110. Section 3234-Costs - when the defendant is not entitled to costs, although he succeeds upon some of the issues-costs cannot be taxed for an attachment which has been set aside. (See Barlow agt. Barlow, 35 Hun, 50.)

111. Section 3234- Costs - when each party is entitled thereto. (See Ackerman agt. De Lude, 30 Hun, 44.)

112. Section 3240-Costs on appeal from a surrogate's court-Code of Civil Procedure, sec. 2370. (See Walsh agt. Van Allen, 36 Hun, 629.)

113. Sectlon 3247- Under the second subdivision of this section, it being the same as section 321 of the Code of Procedure, a person becoming in any manner possessed of a cause of action after suit brought thereon is hable for all the costs of the action the same as if he were a party," as well those accruing before as after he became so possessed. (Olmstead agt. Keyes, ante, 1)

114. Sections 3251, 420, 738 — In an action upon contract, where the amount due is capable of computation, and may be easily ascer tained in that way, and the defendant serves an offer of judg ment for a specific sum, with interest and costs; and after the offer is made both parties serve notice of trial, after which time the plaintiff accepts the offer, he is only entitled to costs before notice of trial-fifteen dollars. No applicatior to the court was necessary, and but fifteen dollars are recoverable.

Where the action is against a receiver, and the plaintiff has to obtain leave to sue the receiver, he is not entitled to costs as upon application to the court. (Douglass agt. Macdurmid, ante, 289 )

a vendor to foreclose a land contract, in which the plaintiff recovers, he is not entitled to the additional allowance provided by section 325% of the Code of Civil Procedure. (Burkhart agt. Babcock, ante, 512.)

116 Section 3253- Where, in an action brought by taxpayers to have a contract made by a municipal corporation, by which it agreed to pay a sum specified for the performance of certain work, declared invalid, the plaintiff was defeated and judgment was rendered in favor of the contractor with the corporation, adjudging the contract to be valid, and that it had been performed by the contractor: Held, that "the value of the subject-matter involved" was for the purposes of computing an extra allowance, the contract price for the work, not simply the profits made thereon. (Mingay et al. agt. Holly Mfg. Co., 99 N. Y., 270.)

117. Sections 3268, 3160-In an action in the city court of New York, a plaintiff residing without the state, but having an office in the city of New York, where he regularly transacts business in person, cannot be required to give security for costs.

Sections 3268 and 8160 Code of Civil Procedure construed. (Wyckoff agt. Devlin, ante, 335.)

118. Section 3271-A person who brings an action in the name of the overseer of the poor under chapter 628 of the Laws of 1857, as amended by chapter 820 of the Laws of 1873, to recover penalties for a violation of the excise law cannot be required to file security for costs under this section of the Code of Civil Procedure.

This section does not apply (Sharp agt. Fancher, 29 Hun, 193, criticised and not followed; Board of Commissioners of Ercise agt. Me Grath, 27 Hun, 425, followed). (Matter of Martin, ante, 26.)

119. Sections 3333, 3334, 3240 — A proceeding under the general railroad act (sec. 28, chap. 140, Laws of 1850) by one railroad corporation to secure a crossing over the track of another railroad is a special proceeding (Code of Civ. Pro., secs. 3333, 3334), and the costs therein are, as a general rule, in the discretion of the court (Sec. 3240; RAPALLO and MILLER, JJ., dissenting). (Matter of Cortland, &c., Horse R. R. Co., 98 N. Y., 336.)

120. Section 3343 - Under subdivision 18 of this section of the Code of Civil Procedure, the location of a federal corporation is determined by the place of its principal office. Its domicile is where its principal office is. (Rosenbaum agt. Union Pacific Railway Co., ante 45.)

121. Sections 3355, 90, 2511 - That

in view of section 3355 of the Code, sections 90 and 2511 must be construed as if they had simultaneously become law, and that so construed, "a clerk or other person employed in the surrogate's office" is competent to act as referee, in a proceeding pending in the surrogate's court, provided he is appointed with the written consent of all the parties appearing.

That the stenographer of the surrogate's court is not within the scope of section 90 or of section 2511. (In the estate of Tunis Cooper, deceased, ante 38.)

CODE OF CRIMINAL PROCEDURE.

1. Section 8, sub. 3- Right of one accused of crime to be confronted with witnesses-meaning of the requirement U. S. Const., art. 6; and art. 14, sec. 1-bill of rights, sec. 14. (See People agt. Williams, 35 Hun, 516.)

the

erence of a claim under Revised Statutes against a deceased person's estate, a report has been made in favor of the claim, costs are not recoverable unless the payment of such claim has been unreasonably neglected or resisted.

A large reduction of the balance claimed by the bill as presented justifies the resistence.

Neither is it unreasonable for the executrix, who is a sister of the claimant, when such claim is for board furnished to the decedent and his wife, the defendant, during a period of several years, and the value thereof is one of the questions in dispute, to insist that the amount to be paid shall be established by a reference.

Nor is it unreasonable for the residuary legatee under the will of the decedent, who is a stranger to the whole transaction, to inquire by means of a reference into the justice and legality of the claim.

Upon such a reference, however, "the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements to be taxed according to law."

The clause in this section of "The Code of Procedure," which gave them, was not repealed by the adoption of part 2 of The Code of Civil Procedure;" nor by chapter 245 of the Laws of 1880, which professed to repeal "The Code of Procedure left unrepealed by chapter 318 of the Laws 1877, with the exceptions therein stated. The repealing act of 1880 retained and preserved “the right of a prevailing party to recover such disbursements, using the exact language of this section.

Upon a full consideration of the question, the decisions in Sutton agt. Newton (2 How. [N. S.], 56) and in Hall agt. Edmunds (67 How., 202) adhered to; and Miller agt. Miller (32 Hun, 481) held untenable. (Overheiser agt. Morehouse, ante, 257.)

3. Section 321- Under this section

of the Code of Procedure, one taking an assignment or becoming in any manner possessed of a cause of action after suit brought thereon is liable for all the costs of the action the same as if he were a party," as well those accruing before as after the assignment.

Section 3247 of the Code of Civil Procedure took effect September 1, 1880, and at that date this section of the old Code was repealed, but section 3352 of the Code of Civil Procedure protects all rights lawfully accrued or established previous to the repeal of this section. (Olmstead agt. Keyes, ante, 1.)

COLORED SCHOOLS.

See NEW YORK (CITY OF). The People ex rel. Ray agt. Davenport, ante, 17.

COMMISSIONS.

1. Full commissions should be allowed executors or trustees on receiving and paying out the income, notwithstanding the trustee has received full commissions on a former accounting for receiving and investing the principal. (Matter of Goodrich, ante, 291.)

COMMISSIONERS.

See RAILROADS.

Matter of the New York, Lackawanna and Western Railway Co., ante, 225.

COMPLAINT.

1. The complaint in an action to recover real estate ought to aver that the plaintiff is the owner or seized in fee, and is entitled to the possession or that defendant wrongfully or unlawfully witholds possession

from plaintiff. (Alvord agt. Hetsel, ante, 88.)

2. Alleged fraud cannot alter or

change the statute. Fraud may relieve a person from an agreement, but it cannot extend the statute for bringing an, action or making an election. If an action

able fraud has been perpetrated, damages by way of compensation may be awarded, but the court cannot relieve from a statute bar. (Aken agt. Kellogg and others, ante, 136.)

3. Where the complaint alleged fraud, there should also be an averment that the statement made to the plaintiff was for the interest or purpose of influencing her action, as the fraud is not a statement of a fact, but the expression of an opinion. (Id.)

4. The courts of this state have no

jurisdiction for trespass to lands without the state. (Dodge agt. Colby, ante, 475.)

5. To maintain slander of title, it must be alleged to have been malicious. (Id.)

6. It is no slander to allege ownership and that plaintiff has no title. (Id.)

7. Under section 484 of the Code of Civil Procedure, trespass and slander of title cannot be joined in the same complaint. (Id.)

CONDITIONAL SALES.

1. Every contract in the nature of a conditional sale agreement must be filed according to the laws of 1884, chapter 315, or it is void as to subsequent purchasers and mortgagees in good faith. (Campbell Printing Press Company agt. Oltrogge, ante, 319.)

2. The object of the statute is to render secret liens upon personal

property ineffectual as to innocent purchasers, and the courts will not permit the statute to be evaded. (Id.)

3. In determining whether the contract comes within the statute, the whole instrument is to be taken together and the ruling intention of the parties, to be gathered from the whole of it, is what is to be regarded (Id.)

CONTEMPT.

1. The court has no power to punish a husband as for a contempt for non-payment of costs and counsel fee, which he was directed to pay by the final judgment in an action for separation. Such costs and counsel fee should be collected by execution. (Jacquin agt. Jacquin, ante, 206.)

2.

Upon the trial of one Short for a criminal assault, the jury rendered a verdict of acquittal, which verdict was inconsistent with the

evidence as recapitulated in the charge of the judge presiding at the trial. During the trial one of the jurors, without the permission or suggestion of the court, went, during a recess, to the premises where the assault was alleged to have been committed, for the purpose of examining them and so acquiring information not furnished by the evidence submitted to the jury. The judge had not, upon the adjournment of the court, admonished the jury, as required by section 415 of the Code of Criminal Procedure, that it was their duty not to converse among themselves on any subject connected with the trial, or to form or express any opinion thereon, until the case was finally submitted to them: Held, that although the juror was guilty of a misdemeanor under section 73 of the Penal Code. yet he was not guilty of a criminal contempt for which he could be summarily

punished by the court. (People ex rel. Munsell agt. Oyer and Terminer, 36 Hun, 277.)

3. That the word "mandate," as used in subdivision 3 of section 8 of the Code of Civil Procedure, authorizing the court to punish for a criminal contempt a person guilty of a willful disobedience to its lawful mandate," means only a written direction or order. (Per DANIELS, J.)

4. That it includes a verbal direction or order. (Id.)

CORNELL UNIVERSITY.

1. The person to be selected for a free scholarship in the Cornell University must be a student from one of the academies or public schools of the county from which he or she is to be selected. (The People ex rel Wright agt. Genung, ante, 324.)

2. The State Normal School, located at Cortland, is not one of the public schools of Tompkins county within the intent and meaning of the statute, and an attendance at such school does not entitle a person to such scholarship. (Id.)

3. The candidates for such free scholarship should, each year, be selected from scholars in the academies and public schools during that year, and not from the best scholars who have at any time attended the public schools and academies of the county. (Id.)

4. The position that a person is not a scholar of a high school because she was graduated at the close of its last term, and hence ineligible as a candidate, cannot be sustained. For the purposes of the act she must be regarded as a scholar of that school, at least until the end of the school year, and until that school shall again commence its sessions. The in

1.

tention of the statute is that she may have all the advantages of that school so long as she is a member of it, and upon her final examination and graduation may then become a candidate for such scholarship. (Id.)

CORPORATIONS.

Under section 3343, subdivision 18 of the Code of Civil Procedure, the location of a federal corporation is determined by the place of its principal office. Its domicile is where its principal office is (Rosenbaum agt Union Pacific Railway Company, ante, 45.)

2. Where an act provides that corporations consolidated under it shall assume as a condition of the right the payment of the liabilities of the several corporations which are absorbed in the new corpora tion, each holder of coupons in either of the corporations so absorbed is at liberty to maintain an action directly upon contract against the new corporation, by reason of its having absorbed the one which issued the bonds. (Id.)

3. Actions against trustee to recover corporate debts as a penalty for failure to file annual reports are "penalties," within the meaning of section 837 of the Code of Civil Procedure. In such actions a party defendant is privileged from answering any question concerning the facts alleged in the complaint and cannot be compelled to answer upon an examination before trial any question which would support the claim of the plaintiffs, either against himself or his co-defendants. (Hughen agt. Woodward, ante, 127.)

4. Corporations attacked by the state for insolvency can, even after a receiver is appointed, use their corporate funds for their own protection in the litigation if their action is taken in good faith and