Page images


9. Nor is it essential to show that as a punishment for an unexcused

the loss or injury is irremediable neglect of duty before the issuing and hopeless. (Id.)

of the writ, and which rendered

the application therefor necessary; 10. After the granting of an order it does not fix and limit the fine

fining B., a receiver, the amount which may be imposed for a vioof a lien upon the fund in his lation of the writ. (Id.) hands, because of willful disobedience of an order requiring 14. The provision of the Revised him to pay such lien, and direct Statutes, in relation to contempts ing his imprisonment until he paid (2 R. S., 534, sec. 1, sub. 3), which it, an order was granted forbid provides for the punishment as ding K., the receiver of a savings for a contempt of "disobedience bank, in which bank B. had de to any lawful order, decree or posited a portion of the fund, process of a court of record,” from paying over to B. any part embraces disobedience of a perof said fund so deposited by him, emptory mandamus; the writ is and directing K. to pay ali divi to be regarded as an order of the dends thereon to T. the lienor: court, within the meaning of the

Held, that the order should be statute. (Id.) modified by inserting a clause that all moneys paid by K. to T. should 15. In imposing a fine for such a be applied in reduction of the fine disobedience, the court may inimposed upon B., and that B. up clude as an expense a fair comon showing any sum in the hands

pensation to the relator's attorney of K. as such receiver belonging for his services in the proceed. to the fund and payable to B. may ings. (Id.) have that sum applied to the reduction of his fine. (Id.)

CONTRACT. 11. An order refusing to punish an alleged contempt in disobeying an

1. A contract is to be governed by injunction is not appealable to this

the laws of the place where it is court. (Simmonds agt. Simmons,

made, if it is not, by its terms, to 612.)

be performed elsewhere; but if, by its terms, it is to be performed

in a state other than that in which 12. On appeal from an order adjudg.

it is made, the law of the state in ing the appellant guilty of con

which it is to be performed must tempt in not obeying a peremptory writ of mandamus, the question

govern (Affirming S. C., 13 Hun,

405; see S. C., 53 How., 40). (Dickas to the propriety of the order

inson agt. Edwards, ante, 24.) granting the writ is not presented and cannot be considered. (Peo. ex rel. Garbutt agt. Roch. and S. L. 2. This is the general rule of con

struction. The exceptions to it R. R. Co., 76 N. Y., 294.)

stated. (Id.) 13. It seems, that the penalty pre- 3. The case of Jewell agt. Wright (30

scribed by the Revised Statutes N. Y., 259) approved, and the (2 R. S., 587, sec. 60), when a per cases of Borren agt. Bradley (9 emptory mandamus shall be di Abb. Pr. [N. S.), 395) and Wayne rected to any public officer, body County Sarings Bank agt. Lou (6 or board, requiring them to per Abb. N. C., 76). disapproved. (Id.) form a public duty, where it shall appear that such officer, or any 4. Where a contract was made bemember of the body or board has, tween one G. and the city

of New without just excuse, refused to York for regulating, &c., Eleventh perform the duty, was intended avenue, and there was inserted

75 N. Y.,



in the contract a provision that offered to refer, and under a stiputhe contractor should satisfy all lation of the parties the same was liens for work or materials, filed referred, the plaintiff recovering with the commissioner of public only $674, there being no proof of works before or within ten days bad faith or mismanagement on after the completion of the work, the part of the executors: otherwise the city should be enti Held, that plaintiff was not entitled to retain from any money due tled to recover costs against the the said contractor a sufficient executors, and that her rights were amount to satisfy such claims limited to the referee's and wituntil the liabilities aforesaid shall ness fees, and other necessary disbe fully discharged, or such no bursements, to be taxed according tice withdrawn; the plaintiff to law. (Pursell agt. Fry, ante, claims all the funds by assign 317.) ment of moneys due and to grow due; the defendants R. and B. 2. A non-resident need not furnish claim portions by equitable assign security for costs if he begins suit ments or orders, other defendants in a justice court or municipal claim by liens under the contract: court, although such security could

Held, that those lienors who filed be compelled if suit was their claims in accordance with menced in courts of record, but the terms of the contract are enti not when an appeal is taken to tled to be paid in the order in the county court. (Mellen agt. which the claims were filed, and Hutchins, ante, 349.) the plaintiffs and such defendants as claim by assignment are not 3. In an action against two defendentitled to any interest in the

ants to set aside a sale made by funds in the hands of the city

one to the other on the ground of until such liens are satisfied. (Me

inadequacy of consideration, and chanics and Traders' National

that there was fraud in the sale, Bank agt. The Mayor, ante, 207.)

where the defendants appeared by

separate attorneys and were suc5. The plaintiff, as the assignee of

cessful, they are each entitled to G., took the contract subject to

tax separate bills of costs. (Milliall the equities existing between

gan agt. Robinson and Roof, ante, him and parties doing work and

380.) furnishing materials under the contract, or which, under the 4. Proceedings under chapter 804, terms of the contract, lienors

Laws 1868, for the recovery of might enforce against him. (Id.)

surplus moneys arising upon See New YORK (CITY OF).

mortgage foreclosures by adver

tisement are special statutory proKelly agt. Devlin, ante, 487.

ceedings. (Matter of Gibbs, ante, 502.)

[blocks in formation]


lowed, they must be at the rate allowed in proceedings for the recovery of surplus moneys arising upon foreclosures by action, i. e., necessary disbursements and motion costs. (Id.)

7. In an action for the construction

of a will, the costs are in the discretion of the court. (Leonard et

al. agt. Davenport, ante, 384.) .8. The reversal, upon appeal by the

common pleas general term, of a judgment rendered against a defendant by a district court of the city of New York for an amount of damages exceeding fifty dollars, entitles such defendant to ten dollars extra costs as part of the costs of the district court. (Boyd agt. Disbrou, ante, 399.)

for services rendered in attending upon their testator (the plaintiff's father) and his wife, amounting to $1,551.50, claiming wages at the rate of three dollars per week. On December 9, 1878, the defendants rejected the claim and consented to a reference, upon which the plaintiff recovered $674, the referee fixing the wages at two dollars per week. The referee also found that the defendant acted with prudence and in good faith in resisting the payment of the plaintiff's claim:

Held, that an order awarding costs to the plaintiff was erroneous and should be reversed. (Pur. sell agt. Fry, 19 Hun, 595.)

:9. Ellert agt. Kelly (4 E. D. Smith

12) explained. (Id.)

10. It seems that the statute permit

ting a plaintiff to prosecute as a poor person is not intended to apply to non-residents, but was solely for the benefit of residents of the state. (Christian agt. Gouge

and another, ante, 445.) See PRACTICE. Board of Supervisors agt. Bristol,

ante, 3.

13. After an action had been tried,

and a verdict rendered for the plaintiff, and before entry of judgment, it was discovered that the judge was disqualified, being one of the executors of an estate holding stock in the defendant corporation. The action was retried before another judge, and the plaintiff again recovered a verdict:

Held, that the plaintiff was entitled to tax costs for two trials. (Cregin agt. Brooklyn Crosstoron R. R. Co., 19 Hun, 349.)


Welch agt. Preston et al., ante, 53. See REFEREES.

Fischer agt. Raab et al., ante, 221.

11. On an appeal taken under sub

division 2 of section 349 of the Code, from an order overruling a demurrer, the successful party is entitled to tax as costs, under subdivision 5 of section 307 of the Code, twenty dollars before and forty dollars for argument. (Wright agt. Flemming, i8 Hun, 360.)

14. Where a defendant, in an action

in a justice's court, procures a discontinuance thereof upon the ground that the accounts of the parties at issue exceed $400, and plaintiff thereupon brings an action in the supreme court and recovers less than fifty dollars, de. fendant is estopped from claiming that the justice had jurisdiction, and so that he is entitled to costs; the plaintiff has a right to repose upon the decision of the justice, and it is not open for defendant, in answer to plaintiff's claim for costs, to say that such decision was erroneous; having availed himself of it he cannot question it. (Bradner agt. Howard, 75 N. Y., 417.)

12. October 24, 1878, the plaintiff

presented to the defendants a claim



15. An assignment of a cause of ac the last day of December, 1878,

tion, made simply as collateral to by reason of the disability of age an indebtedness of the assignor to prescribed by the constitution: the assignee, is not such a transfer Held, that a county judge was as makes the assignee liable for properly elected at the general costs under the provision of the election held in November, 1878, Code (old Code, sec. 321), declaring and that there was on January 1, that when, after the commence 1879, no vacancy in that office ment of an action, the cause of which could be filled by the gov. action by assignment or otherwise

(People ex rel. Joyce agt. becomes the property of a person Brundage, 18 Hun, 291.) nol a party to the action, such person shall be liable for costs; it | 2. When a special proceeding is is not a transfer of the absolute pending before a county court, property within the meaning of the county judge whereof is dissaid provision. (Peck agt. Yorks, qualified from acting, he cannot 75 N. Y., 421.)

make an order directing it to be

continued before a justice of the 16. Where there has been a series of supreme court, but should make

orders connected with the same and file with the county clerk a matter so that if one is erroneous certificate of the fact of his disall are, upon appeal from one the qualification. general term is authorized to re A proceeding pending in the verse the whole, so as to leave the county court cannot be continued records of the court clear and before a justice of the supreme consistent The general term, court, but must be removed into however, in such case, can only the supreme court. (Matter of grant costs of one motion, and on Village of Rhinebeck, 19 Hun, 346.) appeal from one order. (Stanton agt. King, 76 N. Y., 585.)

COUNTY TREASURER. 17. Where, in an equity action, there

are two defendants, not joined in See WITNESS. interest, who appear by separate Matter of Proceedings against Dickattorneys, put in separate an inson, ante, 260. swers, and both succeed, it is in the discretion of the court to allow costs to each defendant. (Hau

COVENANT. selt agt. Vilmar, 76 N. Y., 630.)

See GRANTOR AND GRANTEE. 18. In proceedings by certiorari Fleischauer agt. Doellner, ante,

to review assessment made by 190. board of commissioners of taxes and assessments for city and See ASSIGNMENT. county of New York, when board Boyd agt. Belmont, ante, 513. is successful cost properly allowed._(See People ex rel. agt. See PLEADING. M. F. Ins. Co., 76 N. Y., 64.)

Woolley agt. Newcombe, ante, 480.



1. A county judge, elected in 1873, 1. This action was brought by the

filed a certificate with the secre plaintiff against the defendant, tary of state, stating that he was individually, and as executrix of then sixty-five years old, and that J. A. Mead, deceased, upon an his official term would expire on indebtedness of the deceased, con


sisting of two notes and a judg. 5. Quære, as to the power to sell ment, amounting in all to $1.500. land under an execution, issued The complaint alleged the ap upon a judgment after the lapse pointment of the defendant as of ten years from the time of its executrix July 2, 1877, and that docket. (Id.) she was sole legatee; that the only assets of the estate were about $500 worth of personal property,

CRIMINAL LAW. and land in Wisconsin, worth about $1,500; that shortly before 1. If a jury are convinced of the his death the testator had assigned, without consideration, a policy

intentional falsity of evidence and

such willful perjury, committed of insurance upon his life to the

for the purpose of deceiving and defendant, who had collected it; that defendant had filed no inven

misleading them, has destroyed

their confidence in the truthfultory of his estate and was about

ness of the man and of his whole to leave the state and take the

story, it is their legal duty then to assets of the estate with her:

reject his entire testimony as provHeld, that the action could not

ing nothing. (The People agt. be sustained as a creditor's bill, as

Moett, ante, 467.) the plaintiff had not exhausted its remedy at law. (Genesee River 2. Where, on a trial for murder, the Nat. Bank agt. Mead, 18 Hun,

prisoner had been a witness in his 303.)

own behalf and was the only per

son who gave 'direct evidence of 2. That, upon the facts stated in

the incidents of the transaction the complaint, the defendant could

from having witnessed them, and not be arrested under subdivision

the judge in charging the jury in 4 of section 550 of the Code of

regard to the evidence of the Civil Procedure (the substitute for a writ of no exeat). (Id.)

prisoner, among other things said: "And there is another thing in

law which is just as clear and that 3. That the complaint did not state is, when a party in a civil action

facts sufficient to constitute a deliberately swears false to one macause of action, and that the terial part of his testimony, and plaintiff might move at any time the jury are satisfied that he has after service of the complaint to so sworn falsely, intentionally false, vacate an order of arrest granted they are not only at liberty to rein the action upon affidavits con ject it, but it sometimes is the duty taining the same allegations as of the jury to reject the whole. the complaint.

The maxim is falsus in uno, falsus That such motion might be in omnibus." To this portion of made more than twenty days after the charge there was an exception: the order of arrest was served. Held, that this exception did (Id.)

not present a plausible ground of

Where a witness commits 4. A simple contract creditor can perjury in a part of his evidence

not maintain an action to set aside the whole should be rejected, be as fraudulent a conveyance made cause the corrupt motive and purby his debtor; nor will such an pose then manifested must destroy action lie by a judgment creditor all faith in the man. (Id.) where more than ten years have elapsed since the docketing of the 3. When any doubt exists as to judgment, and no new lien upon whether the witness has commit. the land has been acquired by the ted perjury in giving the evidence levy of an execution thercon. which is to be considered, it must (Ecans agt. Hill, 18 Hun, 464.) be for the jury to decide whether,

el ror.

« PreviousContinue »