2.

Where the board unreasonably delay action on a complaint the complainant is entitled to a mandamus directing them to proceed. Id.

3. The duty of the board is not satisfied by an examination of the witnesses on both sides. The statute requires that after hearing all the testimony it shall be considered by the board and a decision rendered by a vote of the commissioners whether the accused person has or has not violated any of the provisions of the act. Id.

4. Relator's affidavit alleged that respondents unreasonably delayed, neglected and refused to decide or take action on deponent's complaint. Respondents did not deny this, but denied that they are unwilling or had refused to revoke the license as alleged, and alleged that they are entirely willing to decide the matter. Held, that the charge made was admitted (by failure to specifically deny), and that a peremptory writ was properly granted. Id.

EXECUTION.

1. Where the complaint in an action for money had and received fails to specifically state that the money was received in a fiduciary capacity, a provision in the judgment authorizing the issue of execution against the person of defendant is erroneous, even though the complaint and evidence suffice to establish the fact that the money was received in such capacity. Moffat v. Fulton (Sup. Ct.), 154.

2. On August 11, 1875, plaintiff recovered a judgment by default against all the defendants. On motion for leave to issue execution an order was made August 11, 1885, granting leave as of September 13, 1884, the day for which the motion had been noticed, unless the impleaded defendant answered. This she did. The cause was tried in June, 1888, and plaintiff amended his complaint by alleging that the impleaded defendant was a married woman and had in writing charged her separate estate with the debt in suit. Plaintiff recovered judgment and the same was entered in September, 1888. On this judgment execution was returned unsatisfied. In June, 1889, plaintiff moved for leave to issue execution on the judgment of August 11, 1875, and at special term leave was granted to issue execution thereon as of September 13, 1884. Held, error. In any view, the ten years lien of the judgment upon land had expired before June, 1889, and other rights may have intervened, and further, the court has no power to revive a lien when once extinguished. Leave granted to plaintiff to issue execution upon the judgment of August 11, 1875, but as of the present time. Hansee v. Fiero (Sup. Ct.), 360.

EXECUTORS AND ADMINISTRATORS.

1. In appointing a temporary administrator of an estate the surrogate is not limited in making his selection to persons ordinarily entitled to administer, but in his discretion may appoint a person in no wise connected with the decedent or his estate as relative or creditor. Any person possessing the capacity and qualifications to serve as an executor may be appointed. Matter of Plath (Sup. Ct.), 101.

2. Frederick D. Hodgman left a will, under which letters testamentary were issued February 13, 1874, to M. E. H., A. C. H., P. C. H., and J. C. The latter died in April, 1882, and left a will and executors. P. C. H. died August 27, 1888, and left a will, making A. R. H. his executor. In July, 1889, A. C. H., also a legatee, presented to the surrogate a petition that the other surviving executors of Hodgman, and the executors of the deceased executors of Hodgman, account. Thereupon M. E. H. presented a petition that A. C. H. and the executors of the deceased executors account as executors of Hodgman. The proceedings were consolidated, and all those interested were cited. The will of Hodgman, which was under seal, among other things, provided that $10,000 should be held until the death of A. M. Cobb (now living), and then to be paid to F. D. Cobb, if he survive her and arrive at twenty-one (his age did not appear); if not, to fall into the residuum. A legacy to his wife was to be paid as soon as convenient, and other legacies were to be paid when the estate was ready for settlement, and to abate if the funds were insufficient to pay in full. There was a residuary bequest. It appeared that some legacies had been paid; as to others there was no finding. Held, that as A. C. H. was both

executor and legatee, and as the estate was not settled, nor apparently ready for settlement, he was entitled to call to account the executor of P. C. H.; that the lapse of more than six years and eighteen months after the issue of letters to P. C. H. was not a bar to the proceeding, since before this latter period had run § 1810 of the Code of Civil Procedure took effect. This provided that in computing the time within which a legatee must sue, the cause of action is deemed to accrue when the executor's account is judicially settled. Matter of Hodgman (Sup. Ct.), 479.

3. It was not error for the surrogate to consolidate the proceedings where the rights of the parties were preserved. Id.

4. No harm was done by citing all the persons interested in the estate. Id. 5. Defendant was one of several executors, but took no active part in the management of the estate. She had knowledge of the neglect of the acting executors to make investments directed by the will to be made, and with such knowledge accepted her share of the estate, but took no steps to compel such investments to be made. Held, such a neglect of duty as to render her liable for the consequences, although she was otherwise not in fault. Cocks et al. v. Haviland (Sup. Ct.), 742.

6. An action by legatees to recover from such executor their share of the estate lost by such neglect of duty is one where the cause of action accrues at the settlement of such executor's account. Id.

7. In 1880 J. B. R. died seized of a leasehold, and by his will bequeathed it to his widow for life, remainder to his children. The lease ran out in 1889. The widow died in 1887. One of her sons, her administrator, thereafter collected the rents, supposing the leasehold to have been the absolute property of his mother at her decease. One of the daughters died in 1888 and plaintiff is her executor. Held, that the children were tenants in common; that so far as the administrator had held the leasehold his possession was not adverse; that plaintiff's testator was in constructive possession; that plaintiff was entitled, from the administrator, to an accounting for the rents collected after the widow's death in 1887, and up to the commencement of this action. That the fact that before the trial the leasehold had expired did not affect the right to rents accruing during the term of the lease. Walther v. Regnault et al. (Sup. Ct.). 766.

8. While a leasehold has been designated by statute as assets in the hands of an administrator, no provision has been made for its distribution or division in a surrogate's court; hence the present action is right and affords a proper method of division. Id.

9. A referee appointed on a final judicial settlement of executor's accounts when requested to make findings upon questions of fact, must do so. Section 1023 Code Civ. Pro. applies, and is mandatory. Matter of Mellen (Sup. Ct.), 770.

10. An executor, partner of the testator, had been indebted to the testator upon notes kept in a safe, to which, as claimed, the executor had access. The executor claimed that the testator had given him the notes. Those objecting claimed that the executor had cancelled the notes himself. In this state of the evidence, a witness for the executor was asked whether the executor knew the combination of the safe. This was excluded. Held, that within § 2545 of Code Civ. Pro. this was a material error. Id.

11. An ex parte application for leave to compromise a claim due to the estate will not be granted where no facts are stated beyond the existence and status of the debt and its nature and that one of the executors and the attorney in the suit believes the compromise to be advantageous. The same evidence should be produced as would be required to justify the compromise if attacked on an accounting. Matter of Richardson (Sur. Ct.), 957.

12. When the person named as executor in a will is the largest benefici ary under its provisions, and the main proponent, and is charged by contestants with having influenced the decedent and with having large unsettled transactions with the estate, and his relations with the other members of testator's family are of a very unfriendly character, his

appointment as temporary administrator pending a contest would not be proper. Matter of Stearns (Sur. Ct.), 960.

13. Where the statute had not barred a claim of the executor at the time of decedent's death, its running is suspended until the first judicial settlement of the executor's account and he is not precluded from proving the claim on such accounting. Matter of Macomber (Sur. Ct.), 962.

14. The executor is not called upon to prove nonpayment; but the burden of proving payment is upon the party alleging it. Id.

15. The amendment to § 2 of chapter 157, Laws 1842, by chapter 406, Laws 1889, only applies where real estate is left. Where a man dies leaving personal property only, the law is in precisely the same condition it was before the act of 1889 was passed. Matter of Koch (Sur. Ct.), 963.

16. If a debtor shortly before his death delivers in payment of his indebtedness his own check to the order of his creditor, who a few days after such death receives the money on the same from the bank without informing the bank of the death, the administratrix of such debtor cannot recover the sum so received by the creditor when the estate is not shown to be insolvent. McMurray v. Ennis (City Ct. B'klyn), 976.

See NEGLIGENCE, 19; VENDOR AND PURCHASER, 2; WILLS, 16.

FALSE IMPRISONMENT.

1. The mere fact that a party went before a magistrate and made a statement of what he regarded as constituting a criminal charge is not sufficient to make him liable for false imprisonment, in the absence of proof of malice, or that he made a false statement, or asked for a warrant or took part in its service. Nowak v. Waller et al. (Sup. Ct.), 458.

2. It is enough to protect the complainant and the constable that the justice held that the affidavit was sufficient to warrant its issuance. Id.

3. A magistrate who has jurisdiction of the subject-matter is not liable for false imprisonment for a mere mistake of judgment, such as failing to take an examination of the complainant and his witnesses and reducing the same to writing. Id.

4. A warrant is not invalid because of an error in its date. Id.

5. A party arrested cannot for his own convenience make a stipulation to appear at a future day and receive a parole and then complain that he was not immediately taken before a magistrate. Id.

6. A complaint alleged that the defendants, who were physicians, signed the certificate provided for by § 1, title 1, chap. 446, Laws of 1874, setting forth the insanity of plaintiff; that they did this falsely and maliciously and that the inquisition was false and fraudulent; that on the certificate plaintiff was confined for some time in the Hudson River Hospital. Held, that the gist of such an action was false imprisonment and that the action was barred in two years. Hurlehy v. Martine et al. (Sup. Ct.), 471.

See FRAUD.
FISHERIES.

1. Laws 1870, chap. 234, § 1, which reads that "no person shall catch or take any oysters, clams, mussels or shells in the waters of South Bay, in Suffolk county, with a dredge or drag," does not apply to persons taking their own oysters out of their private lots or beds in the waters of the bay in question. People v. Hazen (Ct. App.), 72.

2. To constitute a "private bed," the oysters must have been planted by the individual claiming them, or by those from whom he derives the right to take them; the place must have been in a bed clearly marked out and defined, and where there were no oysters growing spontaneously at the time. Id.

FORECLOSURE.

1. Certain premises were sold on foreclosure in April, 1881, the terms of sale providing that the taxes should be deducted from the purchase price. N. Y. STATE REP., VOL. XXXI. 130

The sale was confirmed in 1889 as of the date of May 4, 1881. In the meantime the taxes had been reduced under chap. 114, Laws 1853. Held, that the purchaser was entitled to a deduction of the taxes as they were at the time of sale and that it was error to allow only the reduced amount. Schell v. Elkins et al. (Sup. Ct.), 197.

2. A party in possession at the time of the commencement of an action of foreclosure is a proper party defendant, in the absence of any allegation or evidence that such party was in possession under some right or title superior to the mortgagor. Ruyter v. Reid (Ct. App.), 387.

See INJUNCTION, 5; RAILROADS, 13, 14.

FORGERY.

Defendant procured from complainant a diamond ring on the rep.esentation that he had a purchaser for it, and returned to him a contract for its purchase signed apparently by the purchaser and a surety, and paid twenty dollars on account. On the trial of an indictment for forgery, it appeared that the person whose name was signed to the contract did not purchase the ring and that the signatures were unauthorized, and defendant confessed that he made both signatures and gave the paper to complainant, and that he did it deliberately. The court charged that the question was whether defendant forged the paper with intent to defraud, and that he was entitled to the benefit of a reasonable doubt. Held, that a judgment convicting him of forgery in the second degree should not be interfered with. People v. Henries (Sup. Ct.), 720.

FRAUD.

1. Fraud may be inferred from a group of circumstances pointing clearly in that direction, although many links in the chain, considered separately, may well appear to have been wholly unobjectionable, where taken together they, as a whole, point unerringly to fraudulent purposes and acts. Abegg et al. v. Schwab et al. (Sup. Ct.), 139.

2. One S., on being required to make a statement on the purchase of goods, replied that he had made a statement to H., one of the firm, some months before, and was "better than ever." This was communicated to Sobel, the clerk in charge of the credit department, and he thereupon allowed the shipment to be made, relying partly on such statement and partly on the statement of a mercantile agency. In an action to repleven the goods on the ground that such sale was procured by false representations and with intent to defraud, Held, that testimony that Sobel relied in part upon the statements previously made to H. was properly admitted. Hahlo et al. v. Grant et al. (Sup. Ct.), 919.

3. In such action the fact that S. was subsequently asked to purchase goods from other merchants is immaterial, and evidence to show such fact was properly excluded.

Id.

4. The father of defendants, by his will, gave his widow a life estate in a large tract of land, with remainder to his five children, said defendants. After the widow's death, Rutherford and Oakley conveyed their interests to plaintiff's father for $1,000 each, a grossly inadequate price. The brother of defendants, who was also their father's executor, procured them to make the sale by false representations as to assessmer ts, concealment of a method for settling assessments, etc. He was a son-in-law of the grantee. Held, that the representations and concealments were such as a court of equity might properly characterize as fraudulent, for the purpose of rescission of a sale, cancellation of a conveyance and restoration of property transferred by it. Jones v. Jones et al. (Ct. App.), 940.

5. The transactions and interviews between the brother and sisters, except so far as related to the fact, time and act of negotiation, sale or convey ance, and such as in some manner related to it, were admissible only as bearing upon the relation of trast and confidence between the brother and sisters, and as tending to prove an abuse of such confidence in inducing them to sell their property. Id.

6

While the actual sale of certain property may be competent evidence on the question of its value, a mere effort or offer to sell or to buy at any par

ticular price, unless made by one who is a party to the litigation on the subject, is not legitimately entitled to any consideration upon the question of value. Id.

See BILLS AND NOTES, 1-3; INFANTS, 4; REPLEVIN, 1.

FRAUDULENT CONVEYANCE.

1. Where a person heavily indebted, shortly after a refusal to pay, makes a voluntary transfer of all his real estate to his wife and receives from her a general power of attorney, and execution issued on a judgment for the debt is returned unsatisfied within seven months after the transfer, the burden is upon the defendants in an action to set aside the deed, who are not purchasers for a valuable consideration, to show that the grantor was in a position to make it at the time of its delivery, and in the absence of explanation by them it is error to hold that the deed was not made to hinder, delay or defraud creditors. Emmerich v. Hefferan et al. (N. Y. Supr. Ct), 173.

2. Where one with intent to defraud creditors transferred to his son, for a sum already loaned thereon by a third party, shares of stock, and the loan was paid off and the shares delivered to the son, Held, that the latter could be held by judgment creditors of the firm to account only for the value of the shares beyond the amount of the loan, and could not be held for their full value. Hamilton Nat. Bank et al. v. Halst d (Sup. Ct.), 8.9. 3. Where one being insolvent transferred moneys to his son for his daughter, and the son afterwards loaned the moneys to the father's firm who preferred this debt in their assignment, Held, in an action attacking this preference and transaction, that, as the daughter was not a party, no determination of her rights was proper or could be made. Id.

HIGHWAYS.

1. When the commissioner of highways in proceedings to alter a highway delivers the order to the town clerk his duty is discharged, and the failure of the clerk to post a copy on the door of the house where the town meeting is usually held does not render the order absolutely void or justify resort to force, such as throwing down fences and entering upon the old road, to nullify its provisions. Engleman v. Longhorst et al, (Ct. App.), 29.

2. Neither is the order void by reason of the failure of a property owner, over whose premises both the old and the altered roads run and on whose petition it is altered, to execute and file a consent and a release of all claims to damages pursuant to 1 R. S., 515, § 64. Id.

3. There is nothing so universal or invariable in the manner in which streets in the city of New York have been opened as to raise a count r presumption to that of the common law, that owners of land adjoining a public highway are owners of the fee of the highway. Hochhalter v. Manhattan R. Co. et al. (Sup. Ct.), 112.

4. In an action against commissioners of highways for trespass in removing a fence erected in 1869, it appeared that the premises on which it stood had been used as a highway for forty years prior to that time. Held, that immediately upon the extension of the provisions of the Revised Statutes to the Long Island counties by chap. 6, Laws of 1865, the road became a public highway by operation of law; that the fence was an unlawful encroachment from the time of its erection, and could have been removed by appropriate legal proceedings; that chap. 245, Laws 1878, provided another means for the removal, which was adopted by defendants, and that the action could not be maintained. James v. Sammis et al. (Sup. Ct.), 192.

5. A private way, opened by the owners of land through which it passes, for their own use, does not become a public highway merely because the public are also permitted for many years to travel over it, where there is no proof that the public authorities kept it in repair, or adopted it, or in any way recognized it as a highway. Speir et al. v. Town of New Utrecht (Ct. App.), 414.