ACCOUNTING.

1. The complaint herein alleged that
plaintiff J. acquired title to certain
premises subject to a mortgage,
as devisee under the will of N.,
who died in 1880, which will was
admitted to probate in February,
1880; that in May, 1880, defend-
ant B., who then owned the mort-
gage, brought an action to fore-
close it, fraudulently omitting to
make J. a party, and by perjury
obtained an adjudication that
there was due thereon $5,869.87,
when in fact there was only about
$1,000 unpaid; that the purchaser
on the foreclosure sale fraudulently
executed a mortgage on the prem-
ises to defendant G., which was
foreclosed without making J. a
party, and the premises bid off
and conveyed to C., the attorney
of record for G. in that action; that
several of the defendants who were
named, including G.. collected
rents exceeding the amounts due
on both mortgages. Judgment
was demanded that the pretended
mortgage to G. be canceled and
stricken from the records; that de-
fendants account for the rents and
profits received by either of them;
that plaintiffs be at liberty to re-
deem upon payment of whatever
was found due, etc. Defendant G.
demurred on the ground that two
causes of action were improperly
united, and that as against her, it
did not state facts sufficient to con-
stitute a cause of action. Held,
untenable; that but one cause of
action was stated, and that suffi-
cient facts were stated to entitle
plaintiffs, as against G., to an
accounting. Johnson v. Golder,
116

2. In an action to set aside a general
assignment as fraudulent and for
an accounting, actual fraud as
against creditors of the assignor,
both on his part and that of the

assignee, was proved and found
The interlocutory judgment ad-
judged the assignment void, ap-
pointed a receiver and required
defendant to deliver to him all of
the assigned property, and to pay
over all the income, profits, etc.,
received therefrom "less any law-
ful disbursements made or in-
curred by said assignee." The
assignor had been engaged in a
manufacturing business. On the
accounting the referee allowed the
assignee the amount paid by him
to the workmen in the factory,
who were preferred, for work done
prior to the assignment, and the
additional value given to the stock
by working it after the assign-
ment, but refused to allow ex-
penditures incurred by the assignee
for appraising stock, payment for
legal services, rent of factory,
labor, etc. Held, no error; that
the provision in the judgment did
not extend the right to credits for
disbursements beyond those which
would be treated as lawful with-
out its aid; and that as the dis-
bursements SO made were in
furtherance of the fraudulent
scheme, and by virtue of power
dependent upon title or right of
possession, they were unlawful.
Smith v. Wise.
172

3. The assignment preferred certain

notes made by the assignor and in-
dorsed by a firm, of which the as-
signee was a member; these notes
were paid by the assignee before
the commencement of the action.
Held, that while the assignee was
to be treated as never having had
title, and, therefore, as against
creditors, no rights dependent
upon title were available to him,
as the payment of the notes was
made by direction of the assignor
when he was at liberty to make it,
and when the direction was opera-
tive, the assignee was entitled to
be allowed the sum paid. Id.

By various statutes in relation to the
city of Albany, it is made lawful
for the common council “to make
by-laws and inflict reasonable pen-
alties to enforce the same, for regu-
lating and keeping in repair the
docks and slips within the city,
and to prevent the same and the
river opposite thereto from being
in any manner obstructed" (§ 19,
chap. 153, Laws of 1801), and that
body is constituted and declared
commissioners of highways with
power to pass ordinances, among
other things, "to prevent all ob-
structions in the river near or op-
posite" the city wharves or docks.
( 15, chap. 185, Laws of 1826.)
The common council of the city
passed an ordinance declaring that
whenever any vessel is sunk at any
dock or anywhere in the Hudson
river opposite the city, it shall be
the duty of the street commis-
sioner, under the direction of the
mayor, to give notice to the owner
to remove it, and if the notice is
not complied with, making it law-
ful for that officer to take posses-
sion of the vessel, remove and sell

1.

it, etc. Plaintiff's complaint al-
leged in substance that he was the
owner of a dock in that city; that a
loaded canal boat sank at the dock,
obstructing its use; that a written
notice thereof was served on the
mayor, who gave written direc-
tions to the street commissioner to
remove it; that officer notified the
owner, but declined to remove it
himself, or to do anything more in
the matter, whereupon plaintiff
caused the boat to be removed.
Plaintiff asked to recover the ex-
penses of such removal and his
damages. Upon demurrer to the
complaint, held, that assuming
said statutory provisions were not
repealed by the amended charter
of 1883 (Chap. 298, Laws of 1883),
which in prescribing the powers
to pass ordinances, omits all men.
tion of the river opposite the city,
the complaint failed to state a
cause of action; that as no duty
in reference to the matter was im-
posed upon the city by the statute,
no liability existed: (1) As by the
said charter of 1883 (§ 44, tit. 3) it
is provided that the city shall not
be liable for a failure to enforce
any ordinance; (2) As the statutes
prescribe that the city shall pro-
vide for the enforcement of its
ordinances by fines and penalties,
and so, that portion of said ordi-
nance which authorized the sale of
the vessel, or its loading, thus
creating a forfeiture, was invalid.
Coonley v. City of Albany. 145

ALIENS.

Under the provision of the act of
1874 (Chap. 261, Laws of 1874),
amending the act of 1845 (Chap.
115, Laws of 1845), in reference
to aliens taking and holding lands
in this state, which provides that
if an alien resident, or a natural-
ized or native citizen, "has died
or shall hereafter die" holding a
conveyance of lands in the state.
purchased by such person, and
"leaving persons who would
answer the description of heirs,"
such persons, whether citizens or
aliens, may take and hold the lands
as heirs, etc., the state surrendered
its title to lands acquired by es
cheat previous to the passage of
the act, of which it had not before

that time assumed in any manner
to make disposition, where the
person to whose title the state so
succeeded, died leaving alien heirs.
Wainwright v. Low.
313

2. S. died in 1871, intestate, seized of
certain real estate; she left the
plaintiff, an alien, her only heir at
law. By an act passed in 1876
(Chap. 184, Laws of 1876), the
state released its right and interest
in the lands to A., the husband of
S., with the proviso, however, that
nothing therein contained should
"affect the right in said real estate
of any heir at law." Before the
passage of the act of 1874, no pro-
ceeding for escheat had been taken
by the state. The trustee having
died, upon petition of A., a new
trustee was appointed by the court,
with directions to convey the prem-
ises to A., which was done. In an
action of ejectment, defendant
claimed title under said convey-
ance to A. Held, that upon the
passage of said act of 1874, the
title vested in plaintiff, which title
was not affected by the act of 1876;
that, therefore, A. acquired and
conveyed no title or interest by his
deed; and that judgment was prop-
erly directed for plaintiff.

AMENDMENT.

Id.

1. By an ante-nuptial agreement, S.,
in contemplation of the marriage,
conveyed to a trustee certain lands,
the trustee to pay to her the rents
and profits, or at her election to
permit her to hold and use the
lands during her life, and upon her
death to convey them as she by
deed, appointment or will," should
order, direct or appoint." S. re-
tained possession of the premises
until her death. Held, that the
ante-nuptial conveyance did not
create a trust within the meaning
of the Statute of Uses and Trusts
(1 R. S. 728, § 55), as the power of │

2.

S. died in 1871, intestate and
without having executed an ap-
pointment or deed as prescribed in
the ante-nuptial agreement. She
left the plaintiff, an alien, her only
heir at law. By an act passed in
1876 (Chap. 184, Laws of 1876), the
state released its right and interest
in the lands to A., the husband of
S., with the proviso, however, that
nothing therein contained should
"affect the right in said real estate
of any heir at law." Before the
passage of the act of 1874, no pro-
ceeding for escheat had been taken
by the state. The trustee having
died, upon petition of A. a new
trustee was appointed by the court,
with directions to convey the prem-
ises to A., which was done. In an
action of ejectment, defendant
claimed title under said convey-
ance to A. Held, that upon the
passage of said act of 1874, the
title vested in plaintiff, which title
was not affected by the act of
1876; that, therefore, A. acquired
and conveyed no title or interest
by his deed; and that judgment
was properly directed for plaintiff.
Id.

APPEAL.