FIRST DEPARTMENT, NOVEMBER TERM, 1880.

ELIZABETH OHLY, RESPONDENT, v. LOUIS M. OHLY,
SUED AS LOUIS OHLY, APPELLANT.

Order reversed, and motion granted, without costs.
Opinion by BARRETT, J.

JAMES J. HIGGINSON, APPELLANT, V. THE FARMERS' LOAN AND TRUST COMPANY, RESPONDENT.

Order affirmed, with $10 costs, and disbursements of the appeal. Opinion by BARRETT, J.

SPENCER ERVIN AND OTHERS, RESPONDENTS, v. THE OREGON RAILWAY AND NAVIGATION COMPANY, ApPELLANT, IMPLEADED WITH OTHERS.

Order allowing commission affirmed, with $10 costs, and disbursements.

Opinion PER CURIAM.

THE RECTOR, CHURCHWARDENS AND VESTRYMEN
OF THE CHURCH OF THE REDEMPTION, RESPOND-
ENT, v. THE RECTOR, CHURCHWARDENS AND VES-
TRYMEN OF GRACE CHURCH, APPELLANTS.
Judgment affirmed.

Opinion by DANIELS, J.

SARAH L. S. LEE AND FREDERICK G. LEE, HER HUSBAND, RESPONDENTS, v. ELIZABETH A. LE ROY AND OTHERS, EXECUTORS, &c., OF HERMAN C. LE ROY, DECEASED, APPELLANTS, IMPLEADED WITH ALEXANDER S. WEBB, AND

OTHERS.

Judgment affirmed.

Opinion PER CURIAM.

SPENCER C. THOMSON, RESPONDENT, v. WILLIAM N. GRISWOLD, APPELLANT, IMPLEADED, &c.

Order reversed, with $10 costs, and disbursements; and motion denied, with $10 costs.

Opinion by DAVIS, P. J.

FIRST DEPARTMENT, NOVEMBER TERM, 1880.

DAVID H. SHERMAN AND MORILLO H. GILLETT, RESPONDENTS, V. THE INMAN STEAMSHIP COMPANY (LIMITED), APPELLANT.

v.

Judgment reversed, new trial ordered, costs to abide event.
Opinion by DANIELS, J.

THE PEOPLE OF THE STATE OF NEW YORK ex rel.
HERBERT ESTES v. THE WARDEN OF THE CITY
PRISON, &c.

Writ dismissed.

Opinion by BRADY, J.

FARRELL FOUNDRY AND MACHINE COMPANY, AP-
PELLANTS, V. ANVIL HORSE SHOE AND NAIL COM-
PANY, RESPONDENTS.

Order affirmed, with $10 costs, and disbursements.
Opinion PER CURIAM.

CHARLES F. SANFORD, RESPONDENT, V. WILLIAM G. MCCORMACK AND OTHERS, APPELLANTS.

Order affirmed, without costs, on the ground that the motion should not have been made, pending appeal from the order refusing permission to plead the bankruptcy.

IDA E. AFFLECK, RESPONDENT, v. STEPHEN D. AFFLECK, APPELLANT.

Order affirmed.

Opinion PER CURIAM.

VIRGINIA W. SPENCER, RESPONDENT, v. GEORGE R.

BALDWIN, APPELLANT.

Order affirmed, with $10 costs, and disbursements.

Opinion PER CURIAM.

FRANCIS H. SALTUS, APPELLANT, . ELLIOT F. SHEPARD AND OTHERS, RESPONDENTS.

Reargument granted and motion denied, without costs, and without prejudice to a renewal upon proper notice.

Opinion per DANIELS, J.

INDEX.

ABORTION—Indictment-what degree of precision and certainty is required
therein meaning of "pregnant woman."] Section 11 of 3 R. S. (6 ed.),
932, provides that "every person who shall administer to any pregnant
any medicine
woman, or prescribe for any such woman

or shall use or employ any instrument or other means whatever, with in-
tent thereby to procure the miscarriage of any such woman, shall, upon
conviction, be punished," &c.

Held, that an indictment thereunder was not rendered insufficient by the substitution therein of the words "a woman with child" for the ECKHARDT V. PEOPLE.... words "pregnant woman."

ACCEPTANCE – Conditional promise to accept drafts.

See CONTRACT.

ACCIDENT INSURANCE:

See INSURANCE.

ACTION-By the people to recover land wrongfully obtained from a town when it cannot be brought.] 1. Chapter 49 of 1875,-providing that where money or property, held or owned officially or otherwise for any public or governmental interest, by any public corporation, board, officer, custodian, or agent of any portion or subdivision of the State, shall, without right, be received, converted or disposed of, the people of the State shall have a right of action to recover the same,--does not authorize the people to bring an action to set aside a conveyance of certain land from a town to a corporation, made in pursuance of a resolution adopted at a town meeting, which resolution directed the said land to be so conveyed on payment by the said corporation of a sum to be fixed by appraisers, on the ground that the corporation packed the town meeting with spurious and fraudulent voters, and thereby procured the adoption of a resolution detrimental to the interest of the town.

PEOPLE v. NEW YORK & M. B. R. R. Co....

2. Chapter 49 of 1875-who are necessary parties to an action brought under it.] If such an action could in any event be maintained, the town would be a necessary party thereto, as it, being the party defrauded, would be entitled to decide whether to repudiate or affirm the sale, and also to be heard as to the disposition to be made of the land in case the conveyance should be set aside. Id.

3. A town cannot disaffirm a deed procured through fraud without restoring what it received under it.] To authorize either the people or the town to disaffirm or set aside such a deed, all that had been received Id. under it would first have to be restored.

4.- Constitutionality of chapter 49 of 1875.] Quare, as to the constitutionality of those provisions of the act of 1875, vesting the title to the property or money, the subject-matter of the action brought thereunder, in the people of the State.

Id.

PAGE

525

[619]

ACTION-Continued.

What does not authorize one to bring an action in the name of the over-
seers of the poor--costs.

PACE

..... 274

See JOBBITT v. GILES..

ADDITIONAL FINDINGS:

See FINDINGS.

ADMISSIONS-Of deceased on applying for a policy of insurance-right
of the company to give evidence thereof will be preserved by a provision to that
effect in an order directing a bill of particulars to be given.

See DWIGHT v. GERMANIA INS. Co.....

..

167

Of deceased owner of land—admissible against those in privity with
him-when declarations inadmissible as mere hearsay.

See ROSE v. ADAMS.

AGENT — Liability of, to taxation upon moneys held by him for invest-

389

APPEAL-Settlement of case—judge or referee cannot make additional find-
ings on- — Code of Civil Procedure, § 1023.] 1. Under section 1023 of the
Code of Civil Procedure, and the other sections thereof touching the sub-
ject, a judge or referee cannot be required or permitted to make ad-
ditional findings of fact or of law upon the settlement of the case, after
his report or decision has been rendered. PALMER v. PHOENIX Ins. Co... 224
2.
Rule 32.] So far as Rule 32 conflicts with these sections it is
inoperative. Id.

3.

Order of County Court-when it is not appealable to the General
Term.] No appeal lies to the General Term from an order of the County
Court denying a motion for a new trial, made in an action originally com-
menced in a justice's court. The appeal should be taken from the judg-
ment entered in the County Court.

2

PERRY V. ROUND LAKE CAMP MEETING Ass.

293

Discretion of surrogate in opening a decree, reviewable on appeal.
See STORY v. DAYTON..

450

A surviving surety to a joint undertaking on appeal, is liable to the
successful party, in case the other surety dies insolvent.

See COMINS v. POTTLE.

287

Undertaking on-power of the court to amend it, on a motion by one

of the sureties.

See SULLIVAN v. CONNORS..

137

Power of the Supreme Court to direct money to be paid to an executor,
to defray the expenses of an appeal from a decree admitting a will to probate.
See SWENARTON AND ANOTHER v. HANCOCK AND ANOTHER...

43

Upon dismissal of-costs must be taxed by the clerk-cannot be taxed

by a judge under section 311 of the Code.

See ANDREWS v. LONG..

24

APPEAL- Continued.

When the court will not restrain the enforcement of a judgment
abating a nuisance, pending an appeal.

See EMMONS v. CAMPBELL....

To Court of Appeals-when sureties on undertaking on are liable for

all the costs of the action.

See BURDETT v. LOWE

County Court judgment on a report of a referee in an action com-
menced in a justice's court-how reviewed-motion for a new trial need not be
made in County Court.

See COOK v. DARROW......

PAGE

582

588

ARBITRATION-Failure of the arbitrator to be sworn-what a waiver of.
See KELSEY v. DARROW

ARREST-Arrest for misdemeanor-not proper without process.] 1. A
police officer is not authorized, without process, to arrest a person as a
common prostitute, on the ground that she is a disorderly person, unless
the offense was committed in his presence.

PEOPLE ex rel. KINGSLEY v. PRATT

arrest

to

2. Construction of a city ordinance authorizing such arrest.] A city
ordinance providing that "policemen shall have power
all vagrants, common prostitutes, drunkards and other
disorderly persons found in the city," must be construed as a power to
arrest such offenders in the manner required by the general common and
statutory law of the State, and not as giving additional power to such
officers, not warranted by and not in harmony with such general law.
Id.

3. Form of a complaint before a magistrate.] A complaint before a
police magistrate to the effect that the complainant had heard and be-
lieved a person to be a common prostitute, without stating the source of
his information, or the grounds of his belief, will not justify the magis-
trate in proceeding with the trial of the person upon such charge. Id.

4.

125

300

Motion to vacate an order of arrest-where it must be made-Code
of Civil Procedure, §§ 568, 769.] Section 568 of the Code of Civil Proced-
ure, authorizing a motion to vacate an order of arrest, founded upon
proof by affidavit on the part of the defendant, to be made "to the court,
or, if the order was granted by a judge out of court, to any judge of the
court upon notice," is not in conflict with, nor does it abrogate the pro-
visions of section 769 of the said Code, which requires all motions, upon
notice, in an action in the Supreme Court, to be made within the judicial
district in which the action is triable, or in a county adjoining it, except
that when it is triable in the first judicial district, the motion must be
made therein. SUTTON v. SABEY...
557

5. Order of arrest-when it should not be vacated on conflicting affi-
davits.] When the facts on which an order of arrest is granted are not
extrinsic to the cause of action, but the nature of the action alone fur-
nishes the authority for granting it, it should not be vacated upon evi-
dence tending to disprove the existence of the cause of action; the merits
of the controversy should not be determined upon affidavits, but should
be allowed to await the trial of the action. PECK v. LOMBARD
... 63

6.

Code of Civil Procedure, § 552-when a defendant may be arrested
in an action brought here,on a judgment obtained in a foreign State.] Under
section 552 of the Code of Civil Procedure, a defendant may be arrested