term of the supreme court from a decision of the county court in proceedings for draining lands, instituted under chapter 888 of 1869, as amended by chapter 303 of 1871. (Burk agt. Ayers. 19 Hun, 17.)

70. A notice of appeal from the de

cision of the county court, affirming a decision of the drainage commissioners, need only be served upon the commissioners, the respondents in the county court. (Id.)

71. The notice of appeal to the county court from the determination of the drainage commissioners need not specify the errors complained of. (Id.)

72. To authorize a party to appeal from the determination of the drainage commissioners, it is not necessary that any of his land should have been actually taken; it is sufficient if he be the owneror possessor of land in any way affected by the proceedings. (Id.)

73. A decision of the county court affirming a judgment of the drainage commissioners, with a modification to the effect that on request of the appellant they should open a drain through his land, is a final judgment, so as to be appealable. (Id.)

74. An objection to the jurisdiction of the court below may be raised for the first time on appeal. (Id.)

76.

none of it is actually taken thereby. (Id.)

Semble, that the doctrine that to entitle the owner of property to protection under the constitutional provision that private property shall not be taken for public use without compensation, the property must actually be taken, and that the owner is not entitled to remuneration for indirect or consequential damages, does not apply to a case in which the attempted exercise of the right of eminent domain, from which the consequential damage results, is not authorized by law. (Id.)

77. Semble, that a determination by the commissioners that the proposed drainage is necessary "to carry off surface water from farm lands and the highways," will not authorize an order directing the construction of a drain; there must exist a necessity for draining the lands of the petitioners, or the lands described in the petition. (Id.)

78. Plaintiff and the defendant, the village of Athens, each claimed to have the exclusive right to run a ferry between the city of Hudson and the village of Athens. In this action, brought by the plaintiff to restrain the defendant from running the said ferry, the complaint alleged that the defendant had diverted business from the plaintiff, to his great loss and damage, but gave no special details thereof. The defendant alleged that no material or irreparable damage was being done to the plaintiff, and that the defendant was abundantly responsible for any probable sum that plaintiff could recover:

Held, that the action was not one in which an injunction pendente lite should be granted. (Power agt. Village of Athens, 19 Hun, 165.)

On July seventh an order was

granted restraining the defendants, the village of Athens, and the trustees thereof, from running a ferry from Athens to Hudson. On July eighth the court granted an order, returnable on the tenth, at 10 A. M., at Kingston, requiring the defendant to show cause why they should not be punished for a contempt in violating the injunction. The order was served on the defendants, at Athens, at about noon of July ninth:

Held, that the order did not give the defendant "a reasonable time" within which to show cause, and that the discretion of the justice fixing such time was reviewable at general term. (Id.)

80. General Rule No. 21, requiring

a non-enumerated motion to be noticed for the first day of the term, unless sufficient cause be shown (and contained in the affidavit served) for noticing it for a later day, is applicable to an order requiring a defendant to show cause why he should not be punished for a contempt in violating an injunction. (Id.)

81. An appeal from an order granting a temporary injunction does not supersede or authorize the defendants to disobey it. (Id.)

82. Where, however, defendants, in disobeying the injunction, act under the advice of counsel that it is superseded by an appeal taken therefrom, the fine imposed should not exceed the actual damage sustained by the plaintiff, together with his costs and expenses to be taxed under section three of chapter 270 of 1854. (Id,)

83. No counsel fee or extra allowance can be granted as part of such costs and expenses. (Id.)

94. G. Smith, on October 10, 1866, mortgaged certain premises to one Owens, who, on July 5, 1867, assigned the mortgage to W. Smith, who, on October 1, 1868, assigned |

it to the plaintiff. The mortgage was recorded October 15, 1866, and the two assignments February 9, 1877. In February, 1876, Smith applied to one Van Schoonhoven for a loan on the premises; Van Schoonhoven, having searched the records, refused to make the loan unless the Owens mortgage was satisfied, he having no knowledge of its having been assigned. Smith procured a satisfaction piece from Owens, paying nothing therefor, and delivered it to Van Schoonhoven, who recorded it and his mortgage at the same time, February 9, 1876.

In an action by the plaintiff to foreclose the mortgage, held, that Van Schoonhoven was protected by the recording act, and that his mortgage was entitled to priority over that of the plaintiff.

After the execution of the Owens mortgage, and before the execution of the one to Van Schoonhoven, and on November 4, 1871, Smith gave a mortgage on the same premises to one Carpenter, which was duly recorded January 3, 1872:

Held, that in distributing the proceeds arising under the sale, there should first be set apart the amount due on the Owens mortgage, and that that amount, or so much thereof as might be necessary, be applied on the mortgage to Van Schoonhoven, and the balance, if any, on the Owens mortgage. The residue of the proceeds of the sale should be first applied on the Carpenter mortgage, and next on the balance remaining due on the Van Schoonhoven mortgage, and lastly, any remaining surplus should be applied on the Owens mortgage. (Bacon agt. Van Schoonhoven, 19 Hun, 158.)

85. The complaint in this action alleged that the defendants entered into a contract with the plaintiff to perform certain work upon the canal and furnish material therefor; that the amount to be re

ceived by them thereunder was $74,183.40; that no change or alteration in the plan, or the work to be done, had been lawfully made. It then alleged that the defendants, "under color of said contract, without right, obtained and received moneys owned and belonging, and which now belong, to the state, amounting in the aggregate to the sum of $417,571. That the said moneys were so obtained and received by the defendants by means of frauds, devices, false pretenses and vouchers, and corrupt combinations and collusions with state officers," and then set forth certain alleged frauds The referees, before whom the action was tried, found that the contract was let as alleged in the complaint; that the same was unlawful, and without authority, thereafter changed, and the cost of the work largely increased by the removal of a qantity of the slope wall of the canal and the substitution therefor of vertical wall, and that the money paid for such unauthorized work so performed, and the materials fur nished therefor, could be recovered back. The report contained no finding, nor was any evidence given, showing fraud on the part of any person, or any imperfection in the work done, or that the work and materials were not worth the amounts paid therefor. The payments had been made as the work progressed upon certificates and estimates of officers of the state:

Held, that the action was in tort, and that as no fraud had been proved, a recovery could not be had on contract. (People agt. Dennison, 19 Hun, 137.)

86. That as the work was done on the property of the state, and as it had received and still retained the benefits thereof, an action would not lie to recover the money paid therefor by officers to whom it had intrusted the supervision and management of the work. (Id.)

87. An action to recover upon a policy of insurance, brought after the death of the person insured and the expiration of the time given by the terms of the policy to the company within which to pay it, is an action against a corporation, founded upon an "evidence of debt, for the absolute payment of money," within subdivision 8 of section 791 of the Code of Civil Procedure, and is entitled to a preference upon the calendar. (Studwell agt. Charter Oak Ins. Co., 19 Hun, 127.)

88. A plaintiff, by failing to file a note of issue in the form prescribed by General Rule No. 36, waives his right to have the case treated as preferred, on the ground that the property of the defendant is held under an attachment. (Id.)

89. This action was brought by the plaintiff to recover $6,615 for two quarters' rent accruing on August 1, and November 1, 1877, on a lease, under seal, given by him to the defendants. Subsequent to its commencement, the plaintiff brought another suit, in another court, against the same defendants, to recover the balance of a quarter's rent, 150, which had fallen due, under the same lease, on February 1, 1877, and recovered a judgment therein, which was paid. Thereupon the defendants put in a supplemental answer, setting up, as one of the defenses, the recovery and payment of the judgment in the second action. Upon an appeal from a judgment entered upon an order sustaining a demurrer to this defense:

Held, that the recovery and payment of the judgment in the second action, though occurring during the pendency of the first, was properly pleaded by a supplemental answer.

That, when pleaded, it constituted a defense thereto. (Jex agt. Jacob, 19 Hun, 105.)

90. That the judgment sustaining the demurrer should be reversed, without prejudice to an application to vacate the judgment in the second action, and for leave to return to the defendants the money paid upon it, and consolidate both actions, on such terms as might be just. (Id.)

91. An order of a county judge, adjudging a party guilty of contempt in violating an injunction contained in an order directing him to appear for examination in supplementary proceedings, involves a substantial right, and is appealable under section 1342 of the Code of Civil Procedure. (Newell agt. Cutler, 19 Hun, 74.)

92. A failure to show the party the original order, when serving him with a copy, is a mere irregularity, which is waived by his appearing, without objection, before the referee and submitting to an examination. (Id.)

93. Where a party has been served with an order requiring him to appear and be examined in supplementary proceedings, and restraining him from disposing of any of his property, the fact that he has a family wholly supported by his labor will not authorize him to dispose of wages subsequently collected by him, without permission of the court. (Id.)

94. In this action, brought by the payee of a joint and several note against the makers thereof, the original plaintiff died and the action was revived by his administrator. The defendants, one of whom had signed the note for the accommodation of the other, moved to sever the action so that they might severally testify in each other's favor, in order to establish the defenses set up in the

answer:

Held, that as the defendants could be witnesses for each other to the same extent in the joint ac

tion that they could in the two actions into which it was sought to separate it, that no reason existed for granting the application, and that an order of severance should not be granted. (Hill agt. Alvord, 19 Hun, 77.)

95. On appeal an order directing the severance of an action is reviewable upon its merits. (Id.)

96. August 12, 1872, a judgment was recovered against Edward Wall, as survivor of a firm composed of himself and Robert R. Stevens, on a firm note. The complaint alleged that Wall and Stevens had been partners; that Stevens was dead, and that Wall was the sole survivor. On this judgment an execution was issued and partially collected. In 1878, on notice to Wall, the summons and complaint were amended by adding thereto the names of Malona Stevens, Joel Stevens, 2d, and Annis Stevens, as surviving partners of the said firm. Thereafter a summons was issued requiring the additional defendants to show cause why they should not be bound by the said judgment, entered in 1872, and amended by the order of January 7, 1878:

Held, that the summons was irregularly issued and should be set aside. (Organ agt. Wall, 19 Hun, 184.)

plication of Samuel Strowger, and passing through the improved lands of said Strowger and others, who have consented thereto; said road commences on the five mile line at Alpheus S. Chark's southeast corner; thence running westerly to the Drew farm, and between Ichabod Leonard, Jr.'s, land and William R. Thomas' land, twenty-six rods, according to the survey thereof." The order was recorded in the book of town records, and on the same day, and on the following successive pages of the same book, were recorded an instrument under seal, reciting the laying out of the same highway on April 9, 1853, by which the owners of the lands through which it passed released their claims for damages, and also a survey of the said highway, dated April 9, 1853, and signed by the said Strowger:

Held, that the surrounding circumstances sufficiently identified the survey, dated April 9, 1853, as the one referred to in the order of the commissioner, and that the statute requiring the survey to be incorporated in the order was substantially complied with. (McCarthy agt. Whalen, 19 Hun, 503.)

99. That the release signed by the owners sufficiently showed their consent to the laying out of the highway. (Id.)

100. It is not necessary to the valid laying out of a highway that there should have been a written application therefor; the commissioner may act of his own motion. (Id.)

101. This action was brought against the defendants, Ezra Jones, Burrall Spencer, Samuel M. Spencer and Jarvis Lord, as joint payees and indorsers of a promissory note, discounted by the plaintiff. The summons and complaint were personally served on Jones, and on Burrall Spencer and Samuel M. Spencer on May 7, 1878, and on Lord sometime before May 29,

1879. Samuel M. Spencer served an answer alleging that his indorsement on the note was forged by Burrall Spencer. On May 29, 1878, judgment by default was entered against Jones and Burrall Spencer. The issue raised by Samuel M. Spencer's answer is still pending. Burrall Spencer had notice of the entry of judgment against him on June 7, 1878, and subsequently used the judg ment roll for the purpose of establishing a defense interposed by him in an action of foreclosure, to which all the parties to this action were parties. On May 9, 1879, Burrall Spencer noticed a motion, to be heard May 27, 1879, to set aside the judgment against him for certain irregularities which were specified in his notice:

Held, that the court below, in its discretion, properly denied the motion, and that an order to that effect should be affirmed. (National Bank agt. Spencer, 19 Hun, 569.)

102. The power of the supreme court to allow a judgment to be entered against one joint debtor, on his failure to appear and answer, while an issue raised by the answer of another joint debtor is still pending, considered. (Id.)

103. Defendant's father dies, leaving a will, by which he devised to his trustees, among other property, a house and lot in Rochester, in trust to give to the defendant "the free and unrestrained use, occupation and possession thereof during the term of her natural life only, and on her death to convey it to her children in fee. He also directed the trustees to pay to his widow a specified amount out of the income to arise from certain personal securities, and to divide any surplus of such income among his children, and on the widow's death, to pay each daughter then living the income of a certain share of the estate during her life. The widow was still living, and