1. The true test of criminal responsibility,
where the defense of insanity is interposed,
is whether the accused had sufficient reason
to know right from wrong. If he had, it is
immaterial whether he had sufficient power
of control to govern his actions.- Walker v.
The People, 23.
2. Where the defense of insanity is interposed,
it is the duty of the prisoner, or some one
in his behalf, to overcome the presumption
of sanity by satisfactory evidence, and the
people may rest upon such presumption
without resorting to any proof.-Id.
3. The court charged that to establish the de-
fense of insanity, the facts constituting it
must be clearly proven." Held, No er-
ror.-Id.
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4. On the trial of an indictment where a de-
fense of insanity was interposed, the Court
refused to charge as part of the test of
criminal responsibility in such a case, “and
whether or not he (the accused) had suffi-
cient power of control to govern his ac-
tions," but charged that he must have suf-
ficient control of his mental faculties to
form a criminal intent before he can be
held responsible. Held, No error; that the
Court went as far as it could on the subject
of control. Walker v. The People, 131.
5. The presumption that every man is sane is
sufficient to establish the prisoner's sanity,
until repelled by proof; if the prisoner
gives evidence tending to overthrow it, the
prosecutor may produce answering testi-
mony, but must satisfy the jury upon the
whole evidence that the prisoner was re-
sponsible.-Id.
6. A charge that "the defense of insanity
must be clearly proved," is not erroneous;
especially where it is accompanied by an
instruction that it is the duty of the jury to
give the prisoner the benefit of any reason-
able doubt.Id.
INSOLVENT INSURANCE COMPANIES.
1. In pursuance of a six months' notice by the
receiver, certain policies were presented for
valuation before the time expired and their
claims established and allowed. After the
time had expired, the parties insured thereby
having died, application was made to the
Special Term to have such policies revalued
as death claims; which application was de- |
nied on the ground of want of power in the
court to admit any claims as death claims
where the deaths occurred after the expira-
tion of the time fixed by the notice. Held,
Error; that the court has jurisdiction of
the entire subject and may control all the
proceedings until all the claims have been
established and the fund finally distributed.
-In re Att'y Gen. v. The Continental Life
Ins. Co., 73.
2. The Attorney General has no statutory au-
thority to appoint special counsel to act gen-
erally for him in the conduct of suits or pro-
ceedings in which the State is interested; nor
can such authority be deemed to be vested
in him as incident to his office. He can
only appoint counsel to appear at a term of
court, or at chambers, when he cannot be
present in person.-In re Att'y Gen. v. The
Continental Life Ins. Co., 163.
3. Allowances to the Attorney General for
services of special counsel employed by him
to aid in the settlement of the affairs of in-
solvent corporations in the hands of a re-
ceiver, to be paid out of the fund, are not
authorized. Id.
4. Plaintiff was retained by the officers of an in-
surance company to oppose its being placed
in the hands of a receiver and did so, but
was unsuccessful. At the request of said
officers he afterward took appeals to the
General Term and Court of Appeals, op-
posed confirmation of the actuary's report
and rendered subsequent services.
That this did not make out an entire con-
tract for the performance of which the
company or its assets became bound at the
time of the original retainer so as to create
a liability on the part of the receiver for
services rendered after the date of his ap-
pointment.-Barnes v. Newcomb, 433.
5. Where the opposition on the part of the
company to the appointment of a receiver
has been in good faith, and the company
had probable cause and reasonable ground
for such opposition, such reasonable ex-
penses as they incurred for those purposes
should in some form be allowed to them.
Yet their claim to be protected in their
defense of the corporation or that of the
attorney to be paid out of the fund for his
services, however just, is not an absolute
right, enforceable by action, but is a matter
to be addressed to the sound discretion of
the court in which the proceeding is pend
ing.-Id.
1. The statute of June, 1879, regulating the
rate of interest, does not affect obligations
existing before January 1, 1880.-Prouty v.
The L. S. & M. S. RR. Co., 310.
2. A judgment is the highest form of contract
known to the law, and a judgment recover-
ed before the said statute of June, 1879,
took effect, is not affected by said statute,
but is governed by the statute regulating
interest at the time of its recovery.-Id.
See BAR, 5; CONTRACT, 4; CORPORATIONS,
24; INTERPLEADER, 2.
1. One J. assigned a mortgage to plaintiff.
After the assignment was recorded the
mortgage was attached in a suit brought by
the United States in a Federal Court against
J. A suit to foreclose the mortgage having
been commenced, the Federal Court, ou mo-
tion, ordered the attachment to be discharged
unless the United States consented to ap-
pear and yield to the jurisdiction of the
State Court in case the latter court should
direct the United States to be interpleaded
or substituted as defendant. An order was
afterwards made in this action, after hear-
ing counsel and the United States District
Attorney, directing the amount of the claim
to be deposited in court, and that the United
States be brought in as a defendant.
No error; that the United States is, in fact,
made a plaintiff; it comes in as a claimant
to the fund, and, by voluntarily appearing
in the State Court as such claimant, it sub-
jects itself to the jurisdiction of such court
and is bound by its decision.-Johnston v.
Stimmel et al., 470.
2. Where a sum is awarded by the court in
lieu of land taken by the city for opening
streets, a lien upon the land in the form of
a mortgage is a lien upon the award, and
the mortgagee may be interpleaded to de-
fend a suit brought against the city to com-
pel the payment of said award. The city
holds the money as a trustee, and is not lia-
ble for interest until demand of payment is
made.-Barnes v. The Mayor, &c., of N. Y.,
See COSTS, 7; PARTIES, 2.
1. A recital in a judgment that the summons
and complaint had been served upon one of
the defendants is sufficient to show that the
court had acquired jurisdiction; a defect in
the proof of service filed with the judgment
roll does not show a want of jurisdiction or
affect the validity of the judgment. - Maples
v. Mackey, 349.
2. The Statute of Limitations is no defense to
a proceeding, under § 375 of the Code of
Procedure, to charge a defendant not origi-
nally served with summons with payment
of the judgment unless such defense existed
at the time the action was commenced.-Id.
3. In an action against joint debtors, partners,
the summons was served only on one de-
fendant, and judgment was entered against
him alone. In a proceeding against the
other defendant, under § 375 of the Code of
Procedure, Held, That the judgment against
only one of the defendants was not author-
ized, as they were sued on a joint liability,
but that it was an irregularity merely and
not void; that this defendant could not ob-
ject to it on the ground of such irregularity
after verdict against him, and that, under
380, a judgment in the same form as in an
action against this defendant alone was
proper. Decker v. Kitchen, 381.
4. At the time the former suit was commenced
this defendant was a non-resident, and
neither he nor the firm had any property
in the State. Held, That plaintiff might
have proceeded against the other partner
alone under § 136, and the judgment being
unsatisfied. could maintain an action against
this defendant on proving his joint liability;
that the summons in this view of the case
to have been regular should have been in
the form of a summons to commence an
ordinary action; but the irregularity in its
form was waived by the defendant proceed-
ing in the action to judgment without ob-
jection.—Id.
5. An action against one of several partners
on a firm liability does not extinguish the
original cause of action against all.-Id.
See EXECUTION, 1.
1. Plaintiff's intestate in his lifetime having
recovered judgment by default against de-
fendant L., and then assigned said judg-
ment to one S., and subsequently the
default being opened, and upon death of
plaintiff's intestate an order made reviving
the action and directing S. to be brought in
as party defendant, and the trial having
then proceeded before the referee thereto-
fore appointed, by consent, and judgment
given in favor of defendant S. against his
co-defendant L., Held, That the court hav-
ing the facts before it, had power to adjust
the rights not only between plaintiff and
defendants, but as between co-defendants,
and that without the presence of S. there
could have been no final determination of
the rights of the parties.-Derham v. Lee
et al., 75.
2. After an execution was levied on the prop-
perty of a firm one of the partners, W.,
made an arrangement with the creditor by
which the latter was to purchase the prop-
erty on the sale and hold it in trust for him
until the debt was paid. This was done and
the judgment was paid. In an action after-
wards brought on said judgment the court
charged that the arrangement was a fraud
on the other partner and could not be en-
forced. Held, Error; that even if W. in-
tended thereby to defraud his partner, that
would not deprive him of his defence of
payment or entitle plaintiff to maintain an
action for the recovery of a debt which had
already been paid.—Blackburn v. Weisgerber,
3. A judgment may always be impeached for
fraud.-The Bank of Monroe v. The State,
273.
4. In June, 1858, a judgment was obtained
against plaintiff's ancestor, McK., upon
service of summons by publication. McK.
was a non-resident and did not appear. No
attachment was issued in that action. Cer-
tain real estate belonging to McK. was sold
under execution in said judgment to de-
fendant. In an action to recover posses-
sion, Held, That the former action was void
as to McK., as he was beyond the jurisdic-
tion of the court and did not appear, and
that the proceeding was not one in rem, as
the complaint did not refer to or describe
any property, but demanded a money judg
ment.-McKinney et al. v. Collins, 281.
5. The mere averment that a judgment has
been recovered in an another State, followed
by the averment of its assignment to plain-
tiff, is not sufficient, in the absence of any
further allegations, to make out a cause of
action.-Horton v. Shipherd, 453.
6. C. agreed with one G. to supply the tenants
of the latter with steam power for $4,000 a
year, to apply on the unpaid balance of the
purchase price of machinery sold to C.
Afterwards, when about $9,000 worth of
steam power was due, an arrangement was
made by which the amount due was fixed
at $4,000, which was paid to G. In an ac-
tion brought by one of G.'s creditors the
court found that the arrangement was
fraudulent and void and rendered a money
judgment for the balance of steam power
due. Held, Error: that the court had no
power to convert an obligation payable in
steam into a moneyed demand payable in
cash, in the absence of evidence to establish
that it was of any such value.-Mc Lean v.
Cary et al., 546.
7. A referee in a separate proceeding having
reported the amount of assets of defendant
in the hands of certain stockholders, the
receiver filed his report and a petition set-
ting forth such proceeding, and the amount
necessary to be restored by said stock-
holders to enable him to make the neces-
sary distribution. A copy of the petition
and notice of application to the court was
served on the stockholders, who appeared
and were heard at Special Term, and on the
reference which was ordered, and raised no
objection to the report of the referee to de-
termine the amount they should restore.
Held, That under these circumstances the
court had the right to make its final deter-
mination broad enough to settle the rights
of all the parties before it.-The People v.
The Hydrostatic Paper Co., 551.
8. A levy is not a satisfaction when the debt
is not paid and the debtor is not deprived
of his property.- Viall et al. v. Dater, 572.
See APPEAL, 11; DIVORCE, 3; INTEREST, 2;
JOINT DEBTORS, 1, 3; PRACTICE, 21;
SHERIFFS, 7: STAY, 3, 4; USURY, 11.
VOL. 14.-No. 26a.
1. Where a person purchases real estate at a
judicial sale with full information as to its
situation, he cannot be relieved from his
purchase even though a right of way to it
over lands of adjoining owners cannot be
obtained.-Coates et al. v. Fairchild et al.,
The fact that a portion of the land pur-
chased was enclosed by a fence with land
of an adjoining owner furnishes no good
reason for relieving the purchaser from his
bid where such owner claims no title thereto
and consents to the removal of the fence to
the proper line; nor will the fact that a
privy has been erected on the premises for
the convenience of occupants of other lots
and without claim of interest in the premi-
ses.-Id.
3. It is well settled that the court will relieve
a purchaser of lands at a judicial sale if the
title be a doubtful and unmarketable one,
even though it be probable that the pur-
chaser would never be disturbed in his pos-
session.-Lee v. Lee et al., 257.
1. A motion for a jury trial in an equitable ac-
tion is not a denial or challenge of the
equitable jurisdiction of the court. To raise
the question of such jurisdiction on appeal,
an objection to it should have been made in
the court below.-Powell v. Waldron et al.,
545.
See APPEAL, 17; ARREST. 3; ASSIGNMENT
FOR CREDITORS, 1; INJUNCTION, 4; IN-
SOLVENT INSURANCE COMPANIES, 1; IN-
TERPLEADER, 1; JOINT DEBTORS, 1;
JUDGMENT, 4, 7; JUSTICE'S COURT; NA-
TIONAL BANKS, 1, 2; POOR, 1; PRACTICE,
23; SURROGATES, 1; TOWN AUDITORS, 2;
WILLS, 2.
1. The relationship of a juror to a party is
simply a matter of disqualification, the
same as over age, etc., and is ground for
challenge; but if accepted without objec-
tion, though none of the parties knew of
the disqualification, no question can be
raised as to his competency.-Salisbury v.
McCloskey, 155.
1. Where a notice of appeal from a judgment
of a justice of the peace to the county court
was not signed by the appellant but by his
attorney, while no authority was apparent
on the face of the notice, or was shown
aliunde, for the attorney to sign the same,
Held, That the county court acquired no
jurisdiction, and therefore a dismissal of
the appeal was proper. No distinction can be made between a corporation and a natural person in such a case-The Albert Palmer Co. v. Dickinson, 191.
1. A failure for a year and a half to serve an order setting aside a judgment dismissing a complaint on payment of costs is such laches as will deprive plaintiff of all rights under it.-Harris v. Van Wagenen, 212.
2. An agreement between counsel that the order is not to be served nor the costs paid until the return of plaintiff from another State, will excuse a delay to serve until such time; especially where the cause of action would be barred by the statute of limitations.-Id.
3. Where the defendants in actions brought by a receiver joined issue and permitted one action to be tried and three years to elapse before moving to set aside the appointment of the receiver on the ground of irregularity, Held, That they were guilty of laches, and that the motion was properly denied.-Nicol! v. Boyd, 340.
4. Where a plaintiff allows an action to become stale by reason of the great and unusual length of time he permits it to slumber after issue joined without taking any steps to bring the same to trial, he cannot plead luches in defense of a motion made by defendant demanding a bill of particulars.Winchel v. Martin, 458.
See APPEAL, 4; PLEADING, 5, 17; PRACTICE, 15.
1. Petit larceny is no longer a felony, but a mere misdemeanor, triable and punishable as such.-The People ex rel. Loughlin v. Finn, 16.
2. A warrant of commitment by a Court of Special Sessions, which states that the conviction was for the "misdemeanor of petit larceny." sufficiently describes the crime; it is sufficient that it appears in the warrant that the conviction was for an offense of which that court has jurisdiction.--Id.
3. On the trial of an indictment for larceny the prosecutor, C.. on cross-examination, testified that one H. told him that defendant, prior to the alleged larceny, took C.'s wife out riding. On the re-direct he testified that H. told him in the same conversation that defendant helped put the box, the subject of the larceny, into the wagon. Held, That the declaration of H. was inadmissible, either as original evidence of the fact or as part of the conversation.-The People v. Beach, 133.
4. The shifting of money from one place to another upon a table does not constitute larceny. But the removing, with an intent to steal it, of an amount more than $25, and handing it to a confederate, renders the case one of grand larceny.-The People v. Tweed, 492.
1. Defendant's intestate agreed to rent certain rooms if plaintiff would make certain repairs. He afterwards moved in and continued his occupancy until his death. Held, That these facts entitled plaintiff to recover the rent accruing from the occupancy; that, in the absence of proof to the contrary, it was to be presumed that the alterations were properly made.-In re Schreyer v. Holborrow et al, 193.
A lease provided that the lessee might retain until its termination so much of the rent as the lessors, one of whom afterwards died, in their judgment might not require for their support. In an action for rent, Held, That the testimony of the surviving lessor should be sufficient to establish that the entire rent was needed; but if not it was a fact which the referee could find from all the evidence.-Harris v. Hiscock, 219.
3. A lease contained a covenant for renewal at the end of the term, at a rent to be agreed upon, or, in case of disagreement, to be fixed by appraisers and an umpire; also a covenant that the lessor "shall have full liberty and choice" either to grant the renewal or to pay the value of the buildings on the lot, to be ascertained in the same manner as the rent. An appraisal under the covenant for renewal was had, each party finding and becoming liable to pay an appraiser. Held, That thereby the lessor's election was made and determined, and that the lessee having been subjected to the burdens of the covenant for renewal, was entitled to its benefits.-Crosby v. Moses, 337. 4. Where the lessor delivers the lease to the lessee's agent, thinking him to be a stranger, and intending the delivery to be in escrow, and such agent is, in fact, unauthorized to accept the lease for his principal, parol evidence of conditions of the delivery is admissible.-Pharis v. Gere, 387.
5. A lease for more than five years, by a lunatic's committee, is void―Id.
See ARBITRATION, 3; CORPORATIONS, 6; NEGLIGENCE, 12; PARTNERSHIP, 1; SPECIFIC PERFORMANCE, 1.
See EXECUTORS, &c., 25; SURETYSHIP, 9.
See WILLS, 8, 13, 16, 17, 25.
LIBEL.
1. A complaint in an action in libel alleged
that defendant after being sued for similar
slanderous charges retracted them in open
court and thereafter maliciously, &c., swore
to and caused to be read in court and placed
on the files of an office open to all the pub-
lic the defamatory matter set up. The al-
legations as to the former suit and retraction
were stricken out as irrelevant and scandal-
ous. Held, Error; that the averments
were inserted to show malice, which would
be necessary if the communication should
be held to be privileged; that defendant
was not aggrieved by its presence, and while
there might be a doubt as to the propriety
of putting it in this form that doubt is suf-
ficient to save the matter from being stricken
out as redundant or irrelevant. - Younger v.
Duffie, 458.
See ATTORNEYS, 2, 9, 10, 14.
1. Where the evidence does not absolutely
exclude the idea of accident, the jury are not
bound to conclude there was intention.-
Germain et al. v. The Brooklyn Life Ins. Co.,
286.
2. There is no presumption that an insane
man found dead has not committed suicide.
-Id.
3. A married woman who held a policy on her
husband's life surrendered it after eight
premiums had been paid and received the
surrender value and paid no more pre-
miums. Her husband died two years later.
In proceedings to wind up the company it
was held that the surrender was void, but
that claimant was entitled to a paid-up pol-
icy less the amount received by her. Held,
That she received all that she was entitled
to; that if she desired to repudiate the sur-
render and keep the policy in force, she
should have paid or tendered the premiums
as they came due; and then if they were
refused and the surrender was invalid a
suit to declare the policy in force might be
maintained. In re Atty. Gen. v. The Guar-
ian Mutual Life Ins. Co., 328.
4. An answer to a question in an application:
"Is your life now insured in any other
company? If yes, give the name of each
company and the amount in each," giving
the name of one company and the amount
therein is not a warranty that the life of the
applicant was not insured in any other com-
pany than the one named.-Rehwald v. The
Mutual Life Ins. Co., 531.
5. Entries on the books of an insurance com-
pany are competent to prove that a policy
theretofore issued by that company had been
cancelled prior to the time defendant's poli-
cy was issued.-Id.
6. A policy of life insurance provided that it
should cease if any premium should not be
paid within thirty days after it fell due. A
premium having fallen due June 10, 1877,
plaintiff's agent called on Feb. 10 to attend
to it and was informed by defendant's
secretary that it had been attended to;
but in fact the premium was never paid.
Held, That defendant was not estopped by
the statement of its secretary from asserting
the forfeiture, as plaintiff was not harmed
or prejudiced thereby, the policy having
lapsed before such statement was made, and
that there was no waiver of the forfeiture,
as the secretary's statement was made under
a mistake of fact.-Robertson v. The Metro-
politan Life Ins. Co., 549.
1. Prior to the New Code the statutes of a
foreign State were not available as a plea in
bar to an action brought in the courts of
this State.-Clark v. The L. S. & M. S. RR.
Co., 177.
See CORPORATIONS, 23; JOINT DEBTORS, 2.
LIQUOR SELLING.
See EXCISE.
LOTTERIES.
1. The provisions of section 28 of the statute
against lotteries, forbidding the publishing
of an account" of an illegal lottery, is not
in conflict with the provisions of the Consti-
tution designed to secure the liberty of the
press.-Hart et al. v. The People, 93.
1. One C. was employed by a lunatic to super-
sede the commission, but failed to do so. On
appeal from an order making him an allow
ance for his services the General Term re-
versed the order and denied the motion.
Pending the decision of the appeal the lu-
natic died. Some years after the order of
General Term was amended as to its date
by substituting a date prior to the death of
the lunatic. The order with its substituted
date was then re-entered and an appeal taken
therefrom. On motion for an order sub-
stituting the administratrix of the lunatic's
estate in the place of the committee and the
lunatic, Held, That if the committee's place
is vacant by reason only of his death it is to
be filled, if at all, by the court; that his heir,
devisee, executor or administrator cannot
be substituted as respondent; that the lu-
natic alone could be regarded as the adverse
party; that service of the order under its
original date was effectual to limit the time
to appeal, and that the order was discretion-
ary and not appealable to this court.—In re
Beckwith, 346.
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