FIFTH DEPARTMENT, JULY TERM, 1895. you to take, remove and keep same being in payment of your account the goods, made for supplies while living in your vil. lage." This was August 20, 1890. tember first the plaintiff wrote: "I give you On Seporder to hold said goods in your possession belonging to me until such time as I can take care of them." It is clear that up to this time the plaintiff had not thought of pledg ing her goods for payment of her husband's debt, nor to do anything more than to pro tect her right in them against her husband's creditors. She owed no debt, either to the plaintiff or any one wrote to the defendant that she appreciated On the same day she his kindness, and expressed her belief that he would do right" by her. There was evidently a very friendly relation between these parties, and no one carefully reading the evidence can fail to see that this woman confided fully in the honesty and friendship of the defendant. She seemed to believe that her goods might be taken to satisfy her husband's debts, and, fostering this belief, the defendant, on the 2d of September, 1890. wrote her: " I enclose a writing which please sign and return to me. When I have this I can hold the goods together in face of due process of law any party may attempt. [Vol. 88. Of course, this writing takes the goods absolute, but it is not my wish to hold them. I hope and trust that the time will come when all these goods will be wanted and used as heretofore." knew that the plaintiff was not responsible The defendant for her husband's debt to him, nor for any other debt of his. It was a scheme to collect from her her husband's debt by representing to her that her property would be safer from her husband's creditors in his hands than in hers, and, relying upon his representations and friendship, she placed them there. Afterwards the defendant sold them, "in such a way, he could get them together again" if plaintiff would pay her husband's debt to him, with interest, and his charges for storing the goods. The referee finds the value of the goods sold to pay a debt of $60, which the plaintiff did not owe, to be 8331.33. The evidence in the case is practically without contradiction, and justifies the conclusion of the referee that the defendant obtained possion of the goods by fraud. The question in the case is wholly one of fact, and the referee having found for the plaintiff upon sufficient evidence the judgment should not be disturbed. Putnam and Herrick, JJ., concurred. FIFTH DEPARTMENT-DECISIONS HANDED DOWN JULY 1 AND 15, 1895. Frank D. Perry and Another, Appellants, v. The Lehigh Valley Railway Company, Respondent-Motion denied. The German-American Bank of Tonawanda, N. Y., Respondent, v. Cornelius Daly, Appellant-Judgment affirmed. Allen J. Arnold and Others, Appellants, v. James Fee and Another, Respondents Memorandum of decision amended so as to read as follows: Judgment affirmed, with costs, on opinion of Rumsey, J., at Special Term, with leave to the plaintiffs to amend their complaint within twenty days on payment of the costs of the demurrer and of this appeal. - AMENDMENT — Defective records — an application for the correction thereof See PRATT v. BAKER.. Of pleadings. See PLEADING. ANCIENT DOCUMENT: See EVIDENCE. APPEAL-Defective records - - an application for the correction thereof must PAGE. 301 Appellate tribunals have jurisdiction to review a ruling sustaining or deny- 2. Order of reference—a party cannot submit thereto and subsequently 3. When it is not an intermediate order.] Where a County Court 4. Id. What is not an appeal from a final judgment.] An appeal from an 5. Decision of the Special Term on conflicting affidavits, not disturbed on APPEAL- Continued. utes of the court and extracts from the stenographer's minutes also tended to The defendant's affidavit alleged that the minutes of the court did not con- Held, that the General Term would not disturb the conclusion reached VAN KEUREN v. VAN KEUREN.. 6. To a County Court-costs.] The plaintiff in an action brought in Held, that the plaintiff was not entitled to recover costs in the County 7. Verdict of a jury, when not set aside.] An appellate court will not 8. Case on appeal.] Where a case upon appeal does not state that it PAGE. Review, under Code of Civil Procedure, § 2121, of an order appointing See PEOPLE EX REL. HANFORD . THAYER... Application for a discovery of books and papers—after its denial a refer- See FRANCIS v. PORTER.. Reference of a disputed claim a decision of the referee not stating the contract - See BAKER v. MOORE... - Action to recover for services rendered tried on the theory of an express See ROBINSON v. HUNT Inspectors of election — compelled by mandamus to correct clerical errors 450 219 229 35 136 325 458 285 See PEOPLE EX REL. RANTON v. CITY OF SYRACUSE 203 Change of venue· - - - county in which the transactions took place, favored See PAYNE v. EUREKA ELECTRIC CO.... 250 A finding of fact without any evidence to support it—an exception is necessary to the review thereof. See SMITH V. MOULSON 147 Referee's opinion - how far it will be considered on appeal. See KENYON v. KENYON.. 211 HUN - VOL. LXXXVIII. 79 APPEAL- Continued. Costs, where a judgment is not recovered on an appeal more favorable PAGE. See SCHULTE. LESTERSHIRE BOOT & SHOE CO..... 226 See WILEY. LONG ISLAND R. R. Co... 177 County Court. Technical errors in a Justice's Court, disregarded on an appeal to the 283 From a Justice's Court-amendment of the answer in the County Court. 381 ARREST · A magistrate's jurisdiction not affected by a failure to reduce a PEOPLE v. CARTER... 2. · Irregularities may be waived by the prisoner.] A magistrate acquires See MORAN v. FRIEDMAN.... ASSESSMENT — Upon stock of corporations. See CORPORATION. For municipal works. See MUNICIPAL CORPORATION. ASSETS - Marshaling of. See DEBTOR AND CREDITOR. ASSOCIATION - Association of Elks- power of its ruler to remove officers A member of a committee appointed to designate the place at which an For insurance. See INSURANCE. 304 515 154 |