The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-07-22
THE COURTS.
Lighting the Public ParkS--Anothcr Yer
dict Against the Comptroller.
APOOR MANS RIGHT TO LIVE.
Serious Charge Against Gus
tom House Gauger.

surrogate Hutchings yesterday heard testimony
In she matter OF the VIII OF the late John Martin
who died in April last BY his will. made in De-
cember, 1879 he beGueathed all his estate, valued
nj $40, 600, 20 hts widow, with the exception or
$3.50 to George Martin, one OF hts brothers. The
will In contested bT his four 0rotnera on the
grcund OF undue influence and mental incapacity.
Tine subscribing Witnesses, one OF whom was
Judge McAdam. proved the execution OF the will.
and the physician wao attended the deceased
testified to his soundness OF mind at the time the
will was made. The Court reserved judgment.
John Brennan and Joseph Fields (boys,,
charged with burgariously entering the house OF
Sarah E. Meyer, No. so West Third street, on the
Stat OF May, and stealing q dress, q fur tppet, a
sealskln cap, two gold chains ana a ring. were
yesterday tried at GENERAL Sessions, and as there
was NO evidence to connect the Boys with tho
prence the jury rendered . verdict or not guilty.
The Mr. William Il. Gale, attorney, whom Judge
DAVIS has directed to show cause why he should
not be stricken from the roll OF attorneys, is not
sx.Judge William II. Gale, OF Brooklyn
LIGHTING THE PUBLIC PARKS.
The New York Mutual Gas Light Company, on
the 3lst OF April 1873, contracted with the De-
partment OF Public PARKS TO light the lamps in the
parks and squares Tor $50 so o year per lamp.
Recently the company applied TO she city Tor pay
ment OF 81 sos IL, the amount due on the contract
from January. 1874 and payment OF which had
been refused. Suit was thereupon begun IN the
Supreme Court, and the city put In IS answer
that the appropriation for lighting the parks and
squares was exhausted, and that the claim had
been incurred, II at all, oy tne department. OF
Parks In excess OF the amount appropriated.
motion was made on behalf OF the gas company
TO strike out portions or the answer as frivolous
and Irrelevant, and to make ~ more dennite.
Judge Donohue, before whom the case was heard,
In Supreme Court. Chambers, yesterday made the
following dec5ion:-
italy that IL Is not convenient TO pay.
Second-Tne second defence Is also frivolous 1t
is III the alternative 1t does not state that there
was appropriation in the treasury when the
contract was made which is the only defence
Third-Ir the second defence be not frivolous
then the defendant should be compelled to make
tt SPECIFIC by alleging the amount OF the appropri
alton and how 1t has DeeA spent. .rI
The above is one OF the severest judicial rebukes
given to the Comptroller In his long series OF liti-
gated cases 70 prevent paying the city creditors
their just dues.
A POOR MANS RIGHT TO LIVE.
Ajudgment was obtained some time since in q
suit brought by Philip @. Cummings against
william b. Timberman, ana In supplemental
proceedings the latter was examined TO
his property. He proved to have no property.
was further shown that he drove q milk route,
from the earnings OF which he supported
himself and family. An application was made
to Chief Justice Daily holding special Term
Of the Court OF Common Pleas to apply y portion
OF those earnings toward the payment OF the
Judgment Judge DAILY gave his decision In the
case yesterday, involving an important principle
and OF special interest 10 the working classes.
The following In
THE DECISION.
This application must be denied. The $40 that
the plainLin asks to have applied toward the
fendant Tor his personal services during the past
sixty days ana cannot be so applied. Then IL
app tnas ny MS amaayis thas such earn,
supported bv him, consisting OF his father mother
and sister. he drives n milk wagon, which is
mortgaged for more than IL Is worth, and earns q
small amount daily by getting milk from person
In wcstchester and retailing 1t 10 his customers
liked price, to paid out OF the money which ne
obtains from the customers to whom lie retais it.
The small amount remaining beyond what must
be paid Tor the milk Is evidently not more than
sUfnclent 10 support himself and the family sup
ported by him. Tho proceeding must, therefore,
be discharged, as the amount which is due Will be
required wnen collected from time TO time Tor the
support OF himself and family The supplemented
proceedings therefore, must be discharged, and
the application for the appointment OF u receiver
denied.
THE LAW OF ATTACHMENTS. 9
William N. Fitzgerald brought suit against E.
r. Belden to recover S3ss. Application was made
to Chief Justice Daily at Special Term OF the
Court OF Common Pleas for an attachment against
the defendant on the ground that ne intended to
defr2ud mis- creditors. Anldav1ts were made TO
the effect that defendants books or account had
been secreted and were not allowed to be seen by
the creditors. Upon these sffidsvIts an oroer TO
show cause was granted. Judge DAILY yesterday
rendered the following decision In the case:-
The afhdavIt in this case was net SUFFICIENT 70
authorize attachment. The books secreted
constituted that KIM oil property which Is subject
TO levy being property oil thar physical and tan
piblo nature which could be seized by enc sheriff
and sold and delivered by him 10 purchasers. II
IL had appeared that che secreting OF the books
~ the plalntlfr's employees was done by the
authority or with the knowledge and appreciation
OF the defendant, Belden, then 1t would snow
IN which the defendant had or was about
TO secrete his property WIN an intent TO deiraud
his creditors. Snch an intent on the part OF the
Aeienoant cannot he assume ed from the act OF his
employe without connecting the defendant by
some evidence with the act, and there Is nothing
IN the affiJavIt to snow that lie mad any knewl
edge OF II. There IS not only this delect In the
a1davit, but 1t IL not even directly sworn TO, but
Is referred to as contained IN another AFFIDAVIT
without stating that that affidavtJ Is any where
nile, Or without copy OF tue afidavit beng an
nexed TO the a1idavlt on which the attachment Is
ordered, which s a kind OF evidence altogether
TOO loose to be received as proof Of the TACT relied
upon Tor the attachment, II that fact were other.
wise SUFFICIENT. me attachment must therefore
be discharged upon the ground thai IL was not
warranted by the afndavlt.
GOTNG EOR GkTHEp