53 feet from the schoolhouse, upon the piece of land unenclosed. In 1868 plaintiff fenced in the unenclosed land about the schoolhouse. Defendants destroyed the fence, for which trespass this action was brought. The defendants pleaded title to the locus iu quo. The Judge charged the jury that if the use of the unenclosed land for a play-ground, &c., was necessary in order to a reasonable enjoyment of the granted premises for school purposes, then the land passed to the district. Held, that if the play-ground was not included in the description of the premises granted, the grant could not be enlarged by the necessities, actual or supposed, of the grantee. The use of the word "appurtenences," will not vary the effect of the grant, or extend it so as to include other lands not parcel of the house and close mentioned, 2 Coke R., 516. A title to land will not pass by implication. 1 J. Ch. 281; 15 J. | R. 447; 8 B.&C., 146; 6 Bing. 150. A mere convenience is not sufficient to create or convey a right or easement, or impose burdens on lands other than those granted as incident to the grant. In all cases the question of necessity controls. 19 Ward, 509; Cro. Jac. 121; 5 Wend. 523; 18 N. J., 109; 4 Paige, 77; 1 Const. 96; 55 N. Y., 98; 1 Barb. Ch., 353; 24 Me. 276. The judgment below, however was confirmed on the ground that the plaintiff had shown no title to the locus in quo Judgment affirmed. Opinion by Allen, J. gate of the County of New York, directing payment to W. of $1,000, council fees, and $6,000 on settlement, a balance found to found to be due him, and $20,000 on account of his distributive share under said will. W. was one of the residuary legatees, and when the order appealed from was made, had recieved nothing on his share, although nearly all the other legatees had been paid out of the estate a sum as great, or greater in proportion to their respective interests, than was directed to be paid to W. The order is not objected to by any of the other executors except A., who was also a legatee. The will directed that until W. "has accounted for and settled the account charged against him for money advanced," &c., he was not to have any portion of the estate. The will had been proved twelve years. Before the order was made the executors, other than A., agreed with W. upon a settlement and adjustment of the testator's account against him, and his account against the testator, and there was found due to W., on the settlement, $6,000, as above stated. The good faith of this settlement was not impeached. Held, That the order was within the authority of the Surrogate to grant; that the right of W. to his legacy did not depend on the payment of the amount appearing to be charged against him on the books of deceased, but on his fairly accounting and settling; and this could be done as well by off-setting counter demands as by actual payment in money. A Surrogate has power to direct a payment to a legatee of a portion of his legacy in anticipation of the final accounting and distribution of the estate, where this can be done without prejudice to the rights of creditors or other legatees or persons interested. Judgment of general term, affirming order of Surrogate, affirmed. Opinion by Andrews, J. NEW YORK WEEKLY DIGEST. it was plaintiff's design to proceed upon the contract, further appears by the form VOL 1] MONDAY, NOVEMBER 22, 1875. [No. 15. of the summons, which stated that plain ACTION. N. Y. SUPREME COURT-GEN'L TERM, FIRST DEPT. tiff would take judgment for a stated sum of money on defendant's failure to answer. The allegation that defendant had Sheahan, Respt., v. Shanahan, Applt. wrongfully violated the agreement made, and had converted the proceeds of the Decided Oct. 29, 1875. sales did not change the action from one Summons not for relief. Form of on contract to one for a tort. It was judgment. an avowment of the breach of the agreeAppeal from a judgment recovered on ment in unnecessarily strong terms. trial at Circult. Plaintiff kept a General Immigration and Foreign Exchange office in New York City, and as a part of his business, sold passage tickets to and from foreign countries, and drafts on foreign banks. For the sake of convenience he had agencies established in the different parts of the country. Defendant had charge of one of them, and to him plaintiff was accustomed to send blank passage tickets and drafts for him to sell, filling in the name of the buyer, and for these, defendant was to account. To recover the money received by defendant from the sales of certain tickets and drafts not accounted for, this action was brought. These facts were set forth in the complaint. (Austin vs. Rawdon, 44, N. Y. 63). ARBITRATOR. N. Y. COURT OF APPEALS. This action was brought to set aside an arbitrator's award, on the ground that the decision of the arbitrator proceeded. upon a mistake of law. The arbitration was a full submission of all matters in The summons was for a money de-controversy, and of all claims and demand. mands between the parties. The complaint alleges the sale of these tickets and drafts and that defendant "has wrongfully converted the moneys arising from such sale as aforesaid to his own use, and has wholly neglected and refused to pay over the said moneys." Verdict for plaintiff. Held, That the decision of the arbitrator was final and conclusive, and could not be set aside by the Court for error in judgment either as to fact or law. The general rule is subject to these qualifications Awards may be set aside for palpable errors of fact like a miscalculaDefendant urged on appeal that the tion of figures, or for error of law where judgment was erronous because the com- the question of law is stated on the faco plaint was for the wrongful conversion of of the award, and it appears that the arbiproperty, while the cause of action estab-trator meant to decide according to the lished by the evidence was on contract. law, but did not; as in both these cases the Held, That the foundation of plain-award is not what the arbitrators themtiff's claim was an express contract al-selves intended. leged in direct terms to have been made. Arbitrators, unless restricted by the between himself and defendant, and that submission, may disregard strict rules of law, or evidence, or decide according to Held, That even if no notice had been their views of equity; and a party alleging published, this assessment could not error of law, must be able to show, by legally be vacated, for the proof produced the award itself, that the arbitrator in- at the hearing contained an admission tended to decide according to law, but that the contract had been certified by has mistaken it, and that, except for this the Commissioners to be free from fraud, mistake, his award would have been and that certificate corrected the irregudifferent. larity arising from an omission to publish If an arbitrator refuses to hear com- the resolution, and ratified and confirmpetent evidence on the merits, his awarded the same (2 vol., Laws 1872, 1412, § 1). will be set aside; but if, acting upon a mistaken construction of a rule adopted by consent to govern the arbitration, he refuses to receive evidence tending to show bias or prejudice on the part of a witness, this is not sufficient cause for setting aside the award. Judgment of General Term, affirming judgment of Special Term, affirmed. Opinion by Andrews, J. ASSESSMENT. N. Y. SUPREME COURT-GENL TERM, In the matter of the Petition of Peugnet Publication. Certificate of commis- Appeal from an order vacating an as sessment. Petitioner was the owner of property which had been assessed for the expense of repaving Fortieth street, between Third and Madison avenues. Notice of a resolution directing the work, was not published for three days before its passage by either Board of the Common Council in the paper which had been designated for that purpose. The contract under this resolution had however been certified by the Commissioners to be free from fraud. Because of the failure to advertise as above, petitioner seeks to vacato this assessment. On appeal. The applicant's property must have been benefited by the improvements, and under these provisions is bound to bear its share of the expense. Order below should be reversed, and an order entered directing a further hearing. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring. ASSESSMENT-RELIGIOUS N. Y. SUPREME COURT-GENL TERM, In the matter of the petition of The City and State Taxation. Exemption from taxation, does not exempt from assessments for improvements. Publication. Valuation. Appeals from orders vacating assessments upon the property of the several petitioners. The facts set forth in the petitions are in the main substantially the same. The petitioners are religious corporations owning property on the several streets, for paving which they are assessed, and claim that being religious corporations they are exempt from taxation (1 R. S., 5th Ed., 906, § 5, Sub. 3); that under laws 1840, ch. 326, they cannot be assessed for more than half of the assessment books, and that their property is marked exempt upon the tax assessor's books. value of their property as appears by the irregularity, cause sufficient for vacating these assessments. Laws of 1874, 367 § 7. All the reasons which lead to this conclusion, apply in the case of the Church of the Holy Sepulchre. In the case of the Harlem Presbyterian Church it further appeared that the resolution and ordinances under which the improvement was made had not been published, as also in case of the Second avenue Methodist Church, which further alleged that in its case the ordinances had not been confirmed. The case of the 2d ave. Methodist Church differs from the others only in that the assessment was confirmed before the enactment of the law of 1874. But the law of 1872, 1416 § 7, as well as the law of 1874, corrects and cures the nonpublication and non-valuation complained The assessments were vacated in the of. Held, That the exemption of religious corporations from taxation on their property used for the purpose of worship, related only to taxes, properly so called, which were imposed for the support of the City and State governments, and not to assessments made for local improvements, which enhanced the value of the property in the vicinity where they were made; for such expenses the law expressly provides that all property benefitted. thereby shall be assessed, (Davies' Laws of the City of N. Y., 419 § 16, 596 § 1.) Such property could not properly be included in the tax roll, or valued by the officers making it, and consequently is not within Sec. 7 of the Act of 1840. That section merely prohibits assessing property for more than half of its valuation, but did not exempt such property from the liability to assessment for improvements, which previous acts had imposed upon it; it related only to the property which was taxable for the ordinary purposes of government, and could therefore be included in the assessment roll. For these reasons, the omission of the valuation in this case does not render the assessment on petitioners' property irregular. It was the duty of the Commissioners to assess it, notwithstanding the omission to value it. Nor was the failure to publish the resolution and ordinances, or any technical Orders reversed, and orders entered denying motions. Opinion by Daniels, J.; Davis, P. J and Brady, J. concurring. ASSIGNMENT. SUPREME COURT OF PENNSYLVANIA. LEVY V. LEVY. Decided Oct. 11, 1875. Assignment of chose in action affects the Error to the Court of Common Pleas of The plaintiffs sued for a certain sum due them as original contracting parties, and, also, for a certain sum due to other parties, who had assigned their debt to them. The defendants plead payment of the original debt, and that the plaintiffs could not sue in their own name on the debt assigned. In Pennsylvania the assignment of a chose in action passes only the equitable title, and suit must be brought in the name of the legal owner, except when the assignor shall have died before the suit is brought, and no letters of administration have been taken out upon his estate; or when the assignor has left the State, or cannot be found. The assignment was made in the State of New York, and by the Code thereof (Sec. 111) "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in ceived the assets within two months section 131, but this section shall not be afterwards. deemed to authorize the assignment of a thing in action not arising out of a contract." The Court below held with the defendant on this, the only point in dispute, and, On appeal. Held, 1 Error: That the lex loci con tractus governs in determining the right of the parties. The lex fori governs the remedy only. Therefore, the assignment in New York having passed the legal title there, the legal title here is in the assignee. 2. Whatever doubt there may have been as to assignability of a chose in action under Sec. 111 of the New York Code, that doubt has been clearly resolved by the decision of the New York courts in favor of the right to assign, and we are controlled by that construction of Sec. 111 of the Code of that State. The order discharging the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, is reversed, and set aside; and it is now ordered that the record be re mitted to the Court below, with directions to enter judgment against the defendant for such sum as to right and justice belong. Opinion by Paxson, J. BANKRUPTCY. U. S. DISTRICT COURT, KANSAS. Augustine, assignee v. McFarland, et al. 13 N. B. R. Rep. pp 7-14. Assignee estopped from attacking foreclosure sale in a State court, where he has appeared in the action. Bill to restrain the defendants from taking a confirmation of a sale of real estate of the bankrupt. John M. Hodge was adjudged a bankrupt in December, 1874, and the complainant was elected assignee and re In August 1873, the bankrupt and his wife had executed to James B. Shane and T. C. Henry a mortgage on certain real estate to secure two promissory notes. There was, also, a second mortgage on the property. In 1873, the defendant, McFarland, who owned one of the notes secured by the first mortgage, without the authority of the Bankrupt Court, commenced proceedings in the State Court to foreclose, and he made Augustine, the complainant, who owned the other note, a party as an individual, and also as assignee. He also made the subsequent mortgagee, and other parties, indorsers on the notes, defendants. Augustine appeared in his individual capacity and filed an answer setting up his claim on his note, and he, also, entered his appearance as assignee, and waived the issuing of process, but filed jection to the proceedings. In Decemno answer as assignee, nor made any ob made, and an order granted directing the sale of the premises. There were subsequently several other orders of sale issued on the decree, and several appraisements had, each being less than the preceding one, when it was finally sold to T. C. Henry, in March, 1875, for $860. The mortgages exceeded $1,500. ber, 1873, a decree of foreclosure was After all these proceedings the assignee filed this bill. Hela Foster J. The assignee having voluntarily appeared in the case and submitted to the jurisdiction of the State court, and having permitted the property to be repeatedly appraised and offered for sale without objection, he is estopped from proceeding against the property. BANKRUPTCY. U. S. DISTRICT COURT OF INDIANA. Lamb, Assignee, v. Lamb. 13 N. B. R. Rep., pp. 17-22. |