66 636 148a 235 FIFTH DEPARTMENT, JANUARY TERM, 1893. Anna E. Lick, Respondent, v. The Town of Moravia, Appellant.- Court declines to consider this appeal (submitted without argument) for the reason that the papers contained in the appeal-book are not certified to be "a copy of the papers used before the court on the hearing of the motion," as required by section 1353 of the Code of Civil Procedure; also that the case, which is a part of the appeal-book, was not procured to be settled and signed by the judge before whom the action was tried, as required by sections 997 and 999 of the Code of Civil Procedure and Rule 35 of General Rules of Practice. Irving Paine, Respondent, v. Abram T. Kerr, Appellant. Judgment appealed from reversed and a new trial granted, with costs to abide the event. Opinion by Lewis, J. Sophia Preston, Appellant, v. Philip Groben, Respondent. Judgment appealed from affirmed, with costs. Opinion by Dwight, P. J. Mary Nielson, Respondent, v. Alice Laflin, Appellant. Judgment appealed from affirmed, with costs. Opinion by Macomber, J. Nathan Stein and others, Respondents, v. Frederick Maggs and another, Appellants. - Judg. ment appealed from affirmed on opinion of Adams, J., at Special Term. The Superintendent of the Poor of the County of Cattaraugus v. The Superintendent of the Poor of the County of Erie. Judgment ordered for the plaintiff on the submission. Opinion by Macomber, J. Ira W. Ackley, Executor, etc., Appellant, v. John Ackley, Respondent. Judgment appealed from affirmed. Opinion by Lewis, J. William Halter, Appellant, v. John Shaffer, R spondent. - Judgment of County Court of Cattaraugus County appealed from affirmed, with costs. Opinion by Dwight, P. J. Albertus Richards, Respondent, v. Cyrus D. Angell, Appellant. Judgment appealed from affirmed. Opinion by Macomber, J. Esek Page and another, Appellants, v. Albertus Larrowe. Respondent.-Judgment appealed from affirmed, with costs, on opinion of Rumsey, J., and on authority of Rochester Distilling Company v. Raze (48 N. Y. St. Rep., 301). Moravia National Bank, Respondent, v. Groton Iron Bridge Company, Appellant. Order appealed from affirmed, with ten dollars costs and disbursements. Ada Evoy, Respondent, v. Expressmen's Aid Society. Appellant. Order appealed from affirmed, with ten dollars costs and disbursements. Opinion by Macomber, J. Henry R. East, Appellant, v. Cayuga Lake Ice Line, Respondent. Judgment and order of the County Court of Monroe county appealed from reversed and a new trial granted, with costs to abide the event. Opinion by Lewis. J. Anna Grosser, Respondent, v. the City of Rochester and another, Appellants. Impleaded, etc. Judgment appealed from affirmed, with costs, on authority of the decision of this court on former appeal. Reported, 60 Hun, 379. Edwin Smith, Executor, etc., Respondent, v. Mary A. Chase, Appellant, Impleaded, etc. Judgment of the County Court of Cattaraugus county appealed from affirmed, with costs. Opinion by Lewis, J. Sophronia King, Respondent. v. The New York, Lake Erie and Western Railroad Company. Appellant-Judgment and order appealed from affirmed. Opinion by Dwight, P. J. In the Matter of the Petition of James Matteson for a decree or order granting leave to issue execution against real property of Ira L. Gates. Decree of the surrogate of Cattaraugus county appealed from affirmed, with costs. Opinion by Macomber, J. Frank B. Martin, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.-Order granting nonsuit affirmed, with costs, and judgment directed for the defendant thereon. Opinion by Lewis, J. Michael W. Anguish, Appellant, v. Frederick Craft, Respondent.- Judgment and orders appealed from affirmed. Lewis, J., not sitting. Sidney B. Roby, Appellant, v. Thomas J. Reynolds, Respondent. Defendant's motion for a reargument, or for leave to appeal to Court of Appeals, denied. Catherine Mehegan, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Motion by plaintiff to modify order of this court so as to show that the judgment and order appealed from were reversed on questions of law alone, denied. Albert G. Smith v. Charles E. Mott.-Reargument granted. Lawrence Saltsman, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant. - Motion for leave to appeal to the Court of Appeals denied. Decisions by Charles C. Dwight, P. J., Loran L. Lewis, Francis A. Macomber and Albert Haight, JJ. In the Matter of the Probate of the Last Will of George A. Bartholick, deceased. -Decree of the surrogate of Monroe county appealed from affirmed, with costs to the respondent Kirley, payable out of the estate. Haight. J., not voting. Frances M. Noble, Respondent, v. Clark D. Knapp, Executor, etc.. Appellant - Judgment and order appealed from affirmed, with costs. Daniel Torpy and another, Appellants, v. Reuben Torpy and others, Respondents. Judgment appealed from affirmed, with costs. Edmund C. Whitney and another, Respondents, v. Joseph Davis and others. Appellants. Order appealed from affirmed, with ten dollars costs and disbursements. Haight, J., not sitting. INDEX. PAGE. ABATEMENT - Entry of an order of reference, in ignorance of the death of a necessary party, before the revival of the action. See WATERS v. MANHATTAN RY. Co.. - ACTION-Severing an action against joint debtors — effect of a judgment against one of them in releasing the other. See NAT. BROADWAY BANK v. HITCH. 60 401 APPEAL - Duty of the appellate court to order a jury trial on the reversal of a surrogate's decreewhat evidence is insufficient to raise a question of fact.] 1. Section 2588 of the Code of Civil Procedure, which requires the appellate court, on the reversal or modification, upon a question of fact, of a surrogate's decree upon the probate, or revocation of probate, of a will to direct the trial by a jury of a material question of fact arising upon the issues between the parties, does not require the court to order such a trial when the evidence appearing upon the record of the appeal is insufficient to raise a question of fact within the legal meaning of that term. Hence if, on appeal to the General Term from a decree of a surrogate revoking the probate of a will on the ground of want of testamentary mental capacity in the testator, it appears that there was no evidence before the surrogate in behalf of the contestant which, standing alone, was sufficient to defeat the probate, the General Term is not required to order a jury trial, but it is its duty to regard such failure of evidence as raising a question of law and, consequently, to reverse the decree revoking the probate and confirm the original decree admitting the will to probate. An expression of opinion by a witness, on the question of the mental capacity of a testator, that a certain act is irrational and indicates unsoundness of mind, is no evidence of unsoundness of mind; facts must be given from which it may be judicially determined that the unsoundness of mind exists before the legal presumption of sanity and of disposing mind can be overcome. MATTER OF RAPPLEE.... 2. Evidence as to mental capacity.] In the absence of evidence of a want of legal capacity on the part of a testator, at or near the time when a will is made, no case is made out by a contestant of its probate. Id. 558 able Order appointing a receiver in supplementary proceedings not appeal- See MOSCHELL v. BOOR 557 Order of county judge made on an appeal under section 11, title 1 of chapter 291 of the Laws of 1870 is appealable to the General Term of the Supreme Court by force of section 1357 of the Code of Civil Procedure. See VILLAGE OF HARRISVILLE . LAWRENCE...... 302 No appeal lies from a decision that an executor account, upon which no order was entered. See MATTER OF CALLAHAN.. 118 APPEARANCE- By attorney. See ATTORNEY AND CLIENT. APPORTIONMENT - Boards of supervisors - dividing assembly districts after an apportionment - the districts need not contain an equal number of inhabitants-wards of Brooklyn may be divided. See MATTER OF BAIRD.... ASSEMBLY DISTRICTS — Boards of supervisors — dividing assembly districts after an apportionment the districts need not contain an equal number of inhabitants—wards of Brooklyn may be divided. See MATTER OF BAIRD... 335 335 ASSIGNMENT For the benefit of creditors-legal services rendered by the assignee and his firm-compensation.] 1. Upon an accounting of an assignee for the benefit of creditors it appeared that he was a lawyer, and a member of a firm of lawyers, that, in proceedings taken by a bank, which was interested as a creditor of the estate, to remove him from his trust, the assignee employed his firm to defend him, and rendered services himself; that, in other matters relating to the assigned estate, both he and his firm rendered services, some of which appeared to be of considerable value. Upon an application by the assignee to be allowed compensation for these services: Held, that this could not be done, and that he was only entitled to commissions. That it was contrary to the policy of the law to allow an assignee to deal with the assigned estate; that it made no difference how valuable the services were, and that he could not recover for legal services which he rendered in person or by his firm. MATTER OF MAXWELL.. PAGE. ... 151 2. Costs.] The bank failed in its attempt to remove the assignee. Held, that, if the bank was to be charged with costs, the matter should have been adjusted in the proceeding for removal, and that costs could not be allowed against the bank upon the final accounting of the assignee. It appeared that the County Court allowed the assignee $500 as costs of his final accounting, and to this the bank objected, although it was alleged that the bank had consented to the allowance, and it was so found. Held, that if it had so consented it was bound by such consent. Id. 3. Retainer of an attorney.] That, in the absence of fraud or collusion, where an attorney appears in open court or by proper notice of retainer, he is deemed to represent his client, and the latter is bound by his acts performed in the regular line of his duty. Id. Fraudulent conveyances — transfers in contemplation of a general assignment-fraudulent intent on the part of the assignor alone is sufficient · when the intent of the assignee is material· -a series of acts, one of which is fraudu lent-2 R. S., m. p., 137, §§ 1, 5. baggage. See ABEGG v. BISHOP... Effect of the assignment of a claim" against a railroad for loss of See TALCOTT v. WABASH R. R. Co..... ATTORNEY — Libel — defamation of plaintiff's (a lawyer's) deceased wife — alleged injury in a professional capacity. ..... See WELLMAN v. SUN PRINTING AND PUBLISHING COMPANY.. ATTORNEY AND CLIENT- Unauthorized appearance by an attorneyrelief by motion the attorney compelled to pay the judgment.] Where the court can protect all parties who have any rights involved, it may, on summary application by motion, grant relief to a party, as against an attorney, for an unauthorized appearance, by compelling the attorney to pay a judgment recovered against the party on such unauthorized appearance. 8 456 331 ATTORNEY AND CLIENT —Continued. On such an application the court will not disregard affidavits on behalf of Where a married woman was named as a plaintiff with her husband in an Held, that a proper case was presented for relief on motion, and that if the POST . CHARLESWORTH..... Assignment for the benefit of creditors — legal services rendered by the Criminal Procedure-right of a prosecutor to appear by counsel upon a prelimary examination before a magistrate. See PEOPLE EX REL. HOWES . GRADY. PAGE. BANKING- Savings banks- individual deposit in excess of the limit of Section 290 of the banking act of 1882 (chap. 409), which declares it unlaw- Section 290 of the banking act of 1882 was not intended to render void a Section 290 of the banking act of 1882, was amended in 1885 (chap. 477) by Held, that, notwithstanding the provisions of sections 257 and 267 of the 256 151 465 |