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Digest.

amination is had. (Pardee agt. closures by action are proceedings Tilton, ante, 476.)

in the action, and are similar to

proceedings under chapter 804, 2. The representatives of a party

Laws 1868. When costs are alwhose rights, under the judgment lowed, they must be at the rate and execution, had been deter allowed in proceedings for the remined prior to September, 1877, covery of surplus moneys arising may institute supplemental pro upon foreclosures by action, i. e., ceedings without renewing the necessary disbursements and moaction. (Id.)

tion costs. (Id.) 3. In proceedings supplementary to execution, the judge cannot direct

SURROGATE. property of the judgment debtor (a horse), to be delivered to the 1. The jurisdiction to vacate, modi. creditor on his giving the debtor

fy and rescind orders in cases a receipt for his claim. The prop where the court has been imposed erty should be sold under an exe

upon, is exercised by the supreme cution or by a receiver. (Dickin

court without question as to its son agt. Onderdonk, 18 Hun, 479.)

right and authority so to do.

(Matter of the estate of Cohen, ante, 4. Semble, that where, in supple

496.) mentary proceedings, the debtor claims that property, which may 2. The same power is conferred upby law be exempt from execution,

on the surrogate of the city of is in fact so exempt, the question New York by section 1 of chapof exemption cannot be tried in

ter 359, Law of 1870, which prosuch proceedings, but must be

vides that “the surrogate of this tried in an ordinary action. (Id.)

county has jurisdiction to set aside, open, vacate or modify the

orders and decrees of this court SURPLUS MONEYS.

with the same power as is exer

cised by courts of record of gene1. In proceedings to distribute sur ral jurisdiction.” (Id.)

plus moneys a question of fraud may be investigated before the 3. Accordingly, where, on applicareferee, and every question may tion to the surrogate for an order be examined tending to show the vacating and setting aside two equities of the claimants. (Tator orders, one of which accepts the agt. Adams, ante, 355.)

resignation of D. B. as general

guardian of minors and discharg2. Proceedings under chapter 804, ing him from his trust as such

Laws 1868, for the recovery of guardian, and the other of said surplus moneys arising upon mort orders releasing said guardian gage foreclosures by advertise and his sureties from all future ment are special statutory pro liability upon his official bond ceedings. (Matter of Gibbs, ante, and for other and future relief: 502.)

Held, that it appearing to the

satisfaction of the surrogate that 3. Successful claimants may, in the the orders were procured from

discretion of the court, be allowed his predecessor by false statecosts under chapter 270, Laws ments made under oath, by a false 1854, at the rate allowed for simi receipt, by the suppression of lar services in civil actions. (Id.) facts and by deception practiced

upon the court that they should 4. Proceedings for the recovery of be revoked because of the fraud.

surplus moneys arising upon fore Held, further, that the account.

Digest.

ing of the general guardian and appraise the same in payment of the orders made thereon present a just debt due from a solvent no bar to a proceeding to vacate debtor," instead of which the them for fraud under the act of oath of the assessors, appended 1870. (Id.)

to the assessment roll, read: “We have estimated the value of the

said real estate at the sums which SURVIVORSHIP.

a majority of the assessors have

decided to be the fair proportion1. Where an action was brought by

ate value thereof and at which, in

the same ratio, they would applaintiff against the defendant, who was a practicing physician

praise the same in payment of a

just debt due from a solvent and surgeon, to recover damages

debtor: " alleged to have been caused by

Held, that such a departure from his improper and unskillful treat

the statute vitiates the entire asment of the plaintiff, who had

sessment, and where a county sustained a fracture of the bones of her wrist and employed the

treasurer had, under the provi. defendant in his professional ca

sions of the statute, advertised

for sale the lands of the plaintiff pacity to treat the same, and pend

for an unpaid tax, he is entitled ing the suit the defendant died:

to the preventive remedy of an inHeld, that the action does not

junction to restrain the sale of the survive against the defendant's

same. (Beach agt. Hayes, anto, 17.) executors, the injuries alleged to have been sustained by the plain- 2. Where a deed, given by a public tiff being injuries to her person and not to her estate. (Best agt.

officer, is prima facie evidence of

title, a party should have a preVedder, ante, 187.)

ventive remedy, because there is

then, if such deed is given an ap2. Pain and bodily injuries do not

parent cloud resting upon the title possess such transmissible quali

of the owner, which extrinsic evities as to compel the living to

dence only can remove. (Id.) atone for such as the dead inflicted, nor to entitle them to receive 3. Where, as in this case, the treassatisfaction for such as the dead suffered. (Id.)

urer's deed is, by law, made presumptive evidence" that all the statutory provisions have been

complied with, and if the plainTAXES AND ASSESSMENTS. tiff's property is sold and convey.

ance executed, the title in the pur1. Where the statutes provided that

chaser will be, apparently and “all real and personal estate liable

presumptively, complete, and can to taxation be estimated and as only be attacked and overthrown sessed by the assessor at its full

by affirmative evidence given by and true value, as they would ap

the plaintiff, the court is authorpraise the same in payment of a

ized to intervene by injunction just debt due from a solvent debt and restrain the sale. (Id.) or," and when the assessors had completed their roll they were required to make an oath which TITLE TO OFFICE. contained this clause: “We have estimated the value of the said 1. Prior to 1873 the charter of the real estate at the sums which a city of New York provided that majority of the assessors have de each board of the common councided to be the full and true value cil should "be the judge of the thereof and at which they would election returns and qualifications

Digest.

of its own members ” (Laws of

TRIAL. 1857, vol. 1, page 875):

Held, that the decision of the 1. It is a familiar rule for the conboard of aldermen in such cases duct of a trial that a party holding could not be reversed or set aside the affirmative is bound to introby the court.

duce all the evidence upon his side Held, further, that the change before he closes. He must exhaust in the phraseology of the charter all his testimony in support of the of 1873 does not give to the court issue on his side before the testi. the power, in an action in the na mony on the opposite side has ture of a quo warranto, to pass been

heard. (Marshall and Miller upon the question of title to the agt. Davies and others, ante, 231.) office of alderman where the board has declared in favor of such right. 2. He can afterwards introduce evi(The People ex rel. Hatzel agt. Hall, dence in rebuttal only. Rebutting ante, 147.)

evidence in such cases, means not

merely evidence which contradicts 2. The charter makes the judgment the witnesses on the opposite side,

of the board the subject of review and corroborates those of the party by any court of competent juris who began, but evidence in denial diction, or, in other words, it of some affirmative fact which the permits an appeal to a court of answering party has endeavored to competent jurisdiction from the prove. (Id.) judgment of the board. But the judgment of the board cannot be 3. Where the defendant had been reviewed in an action to which examined in support of his allethe board is not a party, and in gation of notice and request to which the record of that board is foreclose a mortgage, and he had not before the court. (Id.)

testified to a conversation with

M., upon which he relied, and 3. It is the office of the writ of cer

that he thought there was none tiorari to correct errors of a judi

subsequent: cial character committed by an

Held, that having rested his case, inferior tribunal or body, and that

and the plaintiff having closed his writ brings the record before the testimony, the defendant had no court for examination and review,

legal right to reopen his own case and such writ should be returnable

and introduce evidence to sustain before the general term. In cases

his defense, which he might have of this kind a circuit judge, in a

introduced when the case was with circuit court, cannot sit as an

him. appellate tribunal to review the

Held, further, that after having judgment and decision of an infe

testified to one conversation which rior tribunal. (Id.)

was denied on the other side, the defendant was not entitled, as a matter of right, to prove another as to which he had not previously

testified, even though it tended TORT.

to support his original statement.

(Id.) See EXECUTION. Dougherty agt. Gardner, ante, 284. 4. This was not evidence in rebuttal

The testimony on the part of the See COMPLAINT.

plaintiff was that other conversaDe Witt agt. McDonald, ante, 411. tions might have been held, but

that no conversation of the nature See MARRIED WOMAN.

testified to by the defendant ever Lansing agt. Holdridge, ante, 440. took place. This was a mere de.

Digest.

nial, and not proof of any affirma made upon that ground, the granttive fact which the defendant had ing it is not a matter of discretion, the right to rebut. (Id.)

but of legal right. (Id.) 5. These rules may, in special cases, 11. Where the objection was raised be departed from, in the discretion

and was

not waived, and no of the trial judge, but a refusal to amendment of the complaint was depart from them is no ground of made or asked for on the trial, the exception. (Id.)

correctness of the ruling denying

motion to dismiss must be tested 6. Under the provision of the char on appeal on the complaint, as it

ter of the village of Port Jervis stood, not as it might have been (sec. 40, chap. 370, Laws of 1873), changed by amendment; and if giving to the police justice of said the ruling was erroneous, it is village the jurisdiction, powers

fatal to a recovery. (Id.) and authority of the justices of the peace of the town in which the village is situated, with “ju

TRUST DEED. risdiction to hear and determine all cases arising under the charter, 1. Where a deed of trust directs, in by-laws or ordinances," the juris.

plain terms, in what particular diction in the class of cases last

securities funds coming into the specified, is to be exercised in the

hands of the trustees shall be insame manner as in cases before

vested, and how, until so invested, justices of the peace. (People ex

they shall be held, the court canrel. Dargin agt. Cox, 76 Ñ. Y., 47.)

pot, by its judgment, defeat the intentions of the creator of the

trust, and the beneficiaries there7. In an action, therefore, for a vio

under, by directing different inlation of an ordinance of said

vestments. (Clark agt. St. Louis, village, held, that defendant was

Alton and Terre Haute R. R. Co., entitled to demand and have a

ante, 21.) jury, as on trial before a justice of the peace. (Id.)

2. Without the consent of those

beneficially interested in the trust, 8. An erroneous ruling, as to the investments directed to be made

burden of proof, is not cured by in first mortgage securities, canthe fact that the party, upon

not be made through the judgwhom the burden is improperly ment of the court, in those of an imposed, ineffectually attempts to inferior lien. (Id.) make a case under the ruling; he may rest upon his exception, but 3. For the purpose of securing such it is not waived or its force im change in investment, the trustees paired by his attempting to com do not represent the beneficiaries, ply with the erroneous ruling. and an action to this end cannot be (Nickerson agt. Ruger, 76 N. Y., prosecuted in their names, the 279.)

beneficiaries not being parties de

fendant, and having no oppor9. Where the complaint in an ac tunity to be heard in relation to

tion does not state facts sufficient the propriety of granting such reto constitute a cause of action, the lief. (id) objection is available on trial upon motion to dimiss the complaint. (Tooker agt. Arnoux, 76 İN. Y.,

UNDERTAKING. 897.)

1. The undertaking required by the 10. Where a motion to dismiss is Code of Civil Procedure is amend.

Digest.

88.)

able. And where the undertaking, 3. iven on a plea of title, must on which the order of arrest was comply with provisions of section granted, is in the form required 12, Chapter 96 of 1854. (See Kohlby the old Code of Procedure, the brenner agt. Elsheimer, 19 Hun, defect is cured by the execution and service of a new undertaking which conforms to the require. 4. Taken by a coroner, on releasing ment of the Code of Civil Pro a defendant surrendered to him cedure, and a motion to vacate the by the sheriff, when void. (See order of arrest will be denied on Douglass agt. Warren, 19 Hun, 1.) proof of the execution and serv ice of new undertaking by the 5. Where, in an action by a judg. same sureties before the motion is ment creditor upon an undertakheard:

ing given to stay proceedings Held, also, that a complaint on pending an appeal to this court, information and belief, verified it appeared that at the time of the by the agent of plaintiff, is suffi commencement of the action the cient on a motion to vacate, where judgment had been regularly the agent sets forth in the verifica attached at the suit of creditors tion, and also in a separate affida of the judgment-creditor, and the vit, the sources of his information attachments were still in force, and the grounds of his belief. held, that the action could not be (Pember agt. Schaller, ante, 511.) maintained; that the undertaking

was simply a collateral security 2. In July, 1864, plaintiff recovered

for the judgment and passed with a judgment against on Whitbeck

it to the sheriff; that it was not for the possession of certain real necessary to attach the undertakproperty. Whitbeck appealed to

ing separately, as it was an incithe general term, and to stay pro

dent of the judgment, not an inceedings, gave an undertaking,

dependent liability of the sureties. signed by the defendant Simmons,

(Wehle agt. Spellman, 75 N. Y., by which the latter agreed, among

585.) other things, “that during the possession of such property by 6. Where the sureties to an under. the appellant, he will not commii,

taking upon appeal to this court nor suffer to be committed, any

from a final judgment fail to juswaste thereon." The judgment

tify, the appellant may give a new was affirmed September 28, 1865,

undertaking at any time within and Whitbeck, six days there

the year allowed for appeal, and after, appealed to the court of when given the appeal becomes appeals, giving an undertaking,

effectual; and if the respondent with other sureties, to stay pro

fails to except to the sureties withceedings. In January, 1867, the

in the time allowed, the new un. judgment was affirmed by the

dertaking becomes perfect for the court of appeals. In the winter purposes of the appeal (New Code, of 1866 and 1867, Whitbeck com

secs. 1325, 1326, 1327). (Blake agt. mitted waste upon the property.

L. and F. Mfg. Co., 75 N. Y., 611.) In an action to recover the damages occasioned thereby, held, 7. Under the Code of Civil Procedthat Simmons was not liable there ure (now Code, sec. 1300), a notice for, that his liability became fixed of appeal to this court may be upon the giving of the undertak served before any undertaking

has ing upon the appeal to the court been executed, and the undertakof appeals, and could not be af ing may be given at any time befected by any subsequent acts of fore the expiration of the time for Whitbeck. (Ohurch agt. Simmons, appealing (sec. 1334); but the no19 Hun, 220.)

tice does not become effectual for

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