MONDAY JULY 3, 1876.

[No. 21.

a new

NEW YORK WEEKLY DIGEST. Cause why le should not be punisher!

as for contempt for disobeying both Vol. 2.)

these orders. SUPPLEMENTARY PROCEED An order was made on the return of INGS. CONTEMPT.

this or 'er holding that defendant was N. Y. SUPREME COURT. GEN. TERM.

in contempt for disobeying the first

order, and that the issuing of the sec FOURTH DEPARTMENT.

ond order did not operate as a waiver Lewis Gaylord, respt. v.


or abandonment of the first order. Jones, applt.

Risley & Stoddard, for applt. Decided April, 1876.

Richardson & Adams, for respt. A second order of same nature in sup

Irell, When on the 31st of Novemplementary proceedings supersedes the first, and for disobeying first ber, 1876, after the defendant had aporiler party cannot be punished as peared befcre the referee appointed by for a contempt.

the County Judge and objected by A judgment was recovered against his counsel to the proceedings, and rethe defendant and appellant and an ex. fused to be examined under the order eention issued thereon returned unsat- of the 9th of November on the grounds istied.

then specified, the plaintiff

' did immeAn order in supplementary proceed- diately and on the same day, on ings was made and served by the and original affidavit, apply to the same sheriff, and he made his certificate there- judge, who granted the former order of of. The certificate was not sworn to, the 9th of November, and obtained a and he certifies to having served a sum- new order requiring the defendant to mons and complaint, and he did not appear and be examined before a refshow the signature of the judge to the erre therein named, on the 11th of defendant.

December ther after, the said order of The defendant appeared under the the 9th of November and all proceedorder, and the proceedings were there- ings under the same should be considerupon adjourned till November 21, when ed as entirely abandoned and discon. defendant again appeared. On the first tinued. day of the hearing, and after the ob The plaintift could not have two ordjections above had been made, the ers to the same effect running and in plaintiff made another affidavit, and ob- force at the same time, and the defend. tained a second order for the defendant ant couid not be held to obey both ordto appear before the same referee and ers. be examined on the 11th of December, The second order superseded the and this order was also served on de first, and it was therefore irregular affendant. Defendant appeared on that terwards to proceed to punish the de. order before the referee but was in- fendant as for a contempt in not subformed that plaintiff had been there, mitting to an examination under said had stayed a few minutes and had then order of the 4th of November. But as left.

the order to show cause and the proSubsequent to this the same judge ceedings for the contempt were under made an order for defendant to show both orders nominally, the defendant

might properly be held to obey the Lawton & Stebbins, for applt. order of the 21st of November, the Win. Lounsberry, for respt. examination under the same having neld, Under Sections 2 and 3 of been suspended by the proceedings in Laws of 1854, chap. 402, that whera bankruptcy.

work is done or materials furnished on The order appealed from, so far as it the credit of the contractor, the owner adjudges the defendant in conteinpt is not obliged to pay any greater sum and imposes a fine upon him, should than he agreed to pay the contractor theretore be reversed, and so far as it nor more than was unpaid at the time directs him to appear before a referee of filing the lien. to be examined and answer on oath If the contractor had no right of acconce ning his property, should be af- tion, the mechanic had none, unless firmed, and the said defendant be re- there was collusion between the owner quired to appear before such referee and contractor. The defendant lias at such time and place as shall be fixed never refused to deliver the lime nor for that purpose by the County Judge, las he ever been requested to. He has making the said supplemental order not then been made liable to pay without costs of appeal to either party. money in its stead. 13 Johns. 56; 3 Opinion by E. D. Smith, J.

N. Y. 88.

Before the contractor proceeds to MECHANICS' LIEN.

foreclose he should have taken care “to N. Y. SUPREME Court. GENERAL TERM. be able to prove the inability” of the THIRD DEPARTMENT.

defendant to deliver the lime, or to put

him in default by demanding it. Miner v. Langan.

Dowdney v. McCullum, 59 N. Y. 367. Decided May, 1876.

And the sub-contractor is in no better Under a mechanic's lien the owner is not

position. obliged to pay any greater sum than

Judgment reversed with costs, and a he agreed to pay the contractor nor more than was unpaid at the time of new trial granted, costs to abide the filing, the lien; Betore foreclosure event. the claimant should be able to show

Opinion by Learned, P. J.; Bocke the inability of the owner to perform and Boardman, J. J., concurring. his promise or put him in default by demanding performance. Action to foreclose a lien of a sub


N. Y. SUPREME COURT. GENERAL TERM. The owner had made contracts with

FIRST DEPARTMENT. the contractor, and payment under Albert Goettman respt. v. The Maythem was to be made partly in money or, &c., of New York, applt. and partly in lime. The money had Decided December 2, 1875. been paid. The lime had not been New York City District Courts are paid or demanded.

not parts of the municipal governThe owner testified he had always been ment, and their officers are not includready to deliver the lime. The plain

ed in the restrictive ciause of the city

charter, (sec. 114). tiff' hal a verdict. The owner appeals.

Appeal from judgment recovere I on

demurer to the answer of defendant.! under the municipal government of the

Plaintiffsues to recover salary as in- city, which the charter provides should terpreter of the 6th Judicial District be vacated by the acceptance of anCourt of New York City for the month other civil cftice. of January, 1875.

Judgment affirmed. Defendants by answer set up, that Opinion by Daniels, J.; Davis, P. during said month plaintiff held the po- J., concurring; Brady, J., concurring sition of inspector of elections, to which on the ground that the position of ilhe had been appointed, and that by spector being compulsory and but for such appointment he had forfeited or a short tine, the charter evident?y did vacated the position of interpreter, in not inte:ad to include within its restric accordance with sec. 111 of the city tion offices which, by the law, the apcharter; which provides that any person pointee is compelled to accept. who, holding oflice by election or appointment sha!), during the terın of said

PRACTICE. vilice accept o retain any civil office of

N. Y. COURT OF A TEALS. honer, trust, or emolu'nent under the

Godfrey, applt. v. Moser respt. United States, of the State, a seat in the legislature, or other office of the

Decided May 23, 1876. City of New York, sha!l be deemed Where the judgment is entrred upon thereby to have vacated every cffice held

the report of a referce and the Gen

cral Term has a right to reviow the by him under the city government.

fucts, it is its duty to pass upon them To the answer plaintiff demurred as from the evidence. constituting no desence.

This action was brouglit to recover Roscoe H. Channing, for respt. $4,939.50 for services rendered by D. J. Dean, for applt.

plaintiff as attorney for defendant. On appeal.

The case was tried before a referee Held, That plaintiff, though proper- The General Term reversed the judy.

who reported in favor of the plaintiff. ly an oficer, was not a municipal officer, but of the court in which his services ment, certifying that t?e order of re.

versal was made upon questions of fact were to be rendered, which court was

as well as law. not a part of the chartered government of the city, nor included in either of its

Joseph R. Flanders and John A. departments, as they were created and Godfrey, for applt. detined by law at the ting of plaintiff's

Wm. Fullerton, for respt. appointment, (Laws of 1877, chap. 385, lleld, That this court occupied the 45+, 491, § 21).

saime position as the General Term as The court was one of the district to the facts as well as to the law. courts of the city, provided for and or

That the rule that where there is any ganized under other laws of the State, conflicting evidence to sustain a linding, especially enacted for the purpose.

it is error in the General Term to reIn a general sense they became a verse the judgment, is not applicable in part of the local gover.ment, but not any case where that court has a right to of that created for mere municipal pur- review the facts. When such review is poscs. And it was only offices held proper it is the duty of the appellate

court to pass on the facts from the evi At the end and top of this structure, dence; and in this respect the duty is the defendant nailed a long strip, and different from what it is in reviewing put on the end of the stick an old hat a judgment entered upon the verdict ot and placed it so that it extended over a jury.

and on plaintiff's premises. Judgment absolute against plaintiff Defendant was also in the habit of on stipulation.

dumping his ashes and slops close up Per curiam opinion.

to plaintiff's well, which had the effect on an imaginative person of rendering

the water rather a disagreeable beverPRACTICE.NONSUIT.


Baldwin & Maire, for applt.

D. B. Keeler, for respt.

lleld, We think the county judge Jolin Shubert, applt. v. Urban Shu

erred in directing a non-suit upon the bert, respt.

plaintiff's opening. Decided April, 1876.

The decision must be deemed to covTo order a non suit on the opening of a er the whole opening of the plaintiff's case the court must be satisfied that the counsel stated no cause of action case by his counsel

, and it must be held

that he stated no cause of action in in his opening, providing same wus fully proved.

such opening, providing the same was Olstructions. Rule as to.

fully proved. Appeal from judgmert in County

The judge was right so far as relates Court of Onondaya county.

to the erection of the fence. A man Plaintiff and defendant own adjoin-has a right to make any erections he ing premises in Syracuse, N. Y. pleases on his own land, and to extend

Four years ago the defendant, then such erection upwards as high as the owning the premises now owned by act of man can build, provided he does both parties, conveyed by full covenant not infringe any rights in respect to air deed the house and premises to plain- and light or otherwise attached to the tiff' which he has ever since owned and adjoining land by grant or prescription. occupied.

But he has not a right to extend any All this time defendant has owned part of such erections, or anything maand occupied a large vacant lot adjoin-terial attached thereto, over the soil of ing the plaintiff's premises on the east, of the adjacent owner. in the same condition as when the con In this case the plaintiff stated in his veyance was made to the plaintiff. A opening that the defendant placed on low line fence has always separated his fence a long stick extending from these lots, which was and is located the top over into the plaintiff's yard, about three feet from plaintiff's house. and upon the end of the stick he nailed

In the spring of 1875, defendant an old slouch hat which made a fine erected on the line, three feet from scare crow, &c. plaintiff's house, but on his own land, a This was a clear invasion of the plainhigh fence, which obstructed plaintiff's tift's lot and premises, and a clear tresview, and was about 10 feet high, pass, for which the plaintiff was enti

tled to maintain tho action and recover vive (Annie M. Miller) it shall go to her. such damages as a jury should think

“ John E. Rorer.” proper to impose for such a species of

Louisa M. Anshutz, the wife of John injury. The judgment should be reversed, Miller and Annie M. Miller, the test

P. Anshutz, was the daughter of Jolin and a new trial granted with costs to ator's sister, and still survived. abide the event.

All the devisees ramed in the will Opinion by E. Darwin Smith, J.

joined in an agreement with the defend

ant to sell the lands in question to him CONSTRUCTION OF WILL.

ir fee simple, and give him a good, sut

ficient, and marketable title. TITLE.

Upon the tender of the deeds he reSUPREME COURT OF PENNSYLVANIA.

fused to accept them, upon the ground Anshutz v. Miller.

that the devisees could not convey a Decided February 25, 1876.

good and sufficient marketable title in Where an estate is given to a person de- fee simple to the land. scribed by relation, either to the test Upon these facts the court below enator or to other devisees, on a conting. tered judgment for the defendant; from ency, a person in being at the time which judgment plaintiff took this writ of making the will, to whom the description would apply on the happen- of error.

. ing of the contingency, is intended to It was claimed by defendant that the be the devisee.

provision of the will created a conting. Error to the District Court of Phila- ent remainder in favor of the person, delphia County.

yet unascertained, who should happen Case stated in nature of special ver- to be his wife when Anshutz dies. dict.

Ileld, That all the successive devisJohn E. Rorer died in 1870, seized ees, except the widow of Anshutz, were of the lands in question, having made indicated with individual distinctness. the following will:

There was no classification, and no di“PHILADELPHIA, Dec. 11, 1869. rections, as to them, that the gift should “ This is to certify this is my last be dependent upon any relations which will and testainent, that I do most re- they bore to the testator or to each other. spectfully submit that the children of Mrs. Anshutz was in full life when the William, James, or Albert Rorer shall will was made. Surviving her husband, have no share or portion in my estate; she would be his widow. Where an esand furthermore, I empower John P. tate is given to a person described by Anshutz to settle my said estate; and relation, either to the testator or to I bequeath to the said John P. An- other devisees, on a contingency that shutz all my right and title to my in- may or may not happen, and a percome from said estate, as long as he son is in being at the time of the shall live, and after his death his wid-execution of the will, to whom, on the ow is entitled to said income; after her h ppening of the contingency, the dedeath it shall be distributed to Annie scription would apply, it is a safe gene. M. Miller, daughter of John Miller, ral rule to hold such person as intended and should the wife of John Miller sur-to be the devisee. It is the manifest

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