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Digest.

14. Where the nominations were 3. A valid judgment in personam

acted upon separately by the board cannot be obtained against a nonof aldermen and the case of the resident of the state who is not relator was first considered and personally served with process disposed of by itself, confirming and does not appear in the action. his nomination but without any (Bartlett agt. Spicer, 75 N. Y., 528.) designation of the district which should be given to him:

4. A state cannot authorize such a Held, that although the proceed judgment, which will bind proping in this respect was not entirely erty not within the state at the regular, it was evidence of the time and not proceeded against in assent and approval of the board rem, in satisfaction of the claim. that he should receive one of the (Id.) vacant offices, and as the first woud naturally be considered and 5. Where one of the associates in a filled in the first instance, it may joint enterprise is a non-resident, be reasonably presumed that such he is not a necessary party to an was the intention and purpose of action brought by another of the the board, and that rendered the associates, for an accounting and relator's appointment as inspector for contribution for losses and exfor the first district effectual and penditures paid by him. (Angell lawful. (Id.)

agt. Lawton, 76 N. Y., 540.) 15. By section 25 of chapter 335 of 6. And, so, where a non-resident

the Laws of 1873, an inspector of associate has died, leaving no weights and measures can only be property in this state which would lawfully removed by the mayor

authorize the appointment of perafter affording him an opportunity sonal representatives here, and to be heard, and after that the re his personal representatives are moval cannot take effect without not within the jurisdiction of the the approval of the governor in court, they are not necessary parwriting. (Id.)

ties to the action. (Id.)
See POLICE COMMISSIONER.
The People ex rel. Nichols agt.

NOTICE,
Cooper, ante, 358.

1. An action cannot be maintained

upon an undertaking, given under NON-RESIDENTS.

section 348 of the old Code, upon

appeal to the general term, with1. A non-resident need not furnish out proof of service upon respond

security for costs if he begins suit ent, ten days before the comin a justice court or municipal mencement of the action, of a court, although such security written notice of the entry of the could be compelled if suit was order or judgment affirming the commenced in courts of record, judgment appealed from. (Rae but not when an appeal is taken agt. Beach, 76 N. Y., 164.) to the county court. (Mellen agt. Hutchins, ante, 349.)

2. In an action upon such an un

dertaking the only paper claimed 2. It seems that the statute permit to have been served was what pur

ting a plaintiff to prosecute as a ported to be a copy of an order poor person is not intended to ap made at general term, April 28, ply to non-residents, but was sole 1875, marked as received by rely for the benefit of residents of spondent's attorney, April twentythe state. (Christian agt. Gouge, ninth. There was no notice inand another, ante, 445.)

dorsed, and no intimation in or

Digest.

upon the paper that the same had show that at the time of entering been entered. The judgment roll, upon the contract plaintiff had which was produced on trial, con knowledge or notice of the real tained the original order; there facts. (Bennett agt. Buchan, 76 was nothing thereon to indicate N. Y., 386.) that it had been filed or entered, prior to the entry of the judgment, 7. The notice which will estop the which was on May 15, 1875: Held, that the presumption, in

party from claiming a breach of the absence of proof, was that the

a covenant, may be either actual

or constructive. Notice to the order was neither filed nor entered

agent who negotiated the contract until the judgment roll was filed

on his part is notice to him. (Id) and docketed, and that, therefore, the facts failed to show service of 8. If the agent acquires knowledge the required notice; and that the omission was not a mere irregu

of a fact while engaged in the

business of his principal which larity, but a vital defect, fatal to

should put him upon inquiry, and a recovery; also, that defendants

fails to institute the proper inqui. did not waive service of notice

ries by reason of forgetfulness, it by not pleading the failure to

is negligence, and the doctrine of serve; also, that they did not

constructive notice applies. (Id.) waive this defense by basing their refusal to pay, when called upon, 9. The possession which will constion other grounds. (Id.)

tute constructive notice of an un

recorded deed to a subsequent 3. Also, held, that an admission,

purchaser must be under the upon the part of the appellant in

deed, and actual, open and visthe original action, without the ible, so that the subsequent purknowledge or assent of the sure chaser could have gone upon the ties, to the effect that he had re

land and obtained by inquiry inceived the notice required, could

formation of such deed. (Page not affect the rights of the sureties. (Id.)

agt. Waring, 76 N. Y., 463.)

10. While every person is chargeable 4. As to whether the said section with notice of bankruptcy pro

did not require a notice of the ceedings legally and properly conentry of judgment, where judg ducted, such notice is only for the ment was in fact obtained; and as protection and efficacy of the proto whether the reference to orders ceedings. A party to a controwas intended to apply where a versy, who does not claim under, judgment not an order was ap and bases no right upon, said pealed from, quære. (Id.)

proceedings, cannot claim that the

opposite party is charged thereby 5. A notice of the entry of judg with any notice whatsoever. (ld.

ment, which is not indorsed or subscribed both with the name of 11. Such proceedings are in no case the attorney and his office address constructive notice of facts not or place of business, as required needful or proper to be stated or by the general rules of practice to appear therein. (Id.) (rule 2), is irregular and ineffectual to limit the time for appealing. 12. It is not necessary for the bank. (Kelly agt. Sheehan, 76 N. Y., 325.)

rupt to mal

any statement in his

schedules or otherwise as to prop6. A warranty does not extend to erty formerly owned by him, but

known defects; and in an action which he did not then own, and to recover for an alleged breach in which he had for a long time parol evidence is competent to ceased to have any interest. (Id.)

Digest.

*

13. There can therefore be no con- 3. The final order must be that which

structive notice of statements in ends the proceeding, and cannot the bankrupt's schedules as to be any of these, which must be such property. (Id.)

made during progress. (Id.) 14. The constructive notice which 4. Where a warrant of attachment

every one has, at common law, of having been granted against the proceeding in courts of record is property of the defendants as nononly of pending proceedings; residents, an order was obtained after judgment fixing the rights for the service of the summons by of the parties, no such notice is publication which was entitled, implied. (Id.)

*At special term of the supreme court of the state of New York,

held at chambers. Present, hon. OFFICIAL SEARCH.

ABRAHAM R. LAWRENCE, justice;

it recited: “ The plaintiffs having See REGISTER (OF NEW YORK).

presented to me the verified comVan Schaick agt. Sigel, ante, 211.

plaint in this action,
and having also made proof to my

satisfaction that said defendants ORDERS.

are not residents of this state;

it was signed “Enter. A. R. L., 1. A writ of certiorari should not be

J. S. C.” It did not appear that allowed before a final order is

the order had ever in fact been made. (Matter of Hamilton and

entered as a court order, but it Deane, ante, 290.)

was shown that the order was in

fact made and signed out of court, 2. The defendants are railroad com

in the judge's private room: missioners of the town of Cobles.

Held, that it was good as a chamkill, in the county of Schoharie,and

bers order of the judge, and a proceedings were taken against

service of the summons by public them under chapter 307 of the

cation in pursuance thereof was Laws of 1879, entitled An act to

effectual (Affirming S. C., 19, Hun, provide for the summary investi

116). (Phinney and others agt.

Broschet and others, ante, 492.) gation of unlawful or corrupt expenditures by officers of towns or incorporated villages, and for re- 5. The caption of the order and the straining the same. Objection

direction to enter are not conclus. was made to such proceeding on

ive as to its character, but the court the ground that they were not

will look at the facts as proved by town officers, and, therefore, not

the papers to exist to determine amenable to the provisions of said

its character. (Id.) act. This objection was overruled and they were directed to account: 6. Where an order had been made

Held, that the order directing for the service of the summons the investigation to proceed was by publication, which order was not a final order. The final order similar in all respects to that in to be made is one “restraining Phinney agt. Broschell (ante, 492), and prohibiting such unlawful or but it did not appear, as in that corrupt expenditure, appropria case, that the order had been made tion, squandering or waste of such in the judge's private chambers: moneys" (these which came into Held, that it was not void by their hands as officers of the town) reason of its having a caption and “under penalty, for disobedience, a direction to enter, but could be of fine or imprisonment, or both, treated as the order of a judge. in the discretion of the court. Held, also, that the order might (Id.)

be ame

mended, on motion, after it VOL. LVIII 78

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Digest.

had been acted up by striking apply the profits thereof to the out the superfluous portions. use of his children until the (Mojarietta et al agt. Saenz et al., youngest should become of age, ante, 494.)

and then to divide the same equally among them. After all

the children had come of age, the PARTIES.

plaintiff brought this action

against the defendants, as execu1. Where a deed of trust directs, in tors and trustees, to compel them plain terms, in what particular

to account for the property resecurities funds coming into the

ceived by their testator from the hands of the trustees shall be in firm, and to pay to plaintiff his vested and how, until so invested,

share thereof. One of the chilthey shall be held, the court can

dren applied to be made a party not, by its judgment, defeat the to the action, to enable him to intentions of the creator of the protect his interest in the estate: trust, and the beneficiaries there Held, that the application should under, by directing different in

have been granted. (Haas agt. vestments. (Clark agt. St. Louis, Craighead, 19 Hun, 396.) Alton and Terre Haute R. R. Co., ante, 21.)

6. Where, upon the trial of an ac

tion, brought by a legatee and 2. Without the consent of those next of kin, to procure the rebeneficially interested in the trust,

moval of an executor, and compel investments directed to be made

him to account, it appears the in first mortgage securities, cannot plaintiff has assigned his interest be made through the judgment of

in the estate as security for a debt, the court, in those of an inferior the court may direct a party hold. lien. (Id.)

ing it as security to be brought in

as a defendant. (Hood agt. Hood, 3. For the purpose of securing such

19 Hun, 300.) change in investment, the trustees do not represent the beneficiaries, 6. So far as mere legal rights are and an action to this end cannot concerned the only proper parties be prosecuted in their names, the to an action of foreclosure are the beneficiaries not being parties de mortgagor, the mortgagee, and fendant, and having no opportuni those who have acquired rights ty to be heard in relation to the under them subsequent to the propriety of granting such relief. mortgage, and these parties only (Id.)

are affected by the judgment.

(Em. Ind. Sogs. Bk. agt. Goldman, See COMPLAINT.

75 N. Y., 128.) De Witt agt. McDonald, ante, 411.

7. The plaintiff may make prior in4. The firm of Haas, Pike & Co. cumbrancers parties for the pur

transferred all its property, real pose of having the amount ascerand personal, to 8. N. Pike, one tained and paid out of the proof the partners, upon the agree ceeds, but where no such purpose ment that he should sell the prop. is indicated in the complaint, and erty, pay the firm debts from the no such provision is incorporated proceeds thereof, and divide what in the judgment, the prior lien is might remain between the plain not cut off. (Id.) tiff and himself. Pike died in possession of the firm property, 18. Where one contracts with a munileaving a will, by which he de cipality to perform in its stead the vised his estate to the defendants, duty resting upon it of keeping its in trust, to manage the same and streets in repair and safe for the

Digest.

passage of the public, and where by; also that the contract could because of neglect to perform the not be regarded as a simple conduty a cause of action arises tract and the seal rejected as suragainst the municipality, the ac plusage. (Id.) tion may be brought by the party injured directly against the con- 12. The lessee went into possession tractor. (McMahon agt._Second and paid rent, but it did not apAvenue R. R. Co., 75 N. Y., 231.) pear that he was in possession,

otherwise than under the lease, or 9. Where it distinctly appears from that any payment of rent had been

an instrument under seal that the made to plaintiffs: seal affixed is the seal of the per Held, that the presumption was son subscribing, who designates that the occupancy was under the himself as agent, and not the seal lease; and that the evidence failed of the principal, the former only to show a ratification of the lease is the real party who can maintain by plaintiffs. (Id.) an action upon the instrument. (Schaefer agt. Henkel, 75 N. Y., 13. Conceding that plaintiffs might 378.)

have maintained an action for an

occupation upon showing that B. 10. In order to take a case out of the had acted without authority in

general rule, where the contract taking the lease in his own name, is one valid without a seal, it or that upon setting forth the want must appear from the instrument of authority, the lease might be that it was really made on behalf resorted to as evidence of the of the principal, or that he has terms of the agreement, although derived benefit from and accepted it could not be enforced as a speand confirmed it by acts on his cialty, this does not authorize a repart. (Id.)

covery where the action is founded

solely upon the instrument, and 11. B. having oral authority from

where upon the trial plaintiffs plaintiffs to lease certain premises

claim to recover solely by virtue owned by them, executed in his

thereof. (Id.) own name, adding thereto the word

agent,” a lease under seal, in 14. Where one of the associates in a which he described himself as joint enterprise is a non-resident, “agent and party of the first

he is not a necessary party to an part,” but without stating for

action brought by another of the whom he acted as agent. In an

associates, for an accounting and action upon the lease, held, that

for contribution for losses and in the absence of proof that the

expenditures paid by him. (Angell lessee had knowledge that such

agt. Lawton, 76 N. Y., 540.) agent was acting for the owners, or had recognized their rights, and 15. And, so, where a non-resident in the absence of an assignment

associate has died, leaving no of the lease, said owners could not property in this state which would maintain an action thereon in

authorize the appointment of pertheir own name to recover rent

sonal representatives here, and accruing thereunder ; that such his personal representatives are an action was not authorized by

not within the jurisdiction of the the provision of the Code (old

court, they are not necessary parCode, sec. 111) requiring an action

ties to the action. (Id.) to be prosecuted in the name of the real party in interest, as the

PARTITION. parties executing such an instrument are the real parties in inter- 1. A purchaser under a sale in parest, they only being bound there tition is protected against all ir

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