NEW YORK WEEKLY DIGEST. VOL. 2.] MONDAY JULY 3, 1876. [No. 21. SUPPLEMENTARY PROCEED INGS. CONTEMPT. N. Y. SUPREME COURT. GEN. TERM. Lewis Gaylord, respt. v. Richard Decided April, 1876. cause why he should not be punished as for contempt for disobeying both these orders. An order was made on the return of this order holding that defendant was in contempt for disobeying the first order, and that the issuing of the sec ond order did not operate as a waiver or abandonment of the first order. Risley & Stoddard, for applt. Richardson & Adams, for respt. Held, When on the 31st of Novem A second order of same nature in supplementary proceedings supersedes the first, and for disobeying first ber, 1876, after the defendant had aporder party cannot be punished as for a contempt. A judgment was recovered against the defendant and appellant and an execution issued thereon returned unsatisfied. An order in supplementary proceedings was made and served by the sheriff, and he made his certificate there of. peared before the referee appointed by the County Judge and objected by his counsel to the proceedings, and refused to be examined under the order. of the 9th of November ou the grounds. then specified, the plaintiff did immediately and on the same day, on a new and original affidavit, apply to the same judge, who granted the former order 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 eree therein named, on the 11th of defendant. December thereafter, 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 discondefendant again appeared. On the first tinued. day of the hearing, and after the objections above had been made, the plaintiff made another affidavit, and obtained a second order for the defendant to appear before the same referee and be examined on the 11th of December, and this order was also served on de fendant. Defendant appeared on that order before the referee but was informed that plaintiff had been there, had stayed a few minutes and had then left. The plaintiff could not have two orders to the same effect running and in force at the same time, and the defendant could not be held to obey both orders. The second order superseded the first, and it was th refore irregular afterwards to proceed to punish the defendant as for a contempt in not submitting to an examination under said order of the 9th of November. But as the order to show cause and the pro Subsequent 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 order of the 21st of November, the examination under the same having been suspended by the proceedings in bankruptcy. The order appealed from, so far as it adjudges the defendant in contempt and imposes a fine upon him, should therefore be reversed, and so far as it directs him to appear before a referee to be examined and answer on oath conce ning his property, should be affirmed, and the said defendant be required to appear before such referee at such time and place as shall be fixed for that purpose by the County Judge, making the said supplemental order without costs of appeal to either party. Opinion by E. D. Smith, J. MECHANICS' LIEN. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPARTMENT. Miner v. Langan. Decided May, 1876. Under a mechanic's lien the owner is not obliged to pay any greater sum than he agreed to pay the contractor nor more than was unpaid at the time of filing the lien. Before foreclosure the claimant should be able to show the inability of the owner to perform his promise or put him in default by demanding performance. Action to foreclose a lien of a subcontractor. The owner had made contracts with the contractor, and payment under them was to be made partly in money and partly in lime. The money had been paid. The lime had not been paid or demanded. The owner testified he had always been ready to deliver the lime. The plaintiff had a verdict. The owner appeals. Lawton & Stebbins, for applt. Held, Under sections 2 and 3 of Laws of 1854, chap. 402, that where work is done or materials furnished on the credit of the contractor, the owner is not obliged to pay any greater sum than he agreed to pay the contractor nor more than was unpaid at the time of filing the lien. If the contractor had no right of action, the mechanic had none, unless there was collusion between the owner and contractor. The defendant has never refused to deliver the lime nor has he ever been requested to. He has not then been made liable to pay money in its stead. 13 Johns. 56; 3 demurrer to the answer of defendant. Plaintiff sues to recover salary as interpreter of the 6th Judicial District Court of New York City for the month of January, 1875. under the municipal government of the city, which the charter provides should be vacated by the acceptance of another civil cffice. 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 inhe had been appointed, and that by spector being compulsory and but for such appointment he had forfeited or a short time, the charter evidently did vacated the position of interpreter, in not intend to include within its restric accordance with sec. 114 of the city tion offices which, by the law, the apcharter; which provides that any person pointee is compelled to accept. who, holding office by election or appointment shall, during the term of said office accept or retain any civil office of honer, trust, or emolument under the United States, of the State, a seat in the legislature, or other office of the City of New York, shall be deemed thereby to have vacated every office held by him under the city government. To the answer plaintiff demurred as constituting no defence. Roscoe H. Channing, for respt. On appeal. PRACTICE. N. Y. COURT OF APPEALS. Where the judgment is entered upon This action was brought to recover $4,939.50 for services rendered by plaintiff as attorney for defendant. ment, certifying that the order of reversal was made upon questions of fact as well as law. The case was tried before a referee Held, That plaintiff, though proper-The General Term reversed the judg. who reported in favor of the plaintiff. ly an officer, was not a municipal officer, but of the court in which his services were to be rendered, which court was not a part of the chartered government of the city, nor included in either of its departments, as they were created and defined by law at the time of plaintiff's appointment, (Laws of 187, chap. 385, 484, 491, § 2). The court was one of the district courts of the city, provided for and organized under other laws of the State, especially enacted for the purpose. In a general sense they became a part of the local government, but not of that created for mere municipal purposes. And it was only offices held Joseph R. Flanders and John A. Godfrey, for applt. Wm. Fullerton, for respt. Held, That this court occupied the same position as the General Term as to the facts as well as to the law. That the rule that where there is any conflicting evidence to sustain a finding, it is error in the General Term to reverse the judgment, is not applicable in any case where that court has a right to review the facts. When such review is proper it is the duty of the appellate court to pass on the facts from the evidence; and in this respect the duty is different from what it is in reviewing a judgment entered upon the verdict of a jury. Judgment absolute against plaintiff on stipulation. Per curiam opinion. PRACTICE. NONSUIT. OBSTRUCTIONS. N. Y. SUPREME COURT. GEN'L TERM, John Shubert, applt. v. Urban Shubert, respt. Decided April, 1876. To order a non suit on the opening of a case the court must be satisfied that the counsel stated no cause of action in his opening, providing same was fully proved. Obstructions. Rule as to. Appeal from judgment in County Four years ago the defendant, then owning the premises now owned by both parties, conveyed by full covenant deed the house and premises to plaintiff which he has ever since owned and occupied. At the end and top of this structure, the defendant nailed a long strip, and put on the end of the stick an old hat and placed it so that it extended over and on plaintiff's premises. Defendant was also in the habit of dumping his ashes and slops close up to plaintiff's well, which had the effect on an imaginative person of rendering the water rather a disagreeable bever age. Baldwin & Haire, for applt. Held, We think the county judge erred in directing a non-suit upon the plaintiff's opening. The decision must be deemed to cover the whole opening of the plaintiff's case by his counsel, and it must be held that he stated no cause of action in such opening, providing the same was fully proved. The judge was right so far as relates to the erection of the fence. A man has a right to make any erections he pleases on his own land, and to extend such erection upwards as high as the act of man can build, provided he does not infringe any rights in respect to air and light or otherwise attached to the adjoining land by grant or prescription. 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 cast, 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 fiue erected on the line, three feet from scare crow, &c. plaintiff's house, but on his own land, a high fence, which obstructed plaintiff's view, and was about 10 feet high. This was a clear invasion of the plaintiff's lot and premises, and a clear trespass, for which the plaintiff was enti "JOHN E. RORER." tled to maintain the action and recover vive (Annie M. Miller) it shall go to her. such damages as a jury should think proper to impose for such a species of injury. The judgment should be reversed, and a new trial granted with costs to abide the event. Opinion by E. Darwin Smith, J. CONSTRUCTION OF WILL. TITLE. SUPREME COURT OF PENNSYLVANIA. Decided February 25, 1876. Louisa M. Anshutz, the wife of John P. Anshutz, was the daughter of John Miller and Annie M. Miller, the testator's sister, and still survived. All the devisees named in the will joined in an agreement with the defendant to sell the lands in question to him ir fee simple, and give him a good, sutficient, and marketable title. Upon the tender of the deeds he refused to accept them, upon the ground that the devisees could not convey a good and sufficient marketable title in fee simple to the land. Upon these facts the court below entered judgment for the defendant; from which judgment plaintiff took this writ of error. It was claimed by defendant that the 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. John E. Rorer died in 1870, seized of the lands in question, having made the following will: Held, That all the successive devisees, except the widow of Anshutz, were indicated with individual distinctness. 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 testament, 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 geneM. 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 |