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App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1897.

quired the payment of said costs and disbursements by the respondent who in that proceeding was the appellant here. The question of the taxation of these costs has, therefore, been twice presented, once at the Special Term and once at the General Term; and this seemingly should have been an end of the matter. After the entry of judgment and the issuance of an execution, an order to examine the appellant in supplementary proceedings was granted. Thereupon, a motion was made to set aside such order upon the ground that the taxation originally made by the clerk was unauthorized, and the judgment founded thereon void. The motion was denied at the Special Term, and on appeal the order denying such motion was affirmed by this App late Division. Thereafter the appellant made this motion to set aside the taxation and the execution upon the ground that Cassidy v. McFarland (139 N. Y. 201) sustains the proposition that no authority or power whatever was conferred upon the clerk to tax the disbursements, and that, therefore, the execution issued had no judicial determination upon which it could rest; and that, under the authority of Kamp v. Kamp (59 N. Y. 212), the appellant has the right at any time to assail the validity of the judgment entered ! upon the clerk's action. We do not intend to examine anew this question, it having been presented and the same authorities examined upon the former appeal, and we must regard the decision then made as an adju lication upon the precise question now presented. The order should be affirmed, with ten dollars costs and disbursements, Present -- Van Brunt, P. J., Williams, Patterson, O'Brien and Ingraham, JJ. Peter B. Olney, Receiver. Respondent, v. Frank W. Goodwin, Appellant.- Order affirmed, with ten dollars costs and disbursements.-PER CURIAM: The order in this case should be affirmed on the authority of Munzinger v. Courier Co. (82 Hun, 575). Order affirmed, with ten dollars costs and disbursements. Present Van Brunt, P. J., Barrett, Rumsey, O'Brien and Ingraham, JJ. Sarah J. Sawyer, Appellant, v. William W. Badger et al., Respondents. - Judgment affirmed, with costs.

PER CURIAM: The rulings of the court upon the several exceptions to the admission and rejection of evidence were correct. The single question presented which requires examination is, whether the findings of the trial judge were supported by the evidence. On careful consideration of all the testimony, we are clearly of the opinion that the learned judge was justified in coming to the conclusion that the plaintiff failed to prove that the transfer in question was made with intent to hinder, delay and defraud the creditors of Josephine M. Mack. The judgment should be affirmed, with costs. Present - Van Brunt, P. J., Rumsey, Patterson, O'Brien and Ingraham, JJ.

John M. Bemis and Edward J. H. Tamsen, as Sheriff of the City and County of New York, Appellants, v. Collis P Huntington, Respondent.- Appeal dismissed, with ten dollars costs and disbursements.

PER CURIAM: We do not see how the appeal in this action can be entertained upon the notice of appeal as served. The notice of motion was addressed to the parties who had made claims upon the defendant, and some of these parties appeared in court. as is shown by the order from which the appeal is attempted to be taken. These parties, by virtue of this order, acquired certain rights; and it is sought to deprive them of those rights by the appeal taken herein. No notice

of appeal has been served upon them although they had become parties to the proceeding. The court cannot deprive them of the rights which they had secured, upon an appeal to which they are not parties. The appeal should be dismissed, with ten dollars costs and disbursements. Present Van Brunt, P. J., Williams, O'Brien, Ingraham and Parker, JJ.

Henry Diedel, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants. Judgment modified as directed in opinion and as modified. affirmed, without costs.-PER CURIAM: We think that the fee damage allowed is supported by the evidence. The rental damage, however, is too high. That of No. 375 Third avenue should be reduced to $72 a year, and of No. 513 Third avenue to $120 a year. The extra allowance contained in the judgment must be correspondingly reduced. The judgment should be modified accordingly and as thus modified, affirmed, without costs to either party. Present Van Brunt. P. J., Williams, O'Brien, Ingraham and Parker, JJ. William H Price, Respondent, v. The Ohio Falls Car Company, Appellant. - Judgment affirmed, with costs.

PER CURIAM: As to the plaintiff's right to recover a broker's commission for the sale of the cars alleged to have been brought about by his procurement, there was a clear cut question of fact, and the judge in his charge, in which every request submitted by the defendant was embodied, and to which no exception was taken, clearly presented the subject to the jury. We do not think that the verdict was so clearly against the law that a direction at the close of the case in defendant's favor would have been proper; and the question having been presented to the jury in an unexceptional charge we find no legal ground for interfering with the verdict. The only exception taken was to the ruling excluding the conversation between the defendant's president and one Matthews. This we have examined, but do not regard the ruling as erroneous. The judgment should, therefore, be affirmed, with costs. Present

Van Brunt, P. J., Rumsey, Patterson, O'Brien and Ingraham, JJ.

Max Augner v. The Mayor.-- Motion denied. The Breckenridge Company v. James D. Perkins et al. Motion denied.

Mary C. Bernard v. Bernard S. McKean - Motion denied.

Samuel Bacharach v. Manhattan Railway Company. Motion for resettlement granted. Colwell Lead Company v. Leander S. Sire.Motion denied.

Frederick L. Colwell v. Genevieve R. Colwell. -Motion denied.

Thomas N. Dwyer, Plaintiff. v. James Rorke, Defendant. Motion granted, unless the plaintiff within ten days after notice of the entry of the order hereon shall give a bond with two sureties in the penalty of $15.000, conditioned to pay to the defendant the whole or such part of the sum of $10,000 received by the plaintiff from the Central Trust Company, with interest thereon from the time of such receipt, as the defendant shall be finally adjudged to be entitled to. Charlotte W. Gregan v. Charles J. Buchanan.

Motion granted, with ten dollars costs. Charles Hutchinson v. Mary F. Root.— Motion for resettlement granted. Reuben Krause, Respondent, v.

Thomas

Hagan, Appellant. Impleaded, etc.-- Judgment affirmed by default, with costs. William Knauss v. G. Kreuger Brewing Company. Motion granted, with ten dollars costs.

Fourth DeparTMENT, MARCH TERM, 1897. [Vol. 15, App. Div.]

Edward B. Lawler v. William F. Lennon.-
Motion granted, with ten dollars costs.
The People of the State of New York ex rel.
The International Navigation Company, Re-
spondent, v. Edward P. Barker and Others,
as Commissioners of Taxes and Assessments
of the City of New York, Appellants.--Order
affirmed, with ten dollars costs and disburse-
ments. No opinion.

The People of the State of New York ex rel.
Eugene A. Masterson, Respondent, v. The
Board of Police, etc., of the City of New
York, Appellant.--Order affirmed. with ten
dollars costs and disbursements. No opinion.
Margaret A. Pooler v. Manhattan Railway
Company.- Motion granted, with ten dollars
costs.

Gould Roofing Company, Appellant, v. Peter L Ryan. Respondent.- Order affirmed, with ten dollars costs and disbursemeats. No opinion.

Charlotte W. Gregan v. Charles J. Buchanan.— Motion granted, with ten dollars costs. Mutual Life Insurance Company of New York v. Mary E. Bailey et al.; Same v. Richardson et al.; Same v. Whalen et al.- Motion denied.

John McHale, Respondent, v. Fidelity and Casualty Company, Appellant.-Motion denied, with ten dollars costs.

In the Matter of the Petition of Timothy Dono-
van.-- Motion granted.
Jeremiah T. Smith, Respondent, v. Joseph
Fleischman, Appellant, Impleaded with
The People of the State of New York ex rel Others. Order affirmed, with ten dollars
Patrick McElroy v. Theodore Roosevelt and costs and disbursements. No opinion.
Others.-- Motion for resettlement granted. Charles MacRae v. Charles W. Graham.--
The People of the State of New York ex rel. | Motion to amend notice of appeal granted
Commissioners of Public Charities v. Henry upon payment of ten dollars costs to the
D. Garrett. - Motion granted, with ten dol-1 respondent
lars costs.

Martin Reynolds v. Samuel Smyth et al.-Mo-
tion granted, with ten dollars costs.
The Seventy-third Street Building Company,
Appellant, v. Francis M Jencks, Respond-,
ent. Order affirmed, with ten dollars costs
and disbursements. No opinion.

In the Matter of Stanley M. Hatfield.- Motion
denied.

Willoughby Weston, as Trustee, Appellant, v.
Cornelia P. Goodrich et al., Respondents.-
Motion granted.

FOURTH DEPARTMENT, MARCH TERM, 1897.

Frank M. Carle, Appellant, v. Wellington W.
Kingsley, Respondent.--Motion denied, with-
out costs. All concurred.
Mary Kiefer, as Administratrix of John Kiefer,
Deceased, Respondent, v. The Grand Trunk
Railway Company of Canada, Appellant. -
Motion granted. All concurred.
Wellington W. Kingsley, Respondent, v. Frank
M.Carle, Appellant.--Motion denied, without
costs. All concurred.

In the Matter of Maria Berrus, an Alleged
Incompetent Person.- Motion to dismiss the
appeal granted, with ten dollars costs and
disbursements. All concurred.

In the Matter of Proving the Will of Nehemiah Denton, Deceased. Motion denied, without costs. All concurred.

In the Matter of the Appraisal of the Property of George B. Sherman, Deceased, under the Act in Relation to Taxable Transfers of Property --Order affirmed, with ten dollars costs and disbursements. All concurred. The People of the state of New York, Respondent, v. John F. Dorthy, Appellant. Motion to put case over the term granted.PER CURIAM: It appearing by the papers presented to the court upon an application to postpone the argument of the appeal in this case that there has been great delay in presenting to the court the appeal, both on the part of the prosecution and the defense, and the circumstances being such that it is apparent this record cannot be printed and the briefs prepared so as to properly pre

sent this case at the present term of the court, the notion to put over the term is granted. John N. Nichols v. Rilla E. Nichols.- Motion to dismiss the appeal granted, without costs. All concurred.

John N. Renninger. Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.- Motion granted and order amended as follows: Ordered, that that part of the order which denies a motion for a new trial made on a case and exceptions, on the ground that the verdict is contrary to the evidence, and that it is for excessive damages, affirmed; and that part of the order which denies a motion for a new trial on exceptions taken, and because the verdict is contrary to law, is, together with the judgment, reversed, and a new trial ordered, with costs to abide the event. All concurred, except Ward, J., dissenting. Johannah Scanlon. Respondent, v. The City of Watertown and John Ryan and Fred Avery Appellants.--Motion denied, with ten dollars costs. All concurred.

Anice S. Smith, as Administratrix, etc.. Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Motion denied, with ten dollars costs. All concurred.

Charles Tullar, Respondent, v. The Silver Metal Manufacturing Company, Appellant.- Motion denied. All concurred.

INDEX.

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ABUSE OF LEGAL PROCESS An action for abuse of legal process·
subpœna issued to coerce payment— the proceeding complained of need not have
been terminated.] If legal process is willfully made use of for a purpose not
justified by law, this is an abuse for which an action will lie; in such an
action it is not necessary that the plaintiff should allege or prove that the
proceeding complained of has been terminated.

In an action of this character it appeared that the defendant, who was an
attorney at law at Potsdam, entered into an agreement with Charles M.
Woodward, who resided at Gouverneur, distant about thirty miles from
Potsdam, under which the defendant was to procure accounts against divers
persons to be assigned to Woodward, who was to commence suits, in his
own name as plaintiff, in the Justice's Court at Gouverneur, and, at the time
of having the summons issued in these actions, was also to take out sub-
poenas and have them served upon the various defendants. For his co-ope-
ration in this undertaking Woodward received from the attorney, the present
defendant, a small payment.

One Dishaw, the plaintiff in the present action, who resided in the town
of Brasher, about twenty-four miles from Potsdam and nearly sixty miles
from Gouverneur, was indebted to a resident of Potsdam in the sum of
about twenty dollars. The claim was assigned to Woodward, who began an
action in the Justice's Court at Gouverneur, and had a summons and subpoena
issued against and served upon Dishaw, As the latter failed to appear
upon the return day of the summons, the attorney, the present defendant,
made an affidavit that the testimony of Dishaw was material to Woodward,
the plaintiff in the action in the Justice's Court, and upon proof that
Dishaw had not obeyed the subpœna, an attachment was issued against him;
he was brought before the justice upon the adjourned day, was fined for his
disobedience and was also charged with the expenses of the atachment. At
the same time Woodward, as assignee, recovered judgment against Dishaw,
who, although he was present, was not called as a witness.

While an execution against his person was still in the hands of a con-
stable unserved, Dishaw brought the present action.

Held, that the action could be maintained as one for an abuse of legal
process;

That from the evidence the jury might have found that the present
defendant caused the subpoena and the subsequent attachment to be issued,
not for the purpose of procuring the attendance of the present plaintiff
as a witness in the case, but under the idea that, as the claim was small,
he would pay it rather than submit to the discomfort and expense of
attending court at so great a distance from his residence;

That such a use of a subpoena was a perversion and abuse of the process
of the court, and was calculated to bring the administration of justice into
reproach and contempt. DISHAW . WADLEIGH

ACCIDENT- Resulting from negligence.
See NEGLIGENCE.

ACCOUNTING - By the trustees of a corporation.
See CORPORATION.

By executors and administrators.

See EXECUTOR AND ADMINISTRATOR.

Between partners.

See PARTNERSHIP.

Between principal and agent.

See PRINCIPAL AND AGENT.

PAGE.

205

ACKNOWLEDGMENT - An assignment of a bond and mortgage, acknowl-
edged before one of the assignees, is a nullity its record is invalid — a sub-
sequent assignee bound by the defect.

See RECORD.

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An action by a taxpayer stands in the same position before the court as

any other suit.

See TRIAL.

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ADVERSE POSSESSION - Title by.] Where the record title to premises
agreed to be conveyed under a contract for the conveyance of real estate is
defective, but the vendor claims that the defect has been cured by adverse
possession, the burden is on him to establish that fact.

Mere possession for twenty years is not sufficient to establish title by
adverse possession, as the possession of land is always presumed to be in
subordination to the legal title. MINER . HILTON..

AGENCY Generally.

See PRINCIPAL AND AGENT.

AGENT Of a corporation.
See CORPORATION.

Of an insurance company.

See INSURANCE.

ALTERATION OF INSTRUMENT

- Bills and notes an unauthorized

alteration by an agent of the payee, does not render a note coid.

See WALDORF . SIMPSON.

AMENDMENT - Of pleadings.

See PLEADING.

ANSWER:

See PLEADING.

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APPEAL Failure to move for a nonsuit or for the direction of a verdict.]
1. Where, upon the trial of an action, no motion is made for a nonsuit or for
the direction of a verdict for the defendants, they thereby concede that a
question of fact is presented for determination by the jury, and cannot upon
appeal be heard to say that the verdict is without evidence to support it.

STEINAU . SCHEUER... . . .

PAGE

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APPEAL- Continued.

PAGE.

2. The objection of double employment of a broker cannot be raised for the
first time upon appeal — what objection is insufficient to raise it.] Where in an
action by a broker against his principal to recover compensation for his serv-
ices the objection of double employment is not pleaded nor raised on the
trial, it cannot be raised for the first time upon appeal; it is not raised by a
motion made at the close of the plaintiff's case to dismiss the complaint upon
the ground that no cause of action has been made out. ABEL . DISBROW... 536
3. Not dismissed because of the absence of papers, not filed by the
respondent.] Where the certificate of the clerk shows that the appeal book
contains all the papers in an action which had been filed in the clerk's office,
the respondent is not entitled to have the appeal dismissed, because of the
absence from the appeal book of papers which it was his duty to, and which
he did not, file. ROSSKAM 7. CURTIS...

4. Remedy by motion to correct a judgment not following the decision.]
A motion to amend a judgment, which does not follow the decision made in
the action, is in accordance with proper practice, and the Appellate Division
may, upon an appeal from an order denying such a motion, grant the proper
relief. FOLEY. FOLEY...

5. Certificate that the case contains all the evidence.] Where there is
no certificate that the case contains all the evidence, the Appellate Division
is not in a position to determine whether there was error below in submitting
to the jury the question of the plaintiff's damages or that of the plain-
tiff's contributory negligence. CAVEN 2. CITY OF TROY..............................

Stay of proceedings — appeal by the elevated railroads from a judgment
for past damages, and enjoining the road unless fee damages be paid — security
required.

190

276

163

See ENO . N. Y. ELEVATED R. R. Co.

336

Bastardy proceedings upon an appeal from a filiation order — trial de
novo in the County Court-right of appeal to the Appellate Division.
See BOARD OF COMRS. . MCCLOSKEY....

41

When a party aggrieved is not confined to a remedy by appeal provided
by the statute.

See McKECHNIE BREWING Co. v. TRUSTEES...

139

Liquor Tax Law — appeal from an order directing a tax certificate to
issue restitution.

290

1

See PEOPLE EX REL. THOMAS 7. SACKETT

Judgment-error in calculating damages the remedy is by motion.
See LOY . METROPOLITAN ELEVATED RAILWAY CO..

ARMY Armorers and janitors of the National Guard they are not sub-
ject to civil service rules.] 1. Armorers and janitors of armories of the
National Guard belong to the military service of the State and are not sub-
ject to the civil service regulations. MATTER OF GOEDEL v. PALMER.......
Their compensation is a county charge] Prior to the adoption of
the Constitution which went into effect January 1, 1895, their compensation
was a county charge, and it still remains such. Id.

2.

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3. It need not be covered by the annual legislative appropriation.] The
provisions of section 179 of the Military Code, as amended by chapter 853 of
the Laws of 1896, declaring that their compensation shall be a county
charge upon the county in which such armory or arsenal is situated, and
shall be levied, collected and paid in the same manner as other county
charges are levied, collected and paid," does not conflict with the final clause
of section 3 of article XI of said Constitution, which section, after providing
for the organization of the militia, closes with the statement, and it shall
be the duty of the Legislature, at each session, to make sufficient appro-
priations for the maintenance thereof."

The object of section 3 of article XI was to require the maintenance of the
National Guard and to oblige the Legislature to make sufficient appropria-
tions for its maintenance, but there was no intention to forbid any moneys
being applied to the support of the militia other than those annually appro-
priated by the Legislature for that purpose. Id.

86

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