of the executor or his attorney to heed the notice of a hearing, and when a summons was obtained from the referee, and served on the executor personally, he did not attend until a day after the one designated, the costs of the proceeding will be taxed against the executor personally. In re Williams' Estate, (Sur. N. Y. Co.) 669. 13. Findings of the referee that the executrix had practically exclusive control of the estate, and that she used funds without making any pretense of securing the estate until two years afterwards, and then only when threatened with proceedings in the probate court, justify the conclusions of law that the executrix carelessly and wastefully managed the estate; that she was not a fit person to be executrix; and that she should be personally charged with the costs of the proceeding to remove her.In re Stanton's Estate. (Sur. N. Y. Co.) 342. 14. Where the executor of the estate of his deceased partner denied the existence of any assets, and on final settlement he was found chargeable with a large amount, he is personally liable for the costs of the proceeding. In re Mull's Estate, (Sur. N. Y. Co.) 23. Actions. 15. In an action by a residuary legatee against the executor, to set aside convey ances by the testator to him as fraudulent, and for an accounting, allegations in the answer, of one made a co-defendant, as a person interested, that the will is void for the executor's fraud in procuring it, are foreign to the cause of action, and not authorized by Code Civil Proc. N. Y. SS 452, 521, empowering the court to determine the rights of defendants as between themselves. Smith v. Hilton, (Sup.) 820. 16. Allegations that the residuary devise to the executor is void on its face, and that the property included in it descended, and became distributable; that other actions are pending to revoke the probate, and to have the devise to the executor declared void; and allegations raising an issue as to whether, by the true construction of the will, a part of the residue is bequeathed as alleged in the complaint, and admitting that plaintiff and another are interested,— should not be stricken out.-Id. 17. They are not authorized by Code Civil Proc. $ 500, 501, allowing a counterclaim arising out of the contract or transaction alleged in the complaint, or connected with the subject of the action, or, in an action on contract, a counter-claim arising on another contract.-Id. 18. They are objectionable, also, under Code Civil Proc. § 2472, 2626, 2627, 26472653, giving the surrogate jurisdiction to determine the validity of a will, and providing for a further hearing before him, as the means of avoiding the effect of his determination, while unreversed.-Id. 19. Neither are they authorized by Code Civil Proc. § 1866, providing for an action to test the validity of a devise.-Id. 20. The allegations, being voluminous, should be stricken out, on the executor's motion, that being the only remedy available to him, but the demand for judgment should not be stricken out.-Id. Probate practice. providing that a party may appear in the 21. Under Code Civil Proc. N. Y. § 2528, surrogate's court until he has been judirights, an administrator, on accounting, is cially declared incompetent to protect his not prejudiced by the surrogate's refusal who was flighty, but who had never been to appoint a guardian for decedent's widow, herself, though by section 2527 the surrojudicially declared incompetent to care for gate may, in his discretion, direct citation to such a person to be served upon some one designated for the purpose.-In re Stephen's Estate, (Sup.) 36. providing that if a person cited to answer 22. Under Code Civil Proc. N. Y. § 2710, concerning the whereabouts of personal property of a decedent shall interpose a the owner of said property, or is entitled written answer, duly verified, that he is to the possession thereof, the surrogate shall dismiss the proceedings, an answer to a petition by an executrix for such citation, which alleged that the only property in respondent's possession was certain ornaments given to her by testator, to whom she was engaged to be married; that the same is her own property, in which the executrix has no title or interest; and that respondent has no property of any kind beto entitle respondent to dismissal of the longing to testator's estate.-is insufficient proceeding. In re Hastings' Estate, (Sur. N. Y. Co.) 22. 23. An order of the surrogate directing the payment of a sum of money in anticipation of a legacy, which does not require security to be given as a condition of payment, as provided by Code Civil Proc. N. tin's Estate, (Sup.) 875. Y. § 2719, is fatally irregular.-In re Aus Ancillary administration. 24. A motion to grant ancillary letters testamentary to one alleging that he is executor of a will duly probated in another state will not be granted on affidavits; but a reference will be ordered to determine whether the testatrix resided in such other state at the time of her death, or the execution of the will, so as to entitle petitioner to ancillary letters, under Code Civil Proc. N. Y. § 2695.-In re Cavin's Estate, (Sur. N. Y. Co.) 670. 25. Where petitioner also asks that let as to sending notices, is admissible, as bearing on the question whether the later transactions were for plaintiff.-Finney v. Gallaudet, (C. P.-N. Y.) 707. ters previously issued to another be re-dealings, and the ordinary custom of trade voked, the reference must include the question as to whether decedent's next of kin were cited in the foreign probate proceedings. If decedent resided in New York at the time of her death, or the execution of the will, and her next of kin were not cited, the letters of administration will not be revoked until proceedings are instituted to probate the will in New York. Id. Exemptions. From taxation, see Taxation, 1. Extradition. Authority of district attorney to prosecute, see District and Prosecuting Attorneys, 2. FACTORS AND BROKERS. Right to commissions. 1. Where defendants agree to pay plaintiff a certain sum for negotiating a loan on real estate to be deducted from the loan when obtained, plaintiff is entitled to his compensation when he procures a person willing and ready to make the loan, but refuses because defendants' title to the real estate is defective.-Putzel v. Wilson, (Sup.) 47.* 2. An agent to sell land cannot, without special authority, bind his principal by the employment of a broker to effect the sale, and a promise of commission, though the customary method of selling land in the city where the transaction occurred, is by means of a broker.-Bonwell v. Howes. (Č. P. N. Y.) 717. Actions. 5. Evidence of conversations between one of the defendants and their confiden tial clerk is inadmissible on their behalf; but evidence of a conversation between such clerk and plaintiff is competent on behalf of the latter; the gist of defendants' defense being that such clerk was their employe, and, as such, received confidential orders from plaintiff.-Id. FERRY. Lease-Percentage on receipts. 1. Defendant leased a ferry to plaintiff for a yearly rent equal to 5 per cent. of the gross ferriage receipts. At that time the ferry ran to a point on, and thence along. the opposite shore, and made several stops; the whole fare being 10 cents. Plaintiff afterwards constructed a railway, and thereafter ran its boat to one point only, whence it conveyed passengers by rail, charging 10 cents for the whole trip, or 5 cents each on the ferry and railroad. The evidence showed 5 cents to be a fair apportionment for the ferriage. Held that, there being nothing in the lease to the contrary, plaintiff had a right to reduce the ferriage, and defendant was only entitled to a percentage of ferriage receipts, calculated on the basis of 5 cents for each passenger carried on the ferry after the railroad was used.Staten Island Rapid Transit Co. v. City of New York, (Sup.) 680. 2. Twenty per cent. of the gross receipts of the ferry and railroad was estimated as the amount of the ferriage receipts. by comparing the returns of the conductors. 3. A complaint, in an action against a which, after the settlements were made stock-broker for failure to execute orders with defendant, were destroyed. The esti for the purchase and sale of stock, con- mate, which appears reasonable, having taining no allegation that plaintiff pro- been acquiesced in by defendant, who revided the means of payment, or that deceived the rent on that basis for some time. fendant agreed to advance the same, or that plaintiff placed the stock to be sold within defendant's reach, or that he agreed to sell stocks that plaintiff did not possess or furnish for delivery, does not show a cause of action.-Ryder v. Sistare, (C. P. N. Y.) 715. and there being no way of ascertaining definitely the number of persons carried. such settlements will not be disturbed. -Id. 3. Plaintiff, having contracted to carry persons for an amusement company, charg ing 10 cents ferriage, of which it gave the company 2 cents, must account to defendant for percentage on the full fare of 10 cents.-fd. Fire Insurance. 4. In an action against stock-brokers, where defendants concede that a profit resulted from operations for plaintiff down to a given date, but set up that after that time other ventures were made on plain- See Insurance. tiff's account, which left him in debt to them, and it is admitted that they did not follow the usual custom of sending notices during the later transactions, evidence of the method of business between them and plaintiff during the time of the undisputed FRAUD. See, also, Deceit; Fraudulent Conveyances. What constitutes, see Limitation of Ac-|with interest, on demand. The grantor tions, 3. Evidence. used the money in a hotel business in another state, the title to which, as well as the register and insurance, were in his own name. There was evidence of admissions by the grantee that he was interested in the hotel business, but he denied it, and denied making the admissions. The conveyance was made in consideration of the money loaned. Held, that the land was not the firm's property, and that the grantor owed the grantee for his share of the proceeds so used.-Id. 5. A father, engaged in buying notes and mortgages, and loaning money, conveyed land to his son, receiving, in consideration therefor. notes which his son held against him to the amount of about the value of the land. The undisputed testimony of both, that the notes were given for money loaned by the son to the father, was corroborated by a letter from the son to the father, stating that he sent certain sums of money, which his father would have to guaranty to him. This money did not appear to have been loaned in the name of the son, and some of it appeared to have Actions to set aside, see Executors and Ad- been invested in land in the father's name. ministrators, 15-20. What constitutes. 1. A partnership, and each partner thereof, was insolvent, and one transferred his interest to the other, who agreed to pay -he partnership debts and the assignor's ndividual debts, and give him $1,000. He afterwards assigned to a third party, preferring his individual debts. Held, that the transfer and assignment were both fraudulent as to creditors.-Burhans v. Kelly, (Sup.) 175.* Held that, though there were discrepancies between the father and son as to dates, a finding that there was no consideration for the conveyance was error.-Merchants' Bank v. Thalheimer, (Sup.) 328.* 6. A mortgage executed by one insolvent and pressed by creditors, to secure an alleged indebtedness, the greater part of which was for mining stocks, which the mortgagor seemed to know were worthless, never inquiring as to their value, though not being acquainted with stocks, and not even knowing in what companies the stocks were, is fraudulent as to creditors.-Johnson v. Philips, (Sup.) 432.* 7. Transfers and mortgages given partly for valid debts, but including fictitious liabilities, are invalid in toto.—Id. 2. A debtor conveyed property to de fendant as security for liabilities assumed by him, to be reconveyed when the liabilities should be paid, for which two years were allowed. No actual fraud was shown. Held, that the conveyance was not invalid 8. Certain transfers of property by a husas against the debtor's other creditors.-band to his wife were alleged to have been Simmons v. Martin, (Sup.) 574.* 3. An insolvent debtor may transfer property to a creditor to pay a debt justly due, and such transfer is not void as to other creditors.-Citizen's Nat. Bank v. Riddell, (Sup.) 331.* 4. The grantor and grantee were brothers and partners, and, with two others, owned land, an undivided fourth being conveyed to each. The grantee testified that they were not partners in the land, which was the understanding of one of the co-owners. while that of the other was to the contrary The land was sold, and the proceeds deposited partly in the firm name and partly in that of the grantee, and checked out by the grantor, upon the agreement, as the grantee testified, to repay him his share, made in payment for money loaned. It did not appear how she procured the sums loaned, and her statement differed widely from his as to amounts and dates. He transferred his business to her, made damaging admissions as to his motives, tried to induce a third party to set up false claims to his property, was all the time embarrassed, and soon afterwards failed. Held, that the transfers were made with intent to hinder, delay, and defraud creditors.— Id.* 9. Evidence that the son was liable for the father on a note to his mother, and that at the time of the conveyance the son had, at the father's request, delivered certain promissory notes to his mother, and that some of them had been paid, should be admitted, as bearing on the son's good | deceased to his son.-Hurlburt v. Hurlburt, faith.-Merchants' Bank v. Thalheimer, (Sup.) 317. (Sup.) 328.* 10. The voluntary assignment by a father to his son of a cause of action, which the son does not accept, does not charge the latter with any inference of fraud.-Id. Actions to set aside. 11. A creditor having a judgment against the administratrix, upon which no execution has issued, cannot maintain an action to set aside as fraudulent a mortgage executed by the intestate conveying land in a county in which his judgment was not rendered or docketed, though the administratrix refuses to bring such action.-National Bank v. Levy, (Sup.) 162. 4. Testimony of the donee's wife that she cared for the donor's wife during her last illness, that she did the work, and was up night and day a good deal of the time. and received no pay, is admissible to prove the gift.-Id. Donatio causa mortis. 5. Evidence that at the time of making an alleged gift causa mortis the donor was old and infirm, and said that she feared she would not live through the next winter. and that the doctor had told her that she might die at any minute, it not being shown that she then had any disease except rheumatism, is insufficient to warrant an infer12. In an action against an assignee to ence that the gift was made under appreset the assignment aside as in fraud of cred-hension of immediate death, or that death itors, the examination of the assignors. was caused by any disease which she then taken in supplementary proceedings six had, where it appears that her health aftermonths after the assignment, is inadmissi-wards became much better; that she died ble in evidence.-Burhans v. Kelly, (Sup.) 175. GAMING. Gaming contracts. A contract for the sale of 34 bushels of Bohemian oats, at $15 per bushel, secured by the buyer's note, payable in 13 months, the seller undertaking, by a bond, to sell for the purchaser, within a year, 68 bushels of like oats at $15 per bushel, on 334 per cent. commission, is not a gaming contract, within the meaning of 3 Rev. St. N. Y. (7th Ed.) 1962, rendering all wagering contracts void.-Matson v. Blossom, (Sup.) 551. GIFTS. 14 months thereafter, of a sudden illness, which she was not shown to have had any reason to expect; and that shortly after the alleged gift she disposed of her property by will.-Van Fleet v. McCarn, (Sup.) 675. 6. The delivery by the depositor of a deposit slip issued to her by the bank, and which simply indicates the time and amount of the deposit, and is not signed, is not a sufficient delivery of the money represented thereby to constitute a valid gift causa mortis, the depositor retaining control of such money during her life, without reference to such deposit slip.Id.* GOOD-WILL. Right to firm name. Between husband and wife, see Husband well were partners in the drug business, and Wife, 5. Inter vivos. 1. A deposit of money in a bank "for Henrietta Barker" is either a deposit of money belonging to her, or a completed gift to her, and the depositor on drawing out the money holds it as her trustee. Barker v. Harbeck, (Sup.) 425.* 2. The only member of depositor's family, who was named Barker, was her sister Harriet, and there was no other named Harriet, Henrietta, or Harrietta. It was shown that the depositor had declared that Mrs. Barker's name was Harrietta. Held to justify a finding that the deposit was intended for Mrs. Barker.-Id. 3. The declarations of decedent that his son and wife were coming to live with him, that he should pay them well for it, and that he was much attached to his son's wife and child, are admissible to show that the money in controversy was a gift from Philip Caswell, R. Hazard, and John Casunder the firm name of Caswell, Hazard & Co. In 1872, Philip Caswell sold to R. Hazard his entire interest in the firm, including good-will. J. Hazard was taken in, and the firm continued under the old name until 1876, when it was dissolved by the withdrawal of John Caswell. The Hazards continued business under the old name. In an action by John Caswell to restrain their use of the word "Caswell," it appeared that plaintiff had joined, in 1872, in filing a certificate to protect Philip Caswell from liability, under which the firm continued to use the old name; also that when he withdrew, in 1876, he sold defendants a large quantity of bottle moulds and labels bearing the firm name, and whose value consisted chiefly in that fact; also that for 10years before bringing suit he knew that defendants were advertising under and using that name. Held, that the purchase from Philip Caswell gave defendants the right, as against him, to use the word "Cas well." and that plaintiff had consented to | assessing damages in highway proceedits use as against him.-Caswell v. Hazard, (Sup.) 783. GUARDIAN AND WARD. Accounting. 1. A guardian is chargeable with rents of premises in which his ward has an interest, and which are occupied by himself.In re Kopp's Estate. (Sur. N. Y. Co.) 495. 2. A guardian is not entitled to credit for taxes and water rents paid on the ward's property after the ward comes of age, and without his knowledge or consent.-Id. 3. A guardian guilty of maladministration loses his commissions, and is charge able with the costs of reference, and cannot be excused on the ground of ignorance. -Id. Habeas Corpus. Release of child, see Parent and Child, 3. HIGHWAYS. Dedication and prescription. 1. During 10 years of the time in which it was contended that a 60-foot strip of land had been used as a public highway a por: tion of it running throughout its length had been occupied under license from the owner by a steam railway, whose road-bed was unsuitable for ordinary travel, and that portion of it was not used as a public highway. Held, that the use by the public dur. ing that time of the rest of the strip did not constitute the strip a public highway by user.-Speir v. Town of New Utrecht, (Sup.) 426. 2. No map showing this strip as a public highway had ever been filed, nor had any lots been sold as bounded by it; the public authorities had never worked it or kept it in repair, nor exercised any jurisdiction over it. Held, that the fact that the owner had agreed with the owner of the land bordering on it not to close it without his consent, is not evidence of dedication, nor does it raise any presumption that nominal damages only could be awarded on taking the land for public use.-Id.* 3. The commissioners for opening the highway for which the land in question was assessed, in all their proceedings assumed this strip to be a public road, and omitted it from their consideration as one of the parcels to be acquired by them. Held, that these proceedings were not an adjudication upon the question whether or not it was a public highway. -Id. Establishment by statutory proceedings. 4. Under Laws N. Y. 1847, c. 455, and amendments, prescribing the manner of V.2N.Y.S.-58 ings, viz., that a jury be drawn, the parties be heard, witnesses examined, etc., all the proceedings are void, unless due notice be given to the parties, though such notice is not expressly required by the act.-People v. Gray, (Sup.) 251. HORSE AND STREET RAILROADS. Injuries to passengers, see Carriers, 6–13. Liability for negligence. A Plaintiff, a child about 18 months old, in company with his mother, who had hold of his hand, started across a street. street car was approaching on an up-grade, for a time at a moderate pace, and then at an increased speed, the driver urging his horses. As it approached the part of the street where plaintiff and his mother were, she held up her hand to signal the driver to stop, but did nothing to indicate that her purpose was other than to take passage on the car. She was about two feet from the track as the horses passed, but, becoming suddenly frightened and confused, she lost her hold on the child, and he, in some unwas injured. Held, that the company was explained manner, got on the track, and F. R. Co., (Sup.) 787, not liable.-Wolf v. Houston, W. S. & P. HOSPITAL. Right to reimbursement for care of patient. Defendant's decedent was admitted to a hospital on an order of the overseer of the poor; the rules of the hospital requiring an application for that purpose to be signed by the patient or his physician. No written application was produced at the trial, and the overseer was dead at that time. Held, that it will be presumed that the public officer did his duty, and that the and the plaintiff city can recover money deceased made the necessary application, paid for the treatment of deceased from her estate, as paid for her use and at her request. LANDON, J., dissenting.—City of Albany v. McNamara, (Sup.) 127. HUSBAND AND WIFE. See, also, Divorce; Dower; Marriage. Conveyances between, see Fraudulent Conveyances, 8. Suits between, see Costs, 2. 1. Where plaintiff's husband bought a carriage, paying partly in cash and partly |