FIRST DEPARTMENT, MARCH TERM, 1899. [Vol. 38. App. Div.]
isdiction of this court, and has given a bond
in the sum of $8,000, to which recourse can
probably be had only after an accounting in
this court. Settle order on notice.
Emma B. Leoni, Respondent, v. New York
Elevated Railway Company, Appellant.
Judgment affirmed, with costs. No opinion.
Eugene M. Jerome and Daniel Nason, as Ex-
ecutors, etc,, of Julia G. Jerome, Deceased,
v. William S. Fanshawe.- Exceptions over-
ruled and judgment ordered on the verdict.
with costs. No opinion.
Samuel Rouse, Respondent, v. Frances V. N.
Burling, Appellant, Impleaded with Others
- Order affirmed, with ten dollars costs and
disbursements. No opinion.
Theodore Moss, Respondent, v. Benjamin P.
Cheney, Appellant.-Order affirmed, with
ten dollars costs and disbursements. No
opinion.
Henry J. Weber v. Charles C. Brown.- Motion
granted, with ten dollars costs.
Henry H. Lyman, as State Commissioner of
Excise of the State of New York, v. Unity
League and American Surety Company of
New York. Motion denied, with ten dollars
The Fire Department of the City of New York,
Respondent, v. George A. Stanton, Appel-
lant. Judgment affirmed, with costs, on
opinion delivered on previous appeal. (28
App. Div. 334.)
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Gilbert M. Husted v. David Thomson.--Motion
denied.
James Lawlor v. Magnolia Metal Company.-
Motion granted to the extent and upon the
terms stated in memorandum.
The People of the State of New York ex rel.
John W. Keller v. George Shrady-- Motion
granted on payment of ten dollars costs.
Noah B. Shute v. William W. Farmer.-Motion
denied on payment of ten dollars costs.
Harry S. Barnes and Another v. Thomas W.
Cushing, Impleaded.- Motion denied on pay-
ment of ten dollars costs.
In the Matter of Twelfth Ward Park; Re Del-
laglio et al.- Motion to confirm report
granted. Evidence of appointment of guar-
dian and of security given must be furnished
before entry of order.
Henry C. Field and Others, Respondents, v.
Eberhard Faber, Appellant.-Judgment af-
firmed, with costs. No opinion.
The Colwell Lead Company. Respondent, v.
William L. Stone, Jr., Appellant.-Judgment
affirmed, with costs. No opinion.
Caroline Weil, Appellant, v. The Mayor, Alder-
men and Commonalty of the City of New
York, Respondent. Judgment affirmed.
with costs, on the authority of Beltz v. City
of Yonkers (148 N. Y. 67).
William H. Davol and Others, Appellants, v.
Joseph A. Davis, Respondent.- Judgment
affirmed, with costs. No opinion.
Hugh Langan and Andrew Langan, Compos-
ing the Firm of Langan Brothers, Appel-
lants, v. Walter T. Thorne, Respondent, Im-
pleaded with Others.- Judgment affirmed,
with costs. No opinion.
Pierre V. A. Brett, Respondent, v. Martin C.
Ebel and William G. Brett, Appellants.-
Judgment affirmed, with costs, on the opin-
ion on previous appeal. (29 App. Div. 256.)
The Emerald and Hiddenite Mining Company,
Appellant, v. Lippman Tannenbaum, Re-Tyler Brigham, Respondent, v. Eugene Zaiss
spondent, Impleaded with Another.- Order
affirmed, with ten dollars costs and disburse-
ments. No opinion.
38 640 The People of the State of New York ex rel.
159a 570
George W. Hauscheld, Appellant, v. Thomas
J. Dunn and Another, Respondents.- Order
affirmed, with ten dollars costs and disburse-
ments, for the reasons given in Hauscheld v.
Hauscheld (33 App. Div. 296).
Francis T. Walton, Respondent, v. Robert A.
Chesebrough, Appellant.-Order affirmed,
with ten dollars costs and disbursements.
No opinion.
John H. Wiemers, Appellant, v. John F.
Becker and Becker Paper Box Company,
Respondents.- - Order affirmed, with ten dol-
lars costs and disbursements. No opinion.
In the Matter of Rose Ferrigan.- Motions
granted, with ten dollars costs of one
motion.
James Ertheiler v. Jacob Bernheim and Others.
-Motion denied, with ten dollars costs.
and Others, Appellants.- Order reversed,
with ten dollars costs and disbursements,
and motion granted, with ten dollars costs, on
the authority of Tayler v. American Ribbon
Company (ante, p. 144).
Railway Advertising Company, Respondent,
v. Frank J. Sprague, Appellant, Impleaded
with Others.- Order affirmed, with ten dol-
lars costs and disbursements. No opinion.
Abe Stein Company v. Julius Robertson.
Motion for leave to file supplemental brief
granted.
In the Matter of Twelfth Ward Park; In re
Mulieri. Motion denied.
The People of the State of New York ex rel.
John S. Dulmer v. Charles F. MacLean and
Others.- Motion granted, with ten dollars
costs.
Ella Testera v. Edward J. H. Tamsen, a
Sheriff, etc.-Motion granted, with ten dol.
lars costs.
ABATEMENT- Plea in abatement -action brought against a corporation
by its president for an accounting and for the amount found to be due him —
when not a bar to a subsequent action by the corporation for an accounting by
the president for his acts.] 1. An action brought against a corporation by the
president thereof, demanding an accounting, and that the corporation be
required to pay to the plaintiff the amount found due to him by it upon
such accounting, which sum was stated in the complaint to be $5,000, is not
a bar to an action in equity subsequently commenced by the corporation
against the plaintiff in the former action to compel an accounting by the lat
ter for his acts while president of the corporation, it not being necessary
that the former action should proceed further than is essential to reach a
determination that the plaintiff in that action is not entitled to recover any
sum of the defendant therein, in which action the defendant would not be
entitled to an affirmative judgment in its favor, unless it joined issue therein
and by counterclaim sought to recover any sum to which it might show itself
entitled. CONSOLIDATED FRUIT JAR Co. v. WISNER
2. Plea of the pendency of an action at law in an equity suit.] Quare,
whether the pendency of an action at law can be pleaded in abatement of a
suit in equity. Id.
Defect of parties in a creditor's suit the death of the judgment debtor
does not prevent the hearing of a demurrer alleging it.
See FIRST NATIONAL BANK v. WRIGHT.
ACCEPTANCE- Of negotiable paper.
See BILLS AND NOTES.
ACCIDENT - Resulting from negligence.
See NEGLIGENCE.
ACCOUNTING — By executors and administrators.
See EXECUTOR AND ADMINISTRATOR.
Between partners.
See PARTNERSHIP.
ACTION- Abatement of.
See ABATEMENT.
Issuing of attachments in.
See ATTACHMENT.
In forma pauperisan agreement by the plaintiff to pay his attorney
is fatal to the right to continue it.
See ATTORNEY AND CLIENT.
Relating to corporations generally.
See CORPORATION.
In which an injunction is obtained.
See INJUNCTION.
Time for commencing.
See LIMITATION OF ACTION.
Misjoinder of causes of action.
See MISJOINDER.
Relating to municipal corporations.
See MUNICIPAL CORPORATION.
APP. DIV.- VOL. XXXVIII.
Proceedings on the trial of.
See TRIAL.
See EXECUTOR AND ADMINISTRATOR.
ADMISSION - Effect of admissions, made by one while acting as an attorney,
against him personally.
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See LECOUR v. IMPORTERS & TRADERS' NAT. BANK
Admissions testified to as made by an agent may be explained by him.
See NATIONAL LIFE ASSOCIATION . THOMPSON.
ADVERSE POSSESSION When it does not begin to run under a warranty
deed from one of two tenants in common.] 1. The fact that a grantee of land
takes possession under a deed containing covenants of seisin and warranty of
the whole title, by which one tenant in common of the premises conveys in
terms all the premises and not simply his undivided interest therein, is not
of itself sufficient to begin an adverse possession, such as will oust the other
co-tenant. Before that can be begun, there must be notice in fact to the
co-tenant that the adverse claim is made, or there must be such open and
public acts by the adverse claimant as will make his possession so visible,
hostile, exclusive and notorious that notice on the part of the co-tenant of
the claim adverse to his right may fairly be presumed.
Acts of user not inconsistent with the right of the other co-tenant.]
Where such grantee, a corporation, has at a date not earlier than 1859,
inclosed the lots, for purposes of cultivation, by a fence which also included
other lands to which it alone had title, there being nothing from which it can
be inferred that those particular premises were put to any use to which any
co-tenant might not have put them, or were devoted to any purpose incon-
sistent with the right of any one who had title to them, in connection with
the corporation, such adverse possession on the part of the corporation can-
not be said to have ripened into a marketable title, which a purchaser
should be compelled to accept under a contract of sale made in 1897. Id.
Ejectment-maintainable by one of several joint tenants or tenants in
common-proof of seizin or the right of possession, rather than actual posses
sion within twenty years, is sufficient description which does not convey to the
middle of an abutting road.
APPEAL- Motion - its consideration on appeal limited to the grounds stated
below.] 1. Where counsel, upon making a motion, specially calls attention
to the point he desires the court to pass upon, he cannot, under cover of the
exception to the denial of the motion, urge a different point upon appeal.
Where upon the trial of an action brought against Frederick L. Colver
personally, upon a contract of employment signed Frank Leslie's Publish-
ing House, Frederick L. Colver, Manager," the counsel for the defendant,
in making a motion to,dismiss the complaint upon the ground that it does not
state facts sufficient to constitute a cause of action, urges the point that
the question as to whether the services rendered by the plaintiff under the
contract mentioned in the complaint were satisfactory or unsatisfactory, is
one exclusively for defendant, the employer, and not to be passed upon
by court or jury," and makes no claim that the action was not properly
brought against the defendant, the defendant is estopped from asserting
upon appeal that he is not the proper party to be charged with damages
in the action. SUMMERS . COLVER..
What is an "intermediate order" reviewable on an appeal from a judg
ment.] An order granting a motion for a bill of particulars cannot be
reviewed as an "intermediate order" on an appeal from a judgment entered
upon an order striking out the defendant's answer.
The "intermediate order" mentioned in section 1316 of the Code of Civil
Procedure, which may be brought up for review on an appeal from a final judg-
ment, is such an order as, if reversed, would take away the foundation of
the judgment or make the trial or the judgment entered invalid or without
support. RAFF . KOSTER, BIAL & Co
3. A bill of particulars is an extension of the pleading.] A bill of par-
ticulars is simply an extension of the pleading in relation to which it is
ordered. Id.
4. - A judgment falls with the order on which it is based.] Where an
order striking out an amended answer and the order awarding the plaintiffs
judgment upon such first-mentioned order are reversed, the judgment rest-
ing upon such orders will also be reversed. Id.
5. New trial in furtherance of justice.] On an appeal from an order
denying a motion for a new trial, the Appellate Division may grant a new
trial in furtherance of justice, although there is no exception sufficient to
present the question of legal error. VOGEDES. BEAKES...
Amendment of the record nunc pro tunc on an application to the
Supreme Court, after a final decision in the Court of Appeals, not allowed.
See DRAKE v. NEW YORK IRON MINE...
Where a motion to resettle a case is made on a private stenographer's
minutes the order must recite, although the court rejects, them.
See DEUTERMANN v. POLLOCK..
A remittitur from the Court of Appeals examined· -the judgment of the
Supreme Court entered thereon is not conclusive.
See MATTER OF EDSON...
The decision of the court below on conflicting evidence, when not dis-
turbed on appeal.
See BAIRD v. SHEEHAN..
Extra allowance granted under an agreement to waive it if no appeal be
See THAMES LOAN & TRUST CO. v. HAGEMEYER.
APPEARANCE- A stipulation extending the time to answer, signed by an
attorney as defendant's attorney," does not prevent the service of the answer
by another attorney.
ARBITRATION - Building contract-construction of an agreement abro-
gating it and providing that materials furnished be paid for effect of an agree-
ment to submit “all questions relative to this contract” to an architect award
ineffective, because indefinite.
ARCHITECT- Effect of an agreement to submit all questions relative to
this contract" to an architect-award ineffective, because indefinite.
ASSESSMENT - Of damages.
See DAMAGES.
For the purposes of taxation.
See TAX.
ASSETS - Marshaling of.
See DEBTOR AND CREDITOR.
General assignment, with preferences, by a foreign corpora
- its calidity in the State of New York sustained.] 1. A general assign-
ment, executed by a corporation organized under the laws of another State,
by which it conveys all its property to an assignee, in trust for the benefit
of its creditors, certain of whom are preferred under the terms of the assign-
ment, will be recognized as a valid transfer of a claim existing against
a domestic corporation organized under the laws of the State of New York,
which has commenced proceedings for its voluntary dissolution; and a
receiver appointed in such proceedings will be directed to pay over the
amount of such claim to a trustee appointed, by the court of the State in
which such foreign corporation was domiciled, in place of the deceased
assignee named in such instrument of assignment.
In the absence of proof that, by the laws of the foreign State, the domi-
eile of such corporation, such assignment was not a valid, legal transfer of
the property of the assignor, the rules of the common law will be deemed
to prevail, and the preference of certain creditors given by the assign-
ment will not invalidate it.
Such an assignment by a foreign corporation which does not transact
business within the State of New York, does not contravene the statutory
law of the State of New York, prohibiting transfers of property by an
insolvent corporation with an intent to give a preference to particular cred-
itors, nor is it repugnant to its general policy.
Semble, that the Legislature of the State of New York has no power to
restrict the authority of a foreign corporation not transacting business within
the State of New York, and prevent it from exercising the power vested in
it by the law of the State of its domicile.
MATTER OF HULBERT BROS. & Co....
2. Eridence of public policy.] To justify the court in refusing to
recognize and enforce in the State of New York a transfer of property,
made by a foreign corporation, and valid in the State of its domicile, as
opposed to the policy of the State of New York, there must be a clear decla-
ration that the State of New York has adopted a policy, in relation to the
transfer of property within that State, which would be interfered with
by the recognition of the right of the foreign corporation to exercise its
powers, authorized by the State which created it and in which the act of
transfer was executed.
To establish the existence of such a public policy something more is
required than proof that domestic corporations are prohibited from making
such a transfer. Id.
3. Proof of execution of an assignment by a foreign corporation.] Where
it appears by the record that an assignment was properly acknowledged on
behalf of a corporation, and that the instrument was signed and sealed by
authority of its board of directors, and that an adjudication was had by a
court of competent jurisdiction of the domicile of the corporation, to the
effect that, by this deed of trust, the corporation conveyed to the assignee,
as trustee, all of its assets, real and personal, wherever situated, the execu
tion of the instrument is properly established. Id.
Assignment by a corporation for the benefit of creditors — not invalid
because of a defective certificate of acknowledgment where the instrument was in
fact acknowledged.] A general assignment for the benefit of creditors, exe-
cuted under chapter 466 of the Laws of 1877, is not rendered invalid because
the certificate of acknowledgment does not show a proper acknowledgment
by the assignor, where it is proved that the instrument was in fact duly
acknowledged, as required by law.
LINDERMAN v. HASTINGS CARD & PAPER Co......
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