to the County Court should have been upon 5 Where the return of the Justice does not 6 When the County Court dismisses the ap- APPOINTMENT. 1 An appointment of excise commissioners un- 2 A resolution of the Common Council confirm- See NEW YORK MARINE COURT, 2; SUR- APPROPRIATION OF LAND BY STATE. ARBITRATION AND AWARD. 1 Where a matter is submitted to arbitration 38 2 An award of arbitrators that all the causes pendent on and connected with the other 1 An order of arrest may be granted in an ac- 2 Where one sells goods for another, the 3 The principal may waive the variance in the 4 An order of arrest in such case can be sus- 5 Where possession of property has been 6 A prima facie case for an order of arrest is Id. 1 An indictment for arson in the third degree 3 It is only when matters omitted in a sub-curtilage of an inhabited dwelling-house. The 338 ASSAULT AND BATTERY. 1 In an action for an assault and battery com- 1 An assessment on real estate in the city of 2 In an action to vacate an assessment, where 110 3 On the question of reducing the assessment 4 Where an assessment has been vacated and 5 Where the proceedings of assessors of taxes 6 In order to succeed in a proceeding to vacate 164 8 Where the Commissioners to assess the dam- 9 Property owners, whose lands are assessed 199 10 An allegation that the petition of property fraudulently made up and had appended to it 11 There is nothing in the Act of 1840 restrict- 12 Interest can only be charged from the time 354 ASSIGNMENT FOR BENEFIT OF CRED- ment of the person and not of property. The ITORS. Court will not grant an absolute order impris 1 An assignment made in insolvency proceed-oning a party for non-payment of costs, under ings which are void conveys no title to the assignee. Rockwell et al. v. McGovern et al. 158 2 The mention of a nominal consideration in such an assignment is not material where the other parts of the instrument show the intention to be to create a statutory trust, and to convey no other estate or interest than is required for that purpose. ld. 3 A general assignment for the benefit of creditors, without preferences, which confers authority upon the assignee to sell the property "to the best possible advantage," is valid on its face. Judson et al. v. Abeel et al. 221 this section. The Revised Statutes seem to intend that upon the return of an attachment, the party shall have an opportunity to excuse his misconduct. Morrison v. Lester. 211 5 Where, on motion to vacate an attachment, the moving affidavits completely controvert all the material allegations contained in the affidavit upon which the attachment was granted, the appellate Court cannot say there was error in vacating the attachment. Van Allen v. Sampson. 258 6 An affidavit to obtain an attachment under 635 of the Code of Civil Procedure must allege that plaintiff is entitled to the amount claimed, " over and above all counter-claims known to him;" an omission of such an allegation is fatal. Taylor v. Reed. 306 4 The only intent which will affect a general 5 A failure to give the statutory security 576 2 A sheriff cannot attach property in the hands of a carrier for which bills of lading have been issued, without giving the bond of indemnity required by the statute and the common law; where he does so his act is a trespass and he is liable to the carrier for the value of the goods. Campbell v. Conner. 203 3 Where the attachment is levied upon an execution in the hands of the sheriff, the notice showing the property levied upon, required by 325 of the Code, is unnecessary. Wehle v. Conner. 206 4 The phrase "attachment," as used in § 321 of the Code of Procedure, designates attach An order for the discharge of an attachment, granted upon an application under 687 of the Code of Civil Procedure, should state whether the discharge applies to the whole of the property attached, or to part only; and if so, to what part. It need not contain directions as to the manner of redelivery unless called for by special circumstances. Ellsworth v. Scott. 361 8 No action on attachment can lie till after judgment in reaching equitable assets. Conner v. Weber; Craig v. Weber. 457 3 Where a client has agreed with his attorney that the latter shall receive a percentage on the recovery, the attorney has a lien upon the judgment recovered by him for his costs and counsel fee, and to that extent he is to be regarded as an equitable assignee; but to nullify a settlement the proof of notice of such lien must be satisfactory. Wright v. Wright. 4 A notice of such lien contained in a stipulation to extend time to answer, which is not acted on, is not sufficient. Id. 97 5 Where, in an action by an attorney and counsellor for legal services rendered, the contained about sixty-eight items, nearly half account covered a period of seven years and of which were disbursements, and all but three of the remainder were statutory costs, and where the answer alleged full payment for all services rendered, and set up negligence and unskilfulness to defendant's damage by way of counter-claim, both the account and the issues should properly be brought before a jury. Bradley v. Eager. 330 6 A plaintiff in an action for a mere personal tort cannot give to his attorney or any one else an interest in the cause of action until judgment has been recovered. Coughlin v. The N. Y. C. & H. R. RR. Co. 562 7 Where an agreement to do so has been made between the plaintiff and his attorney, the Courts will not intervene to protect the attorney against a settlement made by his client. Id. 8 Where an attorney agrees to collect certain claims, for the amount of taxable costs in the action brought for that purpose, such costs to be deducted from the amount collected, and he dies while some of the actions are pending and undetermined, his estate is entitled to deduct the amount of taxable costs in such pending actions accruing up to the date of his death, unless it is shown that he was guilty of such negligence or want of skill as would defeat or reduce his claim for services rendered. Seymour et al. v. Cagger. See PRACTICE, 34; REFERENCE, 6, 9. AUCTIONEERS. See BAR, 2. BAILMENT. 595 10 When a private banker obtains from a bank an advance on his check on New York, and upon the same or the following day delivers securities to the bank, stating at the time that he has reason to fear his check will not be met. the transfer of the securities is a fraudulent preference under the Bankrupt Law. ld. 11 Holders of orders drawn by an insolvent prior to the commencement of proceedings in bankruptcy, payable out of a particular fund are entitled to be paid in preference to the 322 assignee. In re E. M. Smith. 12 The discharge in bankruptcy of an appellant, pending the appeal, will not release the sureties on the undertaking. Knapp et al. v. Anderson et al. 503 cannot become such by any subsequent act of the party with which it has no connection. Id. See EVIDENCE, 34; JUDGMENT, 4, 5; JuRISDICTION, 3, 4, 6, 7; MORTGAGE, 22; PLEADING, 5. BANKS. 1 The statute in relation to insolvent banks only undertakes to secure debts due from a bank to a savings bank for money deposited in the usual course of business and subject to drafts of the depositors to an amount not exceeding that authorized to be deposited by such statute. Rosenbach v. The M. & B. Bank. 164 2 Loans, whether on time, or on call, are not deposits within the statute. It cannot be changed into a deposit by reason of any want of authority in the managers to make the loans, or that it was made in violation of law. ld. See CHECKS, 4; CONSTITUTIONAL LAW, 14; RELEASE, 1; SAVINGS BANKS. BAR. 1 A former adjudication is a bar to a subsequent action upon the same transaction, although it be claimed that full relief in the former action was prevented by fraud or false evidence. Verplanck v. Van Buren et al. 74 2 A recovery by a purchaser of land at auction against the owner of such land for a breach of the contract of sale, a satisfaction of the judgment and surrender to such owner of the receipt for the deposit made on the sale, will operate as a bar to an action by the purchaser to recover such deposit from the auctioneer. Cockroft v. Muller et al. 502 See CIVIL DAMAGE ACT, 5; DEEDS, 15; RAILROAD COMPANIES, 23; STATUTE OF LIMITATIONS, 3. BASTARDY. BILLS OF LADING. 1 A clause in a bill of lading, providing that 2 A pledgee of a bill of lading is the special 2 The bridge of the Hudson River Bridge Company, at Albany, is not a toll bridge within the meaning of the statute. 1 R. S., 389, 1 The statement of the prosecutrix as to the § 6. Id. paternity of the child in a bastardy proceeding may be sufficiently corroborated by evi-3 dence of acts of familiarity between her and defendant, although such acts took place at a time before the child could have been begotten. Cole v. Manning. 329 2 Proceedings under the statute relating to bastards are civil proceedings. The People ex rel. Reynolds v. Oneida Co. Sessions. 495 3 A party may waive a statutory or even constitutional provision made in his favor in civil proceedings. ld. BEQUESTS. See WILLS. BILLS OF EXCHANGE. A bridge includes its approaches. Carpenter v. City of Cohoes. 227 4 One of two adjoining towns is under no liability to contribute towards the expense of a bridge built by the other over a stream dividing the two towns, unless there is a highway suitable for travel in the former town with which such bridge connects. A highway laid out over a marsh, but not opened or worked, is not sufficient to create a liability of contribution. Beckwith et al. v. Whalen. 286 |