ABATEMENT AND REVIVAL.

1. In an action for an accounting be-
tween partners one of the schedules
of the account consisted of items
claimed to have been paid by de-
fendant for repairs to real estate
purchased by the firm, but title to
which was taken in the name of
defendant. Defendant was asked
if he paid the items in said sched-
ule; this was excluded on plaintiff's
objection. Previous to this it had
been shown that the case had been
tried partially before another
referee, who died before the trial
was completed; defendant testified
that he had vouchers for the pay-
ments made by him which had
been left with the former referee;
that he had been informed by the
person in charge of said referee's
office that they had been trans-
mitted to the new referee, and that
the latter had not been able to find
them. Held, that the evidence was
competent and its exclusion error.
Van Bokkelen v. Berdell.
141

2. An action in equity for an account-
ing between copartners is an ap-
propriate, if not an exclusive,
remedy to adjust and settle the
partnership affairs. Watts v. Adler.

646

3. Although upon dissolution of a
firm one of the copartners is alone
authorized to liquidate the firm
business, he may maintain an ac-

tion for an accounting and thereby
compel a copartner to pay over
any balance that may be estab-
lished against him, or in case of
deficiency in firm assets, to contri-
bute his proportion of what is re-
quired to discharge the debts of
the firm.
Id.

ACTS OF CONGRESS.
Inasmuch as no penalty is imposed
either upon the bank or the bor-
rower by the National Banking Act
(U. S. Ř. S. § 5201) for a violation
of the provision thereof prohibit-
ing a national bank from making
any loan or discount on the secur-
ity of the shares of its own capital
stock, except as specified, such vio-
lation may not be urged against
the validity of the transaction by
anyone except the government; at
least, unless the objection was
raised before the contract was exe-
cuted or while the security was in
the hands of the bank. Walden
Nat. Bank v. Birch.

221

ADMISSIONS AND DECLARA-
TIONS.

In an action to recover damages for
injuries to plaintiff's property
abutting on a public street in New
York city, the fee of which is in
the city, arising from the building
and maintaining of defendants'
elevated road in said street, for the
purpose of rebutting the presump-
tion that plaintiff owned the ease-
ments in the street, defendants
proved that before she acquired
title said easements had been inter-
fered with substantially to the same
extent as when the action was
brought. They also proved that
proceedings had been instituted to
acquire from plaintiff the right to
maintain and operate the road in
front of her premises, and the court
found that in such proceedings

3. In 1826 B., the owner of certain
land in the city of R., laid it out
into lots, and a map thereof was
recorded; he sold and conveyed a
lot, which in the deed was de-
scribed by number, as designated
on the map, which was referred
to; this showed the lot as bounded
on one side by an alley. The alley
was used by the public until 1846,
when such use was abandoned. C.
became the owner of said lot in
1856; he was at the time the owner
of the lot on the opposite side of
of the alley, and had since 1850
kept the same closed, had planted
trees and erected a coal shed
thereon. He continued in the
actual, exclusive and notorious
possession thereof, claiming to
own it until his death in 1888. In
1860 C. conveyed the lot first men-
tioned by the description con-
tained in the original deed. Plain-
tiff became the owner thereof in
1884. Defendant, in 1888, became
the owner of part of the other lot,
the description in his deed includ-
ing the alley; he entered into pos-
session and began the erection of
a building thereon. In an action
to restrain defendant from exclud-
ing plaintiff from using as a way
the strip of land formerly the

alley, held, that while the grantee
of B. of plaintiff's lot acquired a
right of way in the alley, the ease-
ment had been lost by the non-
user of plaintiff's predecessors, and
by the adverse possession of C.
and his successors.
Id.

AGREEMENT.

See CONTRACT.

AMENDMENTS.

An action to foreclose a mechanic's
lien was commenced in a County
Court; the lien was for $1,670.10.
The complaint was amended on
trial so as to demand only $800.
It was claimed by the owner that
the court did not have jurisdiction.
Held, that as there was nothing
in the summons to show what the
action was brought for, it being
under the Code of Civil Procedure
of the same form in all cases
(SS 416, 418), the court acquired
jurisdiction when it was served,
and had power to amend the com-
plaint. Van Clief v. Van Vechten.

571

1. Upon the trial of an issue of fact
by a referee or by the court with-
out a jury, a refusal to make any
finding whatever upon a question
of fact, where a request to find is
seasonably made by either party,
or a finding without any evidence
tending to sustain it, is a ruling
upon a question of law (Code Civ.
Pro. 993), and when duly ex-
cepted to, serves as a notice to the
respondent of an intention to raise
on appeal a question of legal er-
ror and puts upon him the respon-
sibility of adding by amendment
of the case any omitted evidence
on the question. Van Bokkelen v.
Berdell.
141

2. Where, in an equity action, no
objection is raised by answer or

4. When the findings of a court are
so inconsistent that they cannot
be reconciled, those which are most
favorable to the appellant are con-
trolling upon the appellate court.
Traders' Nat. Bank v. Parker. 415

5. This rule, however, applies only
when the findings cannot by rea-
sonable construction be reconciled;
it is the duty of the court to recon-
cile them, if possible.
Id.
6. An action to set aside as fraudu-
lent an assignment for the benefit
of creditors was brought by plain-
tiff on behalf of himself and other
creditors who desired to join.
Two attachment creditors whose
claims were admitted by the in-
ventory, were made defendants.
They answered, admitting the al-
legations of the complaint as to
fraud and joined with the plaintiff
in the action. The judgment sus-
tained the assignment and required
said creditors to turn over the prop-
erty attached to the assignee.
Held, that said creditors had the
right to appeal. Roberts v. Vietor.

585

7. Where, in a proceeding, under the
provision of the Judiciary Act
(§ 25, chap. 280, Laws of 1847), as
amended in 1880 ($ 1, chap. 354,
Laws of 1880), in reference to the
removal of justices of the peace,
upon coming in of the report of
the referee, the proceedings were
dismissed, and upon application
of both the complainant and re-
spondent, the court certified and
taxed the counsel fees and dis-
bursements of both parties, held,

1.

2.

Statutes providing the procedure
for assessing and collecting taxes,
for the sale of land for their non-
payment, and for the redemption
of lands sold for unpaid taxes, are
applicable to infants and persons
under disabilities, unless they are
excepted from the operation of
the act. Lery v. Newman. 11

The provision of the charter of
the city of Brooklyn of 1873 (§ 9,
tit. 8, chap. 863, Laws of 1873),
providing that where lands sold
for unpaid taxes belong to an infant
having no guardian, no convey-
ance shall be executed by the
registrar until at least one month
after a guardian has been appointed
or the disability removed, and
until the expiration of the month
authorizing the redemption, does
not apply to the sale and redemp-
tion of land sold for taxes read-
justed under the act of 1883 (Chap.
114, Laws of 1883), providing for

the settlement and collection of
arrearages of unpaid taxes in said
city.
Id.

3. Accordingly held, where an infant
owner of land, sold in pursuance
of the latter act, was served per-
sonally with notice of sale and
failed to redeem within the time
prescribed by the act, that the
right of redemption and the title
of the infant was cut off. Id.

4. Where, in an action to have an
assessment for a local improvement
upon plaintiff's land in the city of
Buffalo adjudged illegal and to
restrain its collection, it was not
claimed that any land outside the
district upon which the assessment
Iwas made should have been in-
cluded, nor was any fraud upon
the part of the assessors alleged,
but the claim was, and it was
found by the trial court, that
the assessment upon plaintiff's
land was largely in excess of its
proportionate benefit, held, that
the action was not maintainable;
that while the facts might have
entitled plaintiff to relief upon
review by certiorari, as the matter
was one within the jurisdiction of
the assessors under the city charter
(SS 1, 2, 3, tit. 6, chap. 519, Laws
of 1870), a mere error of judgment
on their part furnished no support
for collateral attack by action.
Hoffeld v. City of Buffalo. 387

5. It was conceded on the trial and
the court found that the assessors
in making the assessments disre-
garded the value of buildings or
other improvements upon
the
respective parcels of land assessed
"for the reason that they deter-
mined that the amount of benefits
was not affected by the improve-
ments." Held, that this did not
show that the assessors proceeded
upon a wrong rule of law, but was
simply a determination as to what
property was in fact benefited, and
the error, if any, was one of judg-
Id.

ment.

6. Where money has been collected
under an assessment for a local
improvement which is valid on the
face of the record but is illegal by
reason of the existence of some
fact outside thereof, it may not be

1. Under the Mechanics' Lien Law
of 1885 (Chap. 342, Laws of 1885),
the filing of the prescribed notice
originates the lien, and until this
is done the laborer or material
man has no preferential right to
be paid out of the sum due the
contractor from the owner of the
building. If, before notice is
filed, the contractor assigns to a
creditor in payment of his debt,
the whole or any portion of the
moneys due or to become due to
him on his contract, the assignor
is entitled to the same in prefer-
ence to the lienor. Stevens v.
Ogden.

182