ADMISSION Agency-not proven by the declarations of the agent.
See DUFFUS v. SCHWINGER
ALTERATION OF INSTRUMENTS-Blanks left in a note-implied
authority to fill in the same-extent of such authority. - presumption that a
transaction was varied without consent · material change in a note.
See FARMERS' NAT. BANK . THOMAS...
Parol authority to fill in the consideration in a mortgage — insertion of
too large a sum.
ANIMAL- Trespass by animals-proof of negligence—the injury must be
the natural and probable consequence of the act.
See HOLLENBECK v. JOHNSON..
Trespass by cattle- liability therefor.
See PHILLIPS v. COVELL.
APPEAL — Children called as witnesses — discretion of trial court as to, not
interfered with on appeal.] 1. The law fixes no precise age within which
children are excluded as witnesses. Their competency depends upon their
intelligence, judgment, understanding and ability to comprehend the nature
and effect of an oath. If a witness is over the age of fourteen years the
law presumes him to possess the requisite discretion and understanding,
and, if under that age, the duty devolved upon the trial court (prior to
the enactment of chapter 279 of the Laws of 1892), in the exercise of a
sound discretion, of determining whether the witness had the requisite
capacity and intelligence to comprehend the nature and effect of an oath,
and such discretion will not be interfered with upon appeal, except upon a
clear showing of its abuse. PEOPLE . LINZEY
2. When an appeal is founded on an error of fact, when determined upon
affidavits.] Where an appeal is founded upon an error in fact, not appearing
upon the record and not within the knowledge of the trial justice, the
appellate court may determine the matter upon affidavits, but where the
error charged is within the knowledge of the justice having reference to his
own conduct pending the deliberation of the jury, the facts with reference
thereto should be incorporated in his return. The affidavit of the justice
in regard to such facts, attached to his return, may be considered upon
appeal as a part of the return. Id.
3. ·Communications with a jury during its deliberations.] After the
jury on the trial of a criminal action had retired to consider its verdict, the
justice before whom the case was tried entered the jury room during the
deliberations of the jury upon such case, at the request of the officer in
charge, supposing that a verdict had been agreed upon, and upon learning,
immediately after entering, that no agreement had been reached, he told the
jurymen that he had no right to be there without the attorney, and turned to
leave the room, when one of the jurymen asked with what crime the defend-
ant was charged, and the justice answered " petit larceny."
Held, that the verdict of guilty rendered by the jury, and the judgment
entered thereon, must be set aside; that it was not incumbent upon the
appellant to show that he was prejudiced by the action of the justice in order
to entitle him to a new trial. Id.
4. A finding of fact not excepted to will not be reviewed on appeal.]
When no exception was taken to the report of a referee to whom a claim
was referred under the statute, in regard to a finding therein that the claim
of the plaintiff was greater than that presented by her to the executors, such
matter will not be considered upon an appeal from the judgment rendered
in such action, and the order confirming the referee's report and denying
the defendant's motion for a new trial. BRAYMAN v. STEPHENS.
5. Direction of a verdict.] Upon the review of a judgment, entered
upon the verdict of a jury directed by the court, that view of the evidence
must be taken which is most favorable to the party against whom the verdict
was directed. PETRIE v. STARK.
6. Case on appeal-no certificate that it contains all the evidence.]
Where, in a case on appeal, there is no certificate that the case contains all
the evidence given upon the trial, the General Term is not called upon to
review the evidence or the findings of fact made by the trial court.
Judgment enjoining the operation of an elevated railroad unless certain
damages were paid and a conveyance taken — modified on appeal so as to allow
condemnation proceedings to be taken.
See MCKEE v. N. Y. ELEVATED R. R. Co. (No. 1)....
Decree admitting a will to probate — when not reversed for error in the
rejection of evidence.
See MATTER OF TORKINGTON....
Incompetent testimony — when it does not justify a reversal in a crimi-
Order made under section 870 et seq. of the Code of Civil Procedure with-
out notice, not appealable.
See KELLY v. JAY.............
See MCCREADY v. FARMERS' L. & T. Co
If an error appears in the record the remedy is by appeal.
AQUEDUCT COMMISSION - Temporary annoyance to an owner of real
estate caused by building on an adjoining lot
aqueduct commissioners not the agents of the city of New York.
See LESTER v. MAYOR, ETC.
ARREST - Execution against the person — escape · the attorney is without
power to allow a discharge — defense to the sheriff for an escape — plaintiff not
responsible for the form of return to an execution. second execution may be
Illegality or fraud in bringing the accused before the court - not a
defense on a criminal trial — against whom in civil actions.
See PEOPLE v. EBERSPACHER
Warrant of enticement of a non-resident within the jurisdiction of the
court-service of papers upon him set aside.
ASSESSMENTS- For municipal works.
See MUNICIPAL CORPORATIONS.
ASSIGNMENT - Right of a failing debtor to prefer creditors—action to set
aside transfers of property by a debtor.
ASSOCIATION - Purchaser of promissory notes of a corporation — when in
no better position than the payees, its directors - misapplication of the reserve
fund of a mutual benefit association.
Directors of a corporation charged with its debts under section 8 of chapter
For insurance.
See INSURANCE.
For mutual aid.
See INSURANCE.
ASYLUM-Order granted under section 3 of chapter 438 of 1884-may be
made ex parte may be vacated on notice.] 1. It is within the power of the
Supreme Court to grant an order ex parte, pursuant to the provisions of sec-
tion 3 of chapter 438 of the Laws of 1884, which requires the authorities of the
Buffalo Orphan Asylum to give to the mother of a child a complete extract
from its records concerning such child, and it is not improper for the court,
after granting such order, to make a second order upon the application of
such asylum, requiring the person on whose petition the prior order was
granted to show cause why such order should not be vacated, and upon the
return of the order to show cause to vacate such prior order, with leave to
the petitioner to renew her application upon notice to such asylum.
2. Notice of hearing thereon may be directed.] While it is the duty of
the court, under the provisions of section 3 of chapter 438 of the Laws of
1884, to entertain an application made thereunder, it is within its power to
direct such hearing as it shall deem suitable and reasonable before making a
final order therein. Id.
ATTACHMENT-Lien of attachments—priority of executions- sufficiency of
affidavits used to obtain an order for.] 1. Where the affidavits used by certain
of the creditors of an absconding debtor to obtain warrants of attachment
(although they state that the debtor departed from the State of New York
with intent to defraud his creditors and to avoid the service of the summons
upon him) fail to state any facts tending to sustain such charge, they are
insufficient to sustain the attachments against a motion to vacate them. But
where no such motion is made, and the money is paid to such creditors upon
their judgments and the executions issued thereunder in the actions wherein
the attachments were granted, in discharge of their liens, the question of the
insufficiency of the affidavits is not, as against such attaching creditors, avail-
able to other creditors of the common debtor in an action brought to ascertain
and determine the rights of the attaching creditors.
Where the summons in such an action is served by publication, the affidavit
upon which the order for publication was obtained must comply with the
statute in order to give the court jurisdiction. If the affiant does not com-
ply with the statutory requirements the order of publication and the judg-
ment will be void, and the plaintiffs will acquire no rights under or through
mesne or final process issued thereunder.
So far as process which comes to the hands of the sheriff is regular on its
face, he is justified in executing it. VAN CAMP 2. SEARLE......
2. Error in the form of an execution.] General executions provided for
by section 1369 of the Code of Civil Procedure were issued to a sheriff upon
judgments recovered against an absconding debtor and were paid by the
sheriff, and thereafter the amounts were refunded to such sheriff by the par-
ties receiving the same, and special executions, in accordance with the pro-
visions of section 1370 of the Code of Civil Procedure, were issued to him,
upon which he paid respectively the amounts of such executions—the
former executions being irregular and the latter regular upon their face for
the purpose of payment from the proceeds of attached property.
Held, that the error was cured by the refunding of the money, the issuing
of executions in proper form and the satisfaction of them, although, the
term of his office having expired, the sheriff had ceased to be such at the
time the second executions were issued to him;
That the proceeds, applicable to the discharge by payment of the liens of
the attachments, might be deemed to have been held by the sheriff for that
purpose until paid in satisfaction of the second executions issued to him. Id.
3. Error in recital.] It was recited in an attachment that it appeared
by affidavit "that the said defendant has absconded from the county of
Orleans, the place of his residence, with intent to defraud his creditors."
The affidavit upon which the attachment was issued stated the ground for
the application to be that said debtor had departed from the State where
he resided with intent to defraud his creditors, and certain facts were
therein mentioned in support of such allegation.
Held, that although the recital of the attachment was not a sufficient
ground for the issuance of such process, yet that, the attachment being sup-
ported by the allegation in the affidavit, the incomplete recital in the process
was not fatal to its validity. Id.
Form of execution under an attachment.] The provisions of section
1370 of the Code of Civil Procedure apply to an execution issued upon a
judgment recovered in an action in which an attachment is issued and levied
and the summons is not personally served. An execution in such an action
issued in the form prescribed by section 1369 of the Code of Civil Procedure
is void. Id.
Notice or certificate of sale.] It is not required by statute that the
execution upon which a sale of real property is made must be specified
in the notice or certificate of sale.
The purpose of the levy of an attachment upon real property is to create a
lien as of that time and such is its effect. Id.
6. Priority of liens.] A judgment recovered in an action wherein an
attachment has been issued, for the purpose of the execution of such judg-
ment relates to the time when the attachment was levied, and when the
property is sold by the sheriff upon an execution issued on a judgment
which was a prior lien to that of the attachment, the lien of the attachment
is available in its relative order, upon the proceeds of the sale for the pur-
pose of satisfying the judgment of the attaching creditor, or so much of it
as the fund applicable to its payment will satisfy.
As to personal property, the execution first delivered to the sheriff is
the first lien, although a levy is first made thereon by virtue of an execu-
tion subsequently delivered to him, but, to constitute the levy of an attach-
ment upon real estate, it is necessary that the sheriff file with the clerk of
the county in which the real property is situated a notice of the attach-
ment, stating the names of the parties to the action, the amount of the plain-
tiff's claim, as stated in the process, and a description of the property levied
upon, which notice must be also subscribed by the plaintiff's attorney. Id.
7. - Levy of an attachment necessary.] The levy of an attachment is
essential to make it available as a lien, or to create by it security for the pay-
ment of the judgment which may follow. Id.
8. Duty of the sheriff as to making a levy.] It is the duty of the
sheriff to whom an attachment is delivered to levy it upon the property, real
and personal, of the defendant, and, if there be more than one attachment,
to levy them in the order in which they are received by him. If he neglects
to levy such process he may be liable to the plaintiff for the consequence
of his failure to do so. Id.
9. Order of preference of attachments.] The execution of the lien of
an attachment is contingent upon the recovery of a judgment in the action
in which the attachment was issued, and, as an actual levy is necessary to
create the lien of an attachment upon property, when several attachments
are levied upon the same real property, the order of preference or priority
would be the same, and founded upon the like reason as that applicable to
the levy of attachments on personal property. Id.
10. Attorney's services — equitable assignment.] Where a firm of attor-
neys has rendered services and paid out money in an action (which resulted
in a judgment in favor of their client), and in other actions relating to the
subject-matter of the first action (such services and disbursements equaling
in value the amount of the judgment), such attorneys may be regarded as
the equitable assignees of the judgment, and they have the right to satisfy
their lien by process of execution. Id.
11. When attachments will be granted against an executor.] The plain-
tiff, in an action brought to compel an accounting by an executor, is not enti-
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