3144, 3146—— Constable — duty of, as to making a return of an
execution, when the justice issuing it leaves the county before the expiration of
the time to make it.

See HAMPTON v. BOYLAN.

§3239- Proceedings to review illegal and unequal assessments under
chapter 269 of 1880-costs on appeal are to be given or withheld in the discre-
tion of the court under this section of the Code.

See PEOPLE EX REL. WARREN v. CARTER..

§ 3240-Proceedings to acquire an easement in land to construct a

sewer, is a special proceeding.

See MATTER OF WELLS AVENUE SEWER..

SS 3268, 3269, 3271 – An order made without notice to compel a plaintif
suing an executor to give security for costs is irregular- General Rule of the
Supreme Court No. 37.

See SWIFT v. WHEELER.

§ 3320-Order fixing the commissions of a receiver under this section of
the Code of Civil Procedure, is reviewable on an appeal to the General Term-
costs and an extra allowance cannot be awarded until the action has been determ-
ined.

See HANOVER INS. Co. v. GERMANIA INS. Co....

[See sections of the Code of Civil Procedure cited, ante, in this volume.]
CODE OF CRIMINAL PROCEDURE-SS 278, 279, 323, sub. 3-
Indictment is demurrable if it charges more than one crime-1857, chap. 628,
S 13, 14-what is a sufficient judgment, under section 485 of the Code of
Criminal Procedure, stated.

See PEOPLE v. O'DONNELL....

§ 412-Commitment of a person charged with crime — when held to be
sufficient to justify his detention omission to administer the oath required by
this section of the Code of Criminal Procedure to a constable in charge of a jury,
permitted to view the place where the crime was committed, is merely an irregu-
larity.

See PEOPLE v. JOHNSON...

§ 485- What is a sufficient judgment under, stated.
See PEOPLE v. O'DONNELL...

[See sections of the Code of Criminal Procedure cited, ante, in this volume.]

COLLATERAL INHERITANCE TAX:

See TAXES.

COMMISSIONS

Order fixing the commissions of a receiver, under section
3320 of the Code of Civil Procedure, is reviewable on an appeal to the General
Term costs and an extra allowance cannot be awarded until the action has
been determined.

See HANOVER INS. Co. v. GERMANIA INS. Co.....

COMMITMENT - Warrant of.

See PROCESS.

661

370

492

151

444

534

580

308

358

667

358

308