LANDLORD AND TENANT. N. Y. COURT OF APPEALS. Becar, respt. v. Fleres, exr., &c., applt. Decided April 5, 1876. A parol lease vests in the lessee a present interest in the premises from the time the lease is made. It is not an executory contract. fused to rescind, defendant still held the term and was liable for the rent. Judgment of general term, affirming judgment on verdict, affirmed. Opinion by Church, Ch. J. TRUST. DELIVERY TO N. Y. SUPREME COURT. GEN'L TERM. Lambert v Freeman, et al. This action was brought to recover rent claimed to be due. It appeared that defendant's testator, who had been in possession of certain premises under a written lease, in February or March, 1874, leased the premises by parol of plaintiff, by her son, for one year from the 1st of May thereafter. The testator died in April, 1874, and his family not desiring to retain the house, defendant notified plaintiff, and on the first of by R. to F., one of the defendants, in Where money of one is already in the han is of another, the owner may create a trust with regard to such money without further delivery to the holder, provided the trust is sufficiently proved. Action to recover moneys remitted 1863 and 1864, and which plaintiff' R. was deceased at the time of the May they abandoned possession of it and tendered the key, which was declined. It was proved by defendant that plaintiff might have rented the house trial. for nearly as much as defendant's testa-trators. On the trial it was decided on the evidence that R. created a trust in tor was to pay for it. R. A verdict was directed for plaintiff. F., for the benefit of the plaintiff, the Defendant claimed that between the income to be paid her for life, and that, making of the contract and the time for subject to the trust, the principal betaking possession, the contract was ex-longed to the heirs and next of kin of ecutory, and defendant having refused to perform it, plaintiff could only recover the actual damage, which within the general rule, plaintiff was bound to make as small as possible. All parties appealed from the judg ment. C. S. Lester, for plaintiff. John II. McFarland & Henry Smith, for defts. Leld, That the decision of the court below was correct, upon the facts. Edwin More for respt. Wm. W. Badger for applt. Held, That the contract was not executory; that the parol lease vested in After the plaintiff rests it is too late defendant's testator a present interest for the defendant to move to strike out in the term which was assignable before evidence. Where money of one is already entry, and upon which an action of in the hands of another, the owner may ejectment could have been brought it create a trust with regard to such monpossession had been withheld, 1 N. Y., ey, without further delivery to the 307; 8 id., 115; and when plaintiff re- holder, provided the trust is sufficiently upon at $10,050.23, the defendant then executed the bond in suit according to agreement of July 25, 1859, and dated back to that date. proved. The mere existence of the tember 17, 1859, the sums assumed by power to revoke or recall this trust, if the plaintiff and secured by the defendhe did not exercise it, does not prevent ant having been ascertained and agreed its validity. The defendant, F., should not, up to the judgment, be charged with interest at any greater rate than the donor tacitly consented that he should pay; as, although he had invested the money in his own business, it was done without objection on the part of the donor. Nor should he be charged with costs up to judgment. Judgment affirmed with costs. BOND AND MORTGAGE. Smith, respt. v. Smith, applt. An agreement made prior to the bond in A. Coburn for applt. Held, That the bond was prima facie evidence of the amount claimed to be due upon it, and the burden of proof was cast upon defendant to repel such presumption. That the agreement made and executed between these parties and Hungerford, July 25, previously to the actual giving of the said bond and mortgage, does not affect, in the slightest degree, the subsequent transactions between the parties, and the giving of said bond and mortgage on September 17; that Extra allowance of costs are in the dis- H. and the subsequent giving of the the transaction as to the agreement with eretion of the lower court. bond and mortgage were properly held This action was brought on a bond by the referee as two independent agreein the penal sum of $12,500 and condiments. tioned to pay the sum of $10,950, and also on two notes given by defendant to plaintiff. plaintiff an extra allowance of costs, of The court at special term allowed $500. The answer, as one of the defences, sets out an agreement between plaintiff allowance was a question particularly Held, That the question of an extra and defendant and one Hungerford, directed to the discretion of the court and bearing same date as said bond, by which H. agreed to assume and at special term, and this court should pay certain liabilities of defendant, and denot interfere except in a clear case where the discretion has been abused. fendant agreed to secure them separateJudgment affirmed. ly by a bond and mortgage of $5,000 to H., according to certain figures then Opinion by Smith, J. present, and by a bond and mortgage to plaintiff for an amount not then fixed, said papers to be executed and delivered and arrangements to be completed within 15 days from that date. BURGLARY. N. Y. COURT OF APPEALS. McCourt, plff in error v. The People, defendants in error. The answer then alleges that on Sep- Decided April 11, 1876. In order to convict of burglary a breaking and entering with a felonious intent must be shown. Samuel Iland for plff. in error. Held, That the conviction was erThe plaintiff in error was indicted roneous; that the evidence did not jusfor burglary and larceny, and sentenced tify an inference that the accused acted to state prison for two years. It ap- with a felonious intent; that there was peared that plaintiff in error, who was not only an absence of the usual indicia partially intoxicated at the time, in of a felonious taking, fraud, stratagem company with two other young men, or stealth, but all the circumstances drove up one morning between 8 and proved are consistent with the view 11 o'clock to the house of one C. where that the transaction was a trespass merehe had been in the habit of procuring cider. As the party drove up to the house one of them gave a call, and C., being away from home, his daughter came to the door. Plaintiff in error asked for some cider, said he would pay for it; the request was refused, and the girl told him they had none; that her father was away and they could not have any. ly. That in order to convict the accused it was necessary to prove that he broke into and entered the cellar with intent to steal the cider. Judgment of general term, affirming judgment of conviction, reversed. Opinion by Andrews, J. PRACTICE. The prisoner said he would have N. Y. SUPREME COURT. GENERAL TERM. some, and went down into the cellar of the house and broke a faucet of a cider barrel and got some cider in a pail, which was pulled from his hand by one of his companions and left in the cellar. The cellar had double outside doors about eighteen inches apart, one opening outwardly and the other inwardly, through which, the evidence slowed, the prisoner gained admission. By the breaking of the faucet a large quantity of cider leaked out, for which the prisoner and his companions after wards paid C. The people gave in evidence the declaration of the accused to the prosecutor a short time after the transaction upon the settlement of the civil damages, in answer to the inquiry what his object was in so conducting himself at the house, that he was rum crazy. The court was requested by the counsel for the accused to direct an acquittal, and refused. THIRD DEPARTMENT. Oliver Peake v. Calvin II. Bell. Decided May, 1876. A verdict cannot be set aside as against evidence where the defendant has not moved for non-suit nor asked the court to direct a verdict in his favor. Action for conversion. The jury found a verdict for the plaintiff. The verdict was set aside as against evidence. No motion was made by the defendant at the end of the plaintiff's case, or of the trial, for a non-suit ; nor was any motion made that the court direct a verdict for the defendant. A mction was made and denied that the court direct a verdict for the plaintiff. The plaintiff appeals from the order setting aside the verdict. Youmans & Niles, for applt. Held, That a failure to move for a non-suit, or to ask the court to direct a verdict for the defendant, is an admis sion that there is sufficient evidence to go to the jury, and that the de endant is thereby precluded from moving to set aside the verdict as against evidence. Order appealed from reversed with costs. Opinion by Learned, P. J.; Bockes & Boardman, J. J. concurring. WRIT OF NE EXEAT. N. Y. SUPREME COURT. GENERAL TERM, court, and will so leave unless restrained by order of this court. He is in the Havana trade, and can readily go there, and so avoid plaintiff altogether. The writ of ne exeat was signed by the justice, and the bail fixed at $2,000. The grounds upon which the motion. to vacate the writ was made were as follows: 1. The writ or paper by which the defendant was arrested was void, because it is not in form of an order enter Rose Viadero, respt., v. Manuel Via- ed in this action, and there is no order dero, applt. directing such writ to issue. Decided May 26, 1876. The practice with reference to the writ of ne exeat requires the special allow ance of the writ by an order of this court, and there should be an endorsement upon the writ by the clerk, showing the amount in which the defendant should be held to bail The liberal provisions of 173, 174, of the code, with reference to amend ment, applies to the writ of ne exeat. Appeal from order denying motion to set aside a writ of ne exeat. 2. It is not in form a writ of ne exeat; it is not issued by the clerk of the court, under his hand, nor is it subscribed by plaintiffs's attorney. The court can allow a writ of ne exeat, but the clerk of the court, not a justice thereof, issues the writ. 3. The allegations in the complaint are insufficient to sustain the writ. C. Burling, for respt. Geo. Bell, for applt. Held, As the plaintiff appears to The writ was allowed to issue upon have a meritorious cause of action, and the verified complaint in this action, she may be deprived of substantial rewhich has been brought for a divorce dress by dismissing the writ, that should because of the adultery of the defend-not be done if it can be consistently ant. The facts alleged are sufficient to sustained. And, that it may be, will constitute a good cause of action in appear from the inference which is warthe plaintiff's favor, and they are not ranted by the facts alleged. From the controverted. The facts set up in the business the defendant was engaged in complaint, verified as an affidavit, and his interest would appear to take him which were made the basis of the writ to Havana, in case of his leaving the of ne exeat, are as follows: That de- city of New York. And that he confendant told plaintiff he intended to templated leaving is shown by his stateleave the city, and he has so told many ment to that effect, made to of his friends; that he has no tie to this city or state, and from the abandonment of plaintiff, and the refusal of defendant to do anything for the support of plaintiff, she is satisfied he intends to leave the jurisdiction of this plaintiff. the The practice prior to the Code with reference to the writ of ne exeat still prevails, and that practice requires the special allowance and order of this court, together with an endorsement upon the writ, by the clerk, showing the amount in which the defendant should be held to bail, for the purpose of regularly issuing it. In that respect the preceding practice has been continued, and is still required to be observed. (2 Barb. Chy. Pr. 2 ed. 650-51; Code 469.) confirmation were the names of two members of said common council. Held, That that fact alone does not show that the Mayor thereby bribed said members to vote in favor of confirming the rest of the appointments. The appointees were confirmed by a single vote, and in gross. Held, the confirmation was valid. This practice was not formally pur-At the next meeting of the common sued as it should have been in issuing the writ in this case. But its important requisites were, which were the adjudication of a justice of this court upon the fact that the writ should be issued, and determining the amount of bail to be required to entitle the defendant to be set at liberty after his arrest. That the informalities of the writ, which have in no way prejudiced the defendant may be cured by amendment. ( 173, 174.) An order should therefore be made reversing the order appealed from, and setting aside the writ, unless within ten days after the decision of the appeal in in this case the plaintiff shall procure and cause to be entered nunc pro tunc, a formal order and allowance of the writ, and have the endorsement upon it of the amount of bail required by it from the defendant. And in case of a compliance with this direction, then the order appealed from should be affirmed without costs. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring. APPOINTMENT OF PUBLIC OFFICER. N. Y. SUPREME COURT. ALBANY SPE- council the Mayor sent in new appointments, in the place of the two members of the Common Council, who had in the meanwhile refused thenominations, and the board thereupon confirmed said new appointments, together with those acted upon at the previous meeting, with the exception of those refusing, by a single vote and in gross. Held, That the Common Council had not exhausted its power by the action taken at the previous meeting. By the charter of the city of Albany the street commissioner is appointed by the mayor and confirmed by the common council. He holds his office for two years, and until his successor has been "appointed and duly qualified." The respondent, James Allen, was so appointed in the year 1873, and now claims to continue in office because, as he alleges, his successor has not yet been appointed and duly qualified." The relator, Kilborn, clams the office thus: On April 17, 1876, the then mayor of the city, Mr. E. L. Judson, sent to the common council a communication in writing, by which he nominated several different officers, and upon that list of names was that of the relator, who was named for the office of street commissioner. Among the parties thus nominated by the Mayor were The People ex rel. James Kilbourn v. the names of Frederick Andes and James Allen. Decided May, 1876. In a list of appointments sent by a Peter C. Lauder, who were then Aldermen of the city, the former being desig nated for the position of Excise Commissioner, and the latter for that of City |