not disputed by the reply cannot be raised | such questions unless the case shows that
for the first time on appeal.-Penny v.
Huebener, (Sup.) 641.

it contains all the evidence given on the
trial, which must affirmatively appear, as
the court will not assume that all the ma-
terial evidence is included.-Averill v.
Hurd, (Sup.) 166.

Harmless error.

Review-Discretion of trial court.
15. When an appeal from a judgment
and an order denying a new trial is dis-
missed as to the judgment only, for not be-
ing taken in time, such dismissal is not
24. A direction, in an order postponing a
necessarily followed by the reversal of an trial, that plaintiff pay costs which had
order staying proceedings on the judg-been previously awarded against him, is
ment pending the appeal, the trial judge harmless, and cannot be reviewed on ap-
having ordered such stay, in the exercise peal, where the time for appeal from the
of his discretion, to prevent threatened original orders allowing the costs has ex-
proceedings to enforce such judgment.-pired.-Myers v. Myers, (Sup.) 465.
Harnett v. Westcott, (Super. Ct. N. Y.) 10.
16. Under Code Civil Proc. N. Y. § 1187,
authorizing the submission of facts spe-
cially to the jury, such submission is dis-
cretionary, and not reviewable.-Hays v.
Moody, (Čity Ct. N. Y.) 385.

Weight and sufficiency of evi-
dence.

17. In an action on a contract for build-
ing a house, where defendant introduces
evidence that the work was defectively
done, but plaintiff introduces evidence
that there was a substantial performance,
and that defendant accepted the building,
the finding of a waiver by the referee is
not unsupported by evidence, and cannot
be disturbed, where the case does not con-
tain all the evidence.-Curtice v. West,
(Sup.) 507.

18. Where the credibility of most of the
witnesses was attacked, some of them be-
ing contradicted by other witnesses, and
others by the circumstances under which
they claimed to have acquired their infor-
mation, this court, on appeal, will not at-
tempt to readjust the facts from the evi-
dence on the record.-Curtis v. Hart, (Sup.)
462.

19. Where the evidence is conflicting,
and the issues are clearly presented in the
charge of the judge, and a motion for a
new trial is overruled by him, the verdict
will not be disturbed.-Decker v. Man-
hattan Ry. Co., (Sup.) 302.

20. The evidence being conflicting, the
court will not set aside the verdict as con-
trary to the evidence.-In re Bull, (C. P.
N. Y.) 52.

21. The finding of the trial court on a
disputed question of fact will not be
reviewed on appeal.-Penny v. Huebener,
(Sup.) 641.

22. The finding of fact of a referee must
prevail on appeal, where the opinion is in
conflict with it.-Powers v. Savin, (Sup.)
835.

25. Testimony clearly inadmissible, and
tending to sustain plaintiff's theory of
the case, and also to impeach the credit of
one of defendants' principal witnesses,
must be held prejudicial.-Doty v. Stan-
ton, (Sup.) 417.

Objections to evidence.

26. Where parties agreed at a trial that
they would not object to evidence taken
the return, and one party has himself, un-
under a commission, except as noted on
der such agreement, introduced illegal tes-
timony, he will not be allowed, on appeal,
to object to the incompetency of the testi-
mony of the adverse party admitted under
said agreement.-In re Bull, (C. P. N. Y.)

52.

Effect of appeal.

27. Code Civil Proc. § 1330, providing
that, "if the appeal is taken from a judg
ment or order directing the execution of a
conveyance or other instrument, it does
not stay the execution of the judgment or
order until the instrument is executed and
deposited with the clerk with whom the
judgment or order is entered, to abide the
direction of the appellate court;" and sec-
tion 1352, providing that, on appeal from
final judgment, appellant may give secu-
rity to stay execution, in which case exe-
cution of the judgment is stayed.-apply
to appeals from a final judgment only, and
the execution and delivery of a check to
the county clerk, which defendants were
ordered to execute and deliver to plain-
tiff, does not stay execution of the order.-
Hatton v. McFaddin, (Sup.) 194.
Decision-Dismissal.

vides for dismissal of an appeal from a
28. Code Civil Proc. N. Y. § 3062, pro-
justice's court only in case the action is
not brought to a hearing before the end of
tion 3063 provides that the judgment may
the second term after appeal taken. Sec-
be either affirmed or reversed in whole or
dismissed, on the ground that the justice
in part. Held, that such appeal cannot be
had no jurisdiction to enter judgment at
the time he entered it.-Kuklo v. Kleis,

Matters not apparent of record.
23. Since Code Civil Proc. N. Y. § 992,
forbids exceptions to rulings on questions
of fact, the general term will not review | (Sup.) 358.

Taxation of legacies, see Descent and Dis He carried on the business for seven years,
tribution, 3-7.

firm; that a clerk of the firm was placed | in charge, and the assignor and his wife were employed about the premises; that a part of the property was consigned to and sold by the firm, and another part was stored, under its control, which latter part was sold by, and the price paid to, the assignee's partner; that H. gave no attention to the business, and made no entries respecting it in his books, and alleged that he repaid the partner in bills, instead of a check, because of convenience, but paid other debts by check,-sufficiently shows that the assignee's firm was the real purchaser.-Id.

ASSOCIATIONS.

See Benevolent Societies.

Liability for attorney's fees, see Attorney and Client, 1.

Expulsion of member.

4. A firm preferred D. for all moneys due or to become due to him from it, and also preferred appellant for the amount due or to become due on the firm's note to it, and provided that, in case of a deficiency of assets, appellant and D. should be paid pro 1. The constitution of a voluntary assorata. At the time of the assignment appel- ciation provided that a member accused of lant held, as collateral to the firm's note, a a breach of contract, with another memnote executed by D. to the firm for its ac-ber, should be summoned before the comcommodation. He'd, that appellant was not entitled to a preference, in addition to the amount due on the firm's note, for the amount due by D. on the accommodation note.-Rubens v. Drake, (Sup.) 829.

5. A provision in an assignment that the assignee "shall discharge and pay in full all debts due or to become due for goods sold to the party of the first part in said grocery and feed business, the particular items of which the party of the first part is now unable to mention," is not so indefinite in identifying the preferred creditors as to invalidate the assignment. Maack v. Maack, (Sup.) 506.

Fraud.

plaint committee, who should investigate the case, and if the committee rendered a decision establishing a money difference between the parties it should, upon notice, stand as a claim against the party, and be paid within 48 hours, or taken on appeal to the arbitration committee. A failure to pay or appeal subjected the party in default to suspension. Plaintiff failed to appeal or pay the amount found due from him by the complaint committee for a breach of contract for the future delivery of stock, and was suspended. Thereupon he brought action to restrain the enforcement of his suspension. Held that, to render the contracts under which plaintiff was found indebted illegal and void, under statute prohibiting betting and gaming, it must appear affirmatively that they were entered into as gaming contracts, and not as real transactions for the purchase of property, and, when the intent is not made to appear, a contract for the future sale or delivery of stock owned by the seller at the time is a valid agreement, capable of being enforced.

6. Concealment of property is not sufficiently shown by the assignor's testimony that goods of the value of $700 were in his house at the time of the assignment, and were never delivered to the assignee, but were sold to various people in the same city, of whom he cannot name one, or of whom he afterwards names one, but cannot give the circumstances, or the quantity-Lewis v. Wilson, (Sup.) 806. sold to him; nor by the testimony of his wife that she retained the goods for her wages; the assignee testifying that he procured goods from the house, and, on examination, found no others; and it further appearing that the assignor attempted to borrow money to relieve his necessities, which necessities were the alleged cause for selling the goods.-Smith v. White, (Sup.) 855. 7. In replevin against an assignee for the benefit of creditors, for goods purchased on fraudulent representations by the assignor as to his solvency, judgments recovered after the assignment are not evidence of insolvency at the time of the purchase, but their admission is harmless when it ap

2. The question whether the contracts were speculative or fictitious, which article 19 of the constitution forbade members to enter into, should have been shown to the complaint committee, before whom plaintiff was summoned, who by the constitution had full power to determine the question. The member must avail himself of all his rights provided for in the constitution before he can appeal to the courts.Id.

Pleading.

ASSUMPSIT.

1. A complaint alleging that defendant received certain money, subject to plain

tiff's order by check or draft; that plain- | operative Life & Accident Ass'n of the tiff's draft was returned unpaid after de- United States, (Sup.) 864. mand; that afterwards the draft was forwarded, and made payable to one C., who presented the same for payment, whereupon defendant agreed to pay it, provided certains persons would make affidavit as to the special deposit, which affidavits were made, but defendant neglected and refused to pay the draft; and that said sum still remains due plaintiff for money so received, —is good on general demurrer.-National Temperance Society & Publication House v. Anderson, (Super. Ct. Buf.) 49. Evidence.

4. An affidavit for attachment, made by a son of plaintiff, which states that plaintiff is absent from the state, and that he is entitled to recover for breach of contract, but which does not show that the affiant, as agent or otherwise, personally conducted the business out of which the claim arises, nor disclose any circumstance tending to show that he had knowledge enabling him to state the facts alleged positively and of his own knowledge, is insufficient. -McVicker v. Campanini, (Sup.) 577.

5. An attachment issued on an affidavit 2. Evidence that plaintiff did work to a alleging that defendant made certain repcertain value on a building at the order of resentations to plaintiff, who, relying theredefendant's son, then in his employ; that on, sold and delivered goods, and that, two defendant stated that he had orders to re- fendant assigned all his property without days after plaintiff's claim became due, depair the building, and would send his son consideration, should be vacated, there beto attend to it; and that, when the bill was presented, defendant said it was right, and ing no allegation or proof that the transfer promised to pay it, makes out a prima was fraudulent; though the affidavit alfacie case in an action for its value, and the leges that the debt to plaintiff was frauduownership of the building is immaterial.lently contracted.-Grosvenor v. Sickle, Boswell v. Pettit, (City Ct. N. Y ) 340. (Sup.) 40: Vietor v. Kayton, (Sup.) 42.

ATTACHMENT.

Property subject to.

1. Code Civil Proc. N. Y. § 647, providing that shares of stock may be levied on, is applicable only where the defendant has the legal title to the stock, and not to a case where defendant has, in another state of which he was a resident, assigned the certificates, although no transfer has been made on the company's books.-Weller v. J. B. Pace Tobacco Co., (Sup.) 292. Affidavit.

2. An affidavit described the claim sued on as for "the services of the plaintiff, as the attorney of the defendant, rendered in prosecuting certain suits upon his retainer, and for drawing and engrossing certain instruments in writing, which services were performed, and money advanced, between" stated dates. Held, that the affidavit contained a direct and positive averment of indebtedness for services performed and money advanced, and not a mere allegation of indebtedness without any facts.-Wenzell v Morrissey. (Sup.) 250.

*

3. An affidavit for attachment, made by plaintiff's brother-in-law, which does not state that the affiant has any knowledge of the facts, alleging that the action is for money, "being the balance claimed to be due * * as damages for breach of con tract, over and above all counter-claims." etc., is not a compliance with Code Civil Proc. § 636, subd. 1, requiring the affidavit to show that "the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims, " etc.-Lee v. Co

6. Under Code Civil Proc. N. Y. § 636, subd. 1, requiring an affidavit for attachment to show that plaintiff is entitled to recover the sum stated over and above all made by plaintiff's attorney must disclose counter-claims known to him, an affidavit the sources of deponent's information.— Crowns v. Vail, (Sup.) 218.*

of plaintiff's information, and the grounds
7. An affidavit alleging that the sources
of his belief that no counter-claims or
off-sets exist in favor of the defendants
against any of the parties through whom,
by assignment, he derives title, are affida-
vits of some of such assignors and written
statements of the others in his possession,
is sufficient, at least as to the causes sup-
ported by such affidavits.-Id.
Bond.

8. Where, after a constructive attachment of shares of corporate stock, they become depreciated in market value, the depreciation not being attributable to the attachment, defendant is not for this reason entitled to have the attachment undertaking increased.-Miller v. Ferry. (Sup.) 863.

ATTORNEY AND CLIENT.
See, also, Champerty and Maintenance.
Assignment of judgment to attorney, see
Set-off and Counter-Claim, 3.
Attorney in fact, see Landlord and Ten-

ant, 7

Privileged communications, see Witness,

1,.2.

Compensation.

1. An attorney employed by a voluntary association can recover, from a receiver

thereof, for services rendered the associa- | tified, was presented, supplementary protion before the appointment of the receiver; but compensation for services after that time is discretionary in the court making the appointment. - Beneville v. Whalen, (C. P Ñ. Y.) 20.

2. In such case the record of the cause wherein plaintiff appeared as counsel is prima facie but not conclusive evidence of his employment, and it is unnecessary for him to prove a resolution of such club retaining him.-Id.

Compensation-Lien.

3. Under Code Civil Proc. N. Y. § 66, giving an attorney a lien on the judgment in

his client's favor, which cannot be affected by settlement between the parties, where the judgment is exclusively for costs and disbursements, the record is sufficient notice of the lien; and a discharge by payment to the client may be set aside on motion. Kaufman v. Keenan, (City Ct. N. Y.) 395.*

4. On a motion to open a default, a stipulation required by the court that defendant will not dispose of a judgment in his favor against a third person, signed by defendant alone, and witnessed by defendant's attorney, and acknowledged before him as a notary, does not estop the attorney from asserting his lien on defendant's judgment for services in procuring it.Clare v. Lockard, (City Ct. Brook.) 646.

BAILMENT.

See, also, Carriers; Pledge.

Sale for storage lien.

1. In an action for the value of a carriage sold to pay a storage lien, defendant is entitled to be allowed the amount of his lien, whether the sale was made in accord ance with plaintiff's instructions as to price or not.-Richmond v. Brewster, (City Ct. N. Y.) 400.

ceedings were instituted against the legatee, an injunction served on the bank. the cashier examined, plaintiff appointed receiver,-of all which the bank had notice, -and a demand made for the money. During all this time the bank had money to pay the check, and upon presentation it was paid. Held, that plaintiff could recover the amount so paid, as the bank had notice that the fund was trust property, be longing to the debtor, though in the name of the executors.-O'Connor v. Mechanics' Bank, (Cir.) 225.

National banks-Taxation of shares. 2. Laws N. Y 1882, c. 409, relating to taxation of shares of national banks, section 312, requires notice in writing of the assessment of the capital stock to be served on the bank within 10 days. Section 314 provides that the tax imposed on the shares owned by non-residents shall be a lien thereon, and section 315 makes it the duty of the bank officers to retain so much of the dividends belonging to such stockholder as shall be necessary to pay the tax. Held, that the requirement of notice of assessment is for the purpose of creating a lien on the shares of non-resident stockholders, and that the tax may be assessed on the shares of resident stockholders without such notice in the same manner as on personal property.-People v. Smith, (Sup.) 460.

BENEVOLENT SOCIETIES. Member in good standing.

A member of a benevolent society who obtains a withdrawal card from his lodge. and thereby ceases to exercise any voice or influence in it, is not a member of the order in good standing, and entitled to the benefits payable to such members.Meyer v. American Star Order, (City Ct. N. Y.) 492.

Bills and Notes.

2. Where the point in dispute is whether the price offered for the carriage was to be submitted to plaintiff before selling, it is error to charge that if plaintiff was the See Negotiable Instruments. owner of the carriage the jury must find the value of it for her; as defendants are liable only for the price received, if they had unlimited authority to sell.-Id.

BANKS AND BANKING. Transfer of deposit slip, see Gifts, 6. Deposits.

1. Executors deposited with a bank a gross amount, payable to their order; and drew their check for the amount to which a legatee was entitled, and mailed it to him. Before the check, which was not cer

BLACKMAIL.

Indictment.

Under Pen. Code N. Y. § 558, imposing a punishment upon one who, with intent to extort money, sends a letter threatening to expose or impute to any person any deformity or disgrace, an indictment charg ing that defendant, by letter, to extort money, threatened to accuse one of having sexual intercourse with a woman not his wife, is sufficient, where the letters ask a loan, stating that the addressee could not afford to refuse, and adding, as postscript,