Held, to raise no point, and to be no compliance with the statute. The second specification was, that there was not sufficient evidence to support the judgment. Held, not to specify any particular defect in the evidence. The third specification is, that the judgment should have been in favor of the defendant and against the plaintiff, with costs. Held clearly insufficient as a specification under the statute. The county court disregarded the points and affirmed the judgment of the justice. Held correct, and the judgment of the county court affirmed. Nolan v. Page. Opinion by E. D. Smith, J. MALICIOUS PROSECUTION. 1. Action for malicious prosecution and false imprisonment: judgment for plaintiff on trial by jury.- Where the defendant's counsel moved to dismiss the complaint, on the ground that it did not show that defendant was a resident of the county: Held, that an amendment on the trial was properly allowed. Van Voorhis v. Leonard. Opinion by E. D. Smith, J. 2. Defendant, after having preferred charges for larceny, under article 5, title 3, chapter 1, part 4 of Revised Statutes, which make it a larceny to sever, from the soil of another, produce growing thereon, of the value of $25, settled with the plaintiff, and gave receipt in full for all claims, and did not afterward prosecute the complaint. Held, that the objection on the trial that defendant was not responsible for such prosecution was invalid. The justice could not recognize a settlement, nor the parties compound a felony. The question as to what took place upon the arrest, and before the magistrate, and as to defendant's acts, were properly submitted to the jury. The charge of the judge that if the plaintiff submitted to the control of the officer, upon being informed by him that he had a warrant for him, it was a sufficient arrest; and, also, that count for false imprisonment could not be sustained, was correct. Ib. PARTITION-TRUSTEE. Plaintiff, as trustee, was seized of an undivided onefourth part of premises as tenant in common with defendants. The trustee was to receive the rents and profits and apply the same to the support, education and maintenance of an infant until he attained his majority, with full power, in the discretion of the trustee to sell, grant, assign and convey said premises and invest and hold the proceeds on the same trust. In an action by the trustee for a partition of said lands, Held, that the action can be sustained. The trustee is of legal age, and seized of the premises and vested with the whole estate subject only to the execution of the trust. The person for whose benefit the express trust is created (under 1 R. S., part 2, ch. 1, § 60), takes no interest or estate in the lands, but may simply enforce the performance of the trust in equity. Plaintiff being seized of the lands sought to be partitioned may maintain the action under the statute providing for partition of lands. Galleo v. Eagle. Opinion by E. D. Smith, J. PRACTICE. This action was on a bond payable to the heirs of one L. "to them, their heirs or their agents or to whomsoever they or either of them may designate," etc., was brought by plaintiff, as heir, to recover her share of the money due on the bond. The defendant is administrator of the estate of the obligor of said bond. There are seven other heirs besides plaintiff. The complaint, amongst other things, alleges, "that plaintiff is one of the heirs mentioned in said bond, and as such is entitled to an equal eighth part of the sum due thereon, there being eight and only eight heirs, and each is entitled to an eighth part," etc. It is also alleged that plaintiff offered to refer said claim, but defendant refused. The defendant, in his answer, denies the complaint, etc., and sets up a non-joinder of plaintiffs. There was judgment for the plaintiff and the judge on the trial granted costs to plaintiff, and plaintiff inserted costs in the judgment. Costs were not asked for in the complaint. The defendant made a motion to set aside the judgment as the costs were improperly allowed; the plaintiff should have made a motion. Held (1) that plaintiff was entitled to sue alone. That even if this was not so defendant waived the defect of non-joinder by not demurring. Such defect in this case could not be taken advantage of by answer that there were other heirs, not parties, appeared on the face of the complaint. (2) That on the facts alleged and proved in the case plaintiff was entitled to costs, and although the allowance by the court, without motion, was not regular, the judgment will not be set aside where defendant does not show any facts that render plaintiff's right to costs even doubtful. Judgment affirmed. Huss v. Willis, administrator. Opinion by Mullin, P. J. PRACTICE- - EVIDENCE. 1. A referee must pass upon a question at the time an objection is interposed, and cannot reserve his decision and decide it on the final disposition of the cause. Wagener v. Finch. Opinion by E. D. Smith, J. 2. Where plaintiff was advised by defendants, who were her attorneys, in an action, not to interpose any objections to their realizing as large an amount out of a fund as they could for their costs and expenses, assuring her that a certain proportion should inure to her benefit, and an allowance was made on hearing before a referee of a certain amount as their costs and expenses, it is not such an adjudication as to preclude the plaintiff, in an action between herself and said attorneys, from showing, by parol, what the arrangement between herself and said attorneys actually was. Ib. SALE PRIZE PACKAGES. The plaintiffs were merchants and manufacturers of candy in the city of Syracuse. Defendants reside in Seneca Falls. Defendants purchased of plaintiffs a quantity of candy and silverware. Plaintiffs were to put up the candy in packages, with tickets in certain packages. It was the intention of the defendants to sell the packages, and the purchaser who got a package with a ticket in it was entitled to a prize of silverware named on the ticket. The packages were what were cominonly called prize packages of candy, and plaintiffs knew of the use to be made of them by defendants. Plaintiffs bring this action for the value of said packages and the silverware. Held, that under the statutes relating to raffling and lotteries, the sale of such packages was unlawful, and as plaintiffs knew the uses to which the property in suit was to be put, is not entitled to recover. Judgment reversed. Hull v. Ruggles. Opinion by Mullin, P. J. STATUTE OF FRAUDS. 1. Plaintiff, by parol, purchased of defendant a number of sheep, agreeing to apply as part payment a note owing him by defendant, and to pay the balance in cash. No money was actually paid. Plaintiff and defendant, at the time of sale, separated the sheep from the flock and marked them with plaintiff's mark and put them in a separate inclosure, defendant agreeing to pasture them for a few days, and they were to be kept in a separate field, but upon suggestion that the pasturage in that field was poor, it was agreed to let them run with the other sheep. Defendant was to send to plaintiff's house for the note and the cash, but did not send, and subsequently, and soon after, sold the sheep to another party. Plaintiff tendered the note and a check, which being refused, he brought action for damage in a justice's court and obtained judgment. Defendant appealed to the county court, where a new trial was had. The county judge charged the jury that the contract was void under the statute, unless there was a delivery and acceptance of the sheep at the time of the bargain. The jury found a verdict, under the charge for the plaintiff. Held, that the evidence clearly warranted the jury in finding for plaintiff; that the question was fairly submitted to them; that the sheep being selected and separated, and plaintiff's mark put upon them, warranted them in finding the transaction was a valid one. Judgment affirmed. Rappledge v. Adee. Opinion by E. D. Smith, J. 2. Where a woman, during the life time of her husband, since deceased, promised to pay a debt of his, such promise not being in writing, nor in such form as to bind her separate estate: Held, that she was not liable. Bostwick v. Eldred. Opinion by E. D. Smith, J. 3. Nor is such promise good if made after his decease. It was a simple promise to pay the debt of another, and being without consideration was void by the statute of frauds. Ib. 3. Under the law as changed by Laws of 1853 (ch. 576, p. 1057), a husband may be made a co-defendant with his wife for debts of hers contracted before marriage; but the judgment shall bind the separate estate of the wife only, and execution shall issue only against said estate. Ib. TOWN BONDING. Void bond: cancellation: decision of United States supreme court, how far binding on State courts.-In the years 1852 and 1853 proceedings were had, and under the statute as it then existed the town of Venice was bonded in aid of a railroad company for $25,000. $2,000 worth of said bonds were sold by the commissioners of said town to one W. for cash, and $3,000 worth to one H. for cash, and the money paid directly to the railroad company, and the scrip of said company for stock was taken in return. The balance of said bonds, twenty in number, were transferred by said commissioners directly to the railroad company, and by said company sold to different parties. The statute under which these bonds were issued required as a condition, precedent to issuing said bonds, that the consent of two-thirds of all the tax payers of said town should be obtained. This action was brought to compel the surrender and cancellation of said bonds on the ground that the requiste number of consents were not obtained, and that defendant were not bona fide holders. All the persons holding said bonds are made parties defendants. The defendants put in answers, and all but W. and H. set up the statute of limitations. W. and H. set up counter-claims for money paid to said plaintiff. All the defendants claim that they are bona fide holders without notice. The requisite number of consents were not obtained before said bonds were issued. The case was referred and the referee dismissed plaintiff's complaint as to all the defendants. Held, (1) That the affidavit of the assessors that the requisite number of the tax payers had signed the consents was not conclusive and did not estop the town from insisting that the required number of consents had not been obtained; that under the cases not only the bonds transferred to the railroad company and sold to defendants, but also those sold by the commissioners to defendants W. and H. were void (17 N. Y. 492). (2) That the fact that the defendants are bona fide holders for value being alleged in the answer in response to the allegations in the complaint, and no proof having been given by plaintiff on the trial on the point, does not have the effect to make the allegations in the answer stand as proved; it was an affirmative defense and must be proved. (3) That defendants were properly joined in a single action. (4) That a court of equity has powers to decree the cancellation and surrender of the bonds held by defendants. (5) That plaintiffs were not obliged to return or offer to return to the railroad company the stock received for said bonds before this action could be maintained; the defendants have no interest in the stock or right to demand a return of it, nor to ask any relief founded on its non-return; the defendants are clothed with none of the rights of the railroad company. (6) That the action of the commissioners in issuing the stock before the requisite consents had been obtained was fraudulent; that the town was charged with knowledge of the acts of its officers and the legality of their proceedings, and that the statute of limitations began to run from the time the bonds were sold or transferred by the commissioners, and that all right of action as against those defendants setting up the statute was barred. H. and W. set up a counter-claim in their demurrer for money borrowed to and for the use of plaintiff. The allegation is not denied by plaintiff. The counter-claim was rejected by the referee, and defendants W. and H. have not appealed from his decision. Held, this was not a counter-claim in this action. It had no connection with the unauthorized issue of bonds, nor is it connected in any way with the subject of the action. This action is not on contract; the counter-claim is. W. and H. should have appealed from the judgment of the referee, rejecting the counter-claim. This court must follow the decisions of the court of appeals, where the decisions of the court of appeals and the supreme court of the United States are conflicting. Until the decision of the court of appeals is directly reversed by the United States supreme court, on a direct appeal from a judgment of the court of appeals, the judgments in favor of W. and H. reversed, and in favor of the other defendants affirmed. Town of Venice v. Breed et al. Opinion by Mullin, P. J. Talcott, J., concurs in the conclusion that the bonds are void, but is of the opinion that the present holders of the bonds are entitled to require that the stock received by the plaintiff must be returned to defendants, as a condition precedent of relief; that defendants are subrogated to all the rights of the railroad company, etc. Schemerhain v. Tallman, 14 N. Y. 93. TOWN BONDING. Withdrawal of consents.-A petition purporting to be signed by a majority of the tax payers representing a majority of the taxable property in the town of Belfast, in the county of Allegany, was presented to the county judge of said county. Said county judge caused to be published a notice that on a day named he would take proof of the facts set forth in said petition, etc. On the day stated in said notice, twenty-nine of the persons who had signed said petition appeared before said county judge, and requested that their names be taken off the said petition. The county judge refused to grant such request and accepted the petition. Had the twenty-nine names been struck off the said petition, there would not have remained the names of a majority in number and amount of the taxable inhabitants of said town upon it. Held, that the refusal of the county judge to strike off said names from said petition was erroneous. Cites The People ex rel. Irwin v. Sawyer, in the court of appeals. Determination of the county judge reversed. The People ex rel. Angel v. Hatch. Opinion by Mullin, P. J. NEW YORK COMMON PLEAS, 1873. AMENDMENTS. See Summons. APPEALS. 1. What papers can be used on appeal to general term. --- Upon the printed case furnished on this appeal, the judgment was reversed. This is a motion for a reargument upon the case, and upon books of account ouside of the case. It appears from a comparison of these books with the case, that certain extracts printed in the case are not correct. It was claimed that these books could be admitted under a stipulation before the referee. Held, that a re-argument should be ordered. McDonough v. McDonough. Opinions by Larremore, J., and Daly, C. J. 2. Dissenting opinion. The learned judge in dissent, says: "The general term is not the place to amend the case by proof aliunde. The stipulation in the case is not sufficient to bring the exhibits before the general term, having been given during the trial before the referee, and signed by him only, for the purposes of the argument before him. A transcript of the accounts being given in the case, although incorrectly, the books are not to be read on this argument, as in the case of voluminous exhibits and accounts too bulky to be printed and which are usually referred to by consent, as part of the case. Motion should be denied. Ib. Opinion by T. F. Daly, J., dissentient. Also, see Undertakings. ASSESSMENTS. See New York City. ASSIGNMENTS. See Trusts; Landlord and Tenant; Undertakings. BAR BY FORMER RECOVERY, See Master and Servant. CASES REVIEWED. See Master and Servant; Reference. CAUSES OF ACTION. See Master and Servant. CODE OF PROCEDURE. See Undertakings. CONDITIONAL SALES. 1. Mortgage and conditional sale distinguished. — In 1839, one Cooke conveyed to one Thompson, certain real property. This conveyance canceled Cooke's entire indebtedness to Thompson, and it was accompanied by a contemporaneous agreement between the parties, which provided that Cooke should have a right to re-purchase the property within a time named therein. Held, that the agreement to re-purchase did not change the deed into a mortgage, but made the transaction a conditional sale, and the finding of the referee to that effect is correct. No subsisting indebtedness is shown, nor any intention to create a security for any purpose, as was the essential point in Horn v. Keteltas, 46 N. Y. 605, and other cases cited. Cooke's right to re-purchase was optional and created no obligation on his part, and the condition of the agreement not having been performed, Thompson acquired an absolute estate in the premises conveyed. Morrison v. Brand. Opinion by Larremore, J. 2. Error in recording does not affect the character of the instrument. The mere fact that the instruments were recorded as a mortgage could not impress that character upon them. 6 Cow. 617, cited. The object of the recording act was to protect subsequent purchasers and incumbrances, and an erroneous recording of a conveyance would not impair any existing rights between the parties. Ib. 3. Assignments for the benefit of creditors. — An assignment for the payment of all creditors is not void by reason of a provision, that the surplus money be returned to the assignors. 7 Cow. 735, cited. Although authority given to assignees to sell upon a reasonable credit according to their discretion, is a sufficient ground to invalidate an assignment as against creditors who choose to assail it for that cause. In the case at bar, no creditor having sought to impeach the assignment, and thirty-three years having elapsed since its execution, the presumption of law is in favor of its acceptance by all the creditors, and the proper payments to them under the trust. Ib. CONTRACTS. See Tender; Master and Servant; Railroads; Re-insurance. CREDITORS' BILL. See Trusts. DEMURRER. See Trusts. DISMISSAL OF COMPLAINT. -- Party walls: where some injury is shown complaint will not be entirely dismissed. Appeal from judgment in favor of plaintiff. The judge below refused to grant a motion for the dismissal of the complaint. The motion was founded on the assumption that the partition wall, for the tearing down of which the action was brought, had not been shown to be on plaintiff's lot. Held, that as it was at least shown to have been a party wall, and the acts of the defendant in tearing it down had the effect to do some injury to plaintiff's building, although the extent of the damages was perhaps uncertain, the motion for an entire dismissal of the complaint was properly denied. The learned judge also reviews the evidence on the trial, and holds that defendant's assumption above stated was unwarranted, and plaintiff's right to enjoy this wall, as resting on her own land, was clearly established. Judgment affirmed. Kling v. Disch. Opinion by Robinson, J. EVIDENCE. Parol testimony: the rules governing its admission.Appeal from judgment in favor of plaintiff. The main question here is as to the exclusion below of parol evidence of the contents of a written agreement. Plaintiff admitted that she signed an agreement. Defendant testified that he delivered a copy of the agreement to plaintiff; also that he had searched for the agreement and could not find it; also that when his store was cleared up they threw the old papers into the waste basket. Another witness testified, that when defendant's firm was dissolved he saw twenty or thirty agreements, and that they were destroyed. Held, that the evidence was erroneously excluded. There was sufficient to warrant the presumption that the agreement was lost or destroyed, and defendants were entitled to prove its contents, which they did by testimony that the instrument annexed to the answer was a copy of the agreement. The object of the proof of loss is merely to establish a reasonable presumption of the loss of the instrument, and slight evidence is sufficient of the existence of it, with evidence that a bona fide and diligent search was made for it. Judgment reversed. Fenton v. Blake. Opinion by Daly, C. J. Also, see Landlord and Tenant; Pilot. -- Liability of the assignee in possession for rent: assignments of leases. A claim for rent was made against defendant in a former action, in which the judgment decided that defendant had gone into possession as assignee of the lease under which the claim was made. This was the basis for the recovery of the monthly rent due for December, 1871, and this action is for the rent for the succeeding month. Held, that the possession during December being res adjudicata, the law presumed its continuance until the contrary was shown. The defendant's statement, that he never occupied the premises, may have been literally true, but possession and not occupation was the material consideration, and occupation by his sub-tenant was his possession. The defendant could not, by signing and acknowledging a formal assignment to a third party, without affirmative proof of his having divested himself of his interest as assignee in possession, either by a delivery of the assignment, or of an acceptance of the assignment, and possession under it by the assignee, release himself from his responsibility to his landlord. Judgment in favor of plaintiff affirmed. Wilson v. Hoffman. Opinion by Robinson, J. 2. Evidence of assignments: delivery: possession. — The production of the alleged assignment did not afford even presumptive proof of its ever having been delivered to or accepted by the assignee. 1 Denio, 323, and other cases cited. The justice was warranted to pass upon the actuality of the transaction (38 N. Y. 346), and as to whether it had ever taken effect as well by delivery as by acceptance of the assignment (41 N. Y. 416), or whether in the absence of proof of change of possession it was merely "per fraudem" (1 B. & P. 23), or ever was intended to or did operate as a relinquishment to the nominal assignee of the possession of the premises as well as of defendant's interest therein (3 Barb. Ch. 60), or that any one ever succeeded to defendant's possession or interest. 1 Hilt. 447; 31 How. 383. There is no hardship in concluding the defendant by his possession until he discloses the true state of the title. 30 N. Y. 459. Ib. MANUFACTURING CORPORATIONS. See Summons. MASTER AND SERVANT. 1. Bar by former recovery: action by servant on breach of contract by master. - Appeal from judgment in favor of plaintiff on contract of service with defendant. The plaintiff in a former action, on this contract, alleged that from the 23d of March to the 1st of August, 1870, he continued to render his services and devote his time and skill as he had agreed to do, at the monthly salary of $250, and that after the 1st of August, the defendants, without cause or provocation, hindered and prevented him from rendering further service. Upon these allegations he claimed to recover $250 as due by the terms of the contract for services rendered from June 23d to July 23d and the same sum for the ensuing month ending on August 23d. Plaintiff recovered in that action $473.02. Held, that as plaintiff had rendered no service after August 1st, $223.02 of the amount recovered in the former action must have been recovered as damages to compensate him for the eight days' service from July 23d to August 1st, and for the breach of contract thereafter in wrongfully dismissing him. A judgment for that amount could, by law, have been given upon no other ground. It was a recovery of damages for the breach of contract, and was a bar to any further action upon the contract. Judgment herein below reversed. Moody v. Leverich. Opinion by Daly, C. J. 2. Constructive service: cases reviewed. The learned chief judge makes an exhaustive and interesting review of the cases on the idea of constructive service, which is founded upon the decision of Lord Ellenborough in Gandell v. Pontinguy, 4 Camp. 375. He dissents from the reasoning and the authority of that case. He says the case of Archard v. Horner, 3 Cav. & Pay. 349, and the cases following it which hold the doctrine, that if a servant sues upon the contract for the wages contracted for, performance is essential to a recovery, are rather to be approved. The cases of Aspen v. Austin, 5 Ad. & El. N. S. 691; Thompson v. Wood, 1 Hilt. 96, and Van Alstyne v. The President, etc. of the Indiana etc., R. R. Co., 34 Barb. 28 cited in favor of the idea of constructive service, are particularly examined. Ib. 3. Remedies of servant for breach of contract of service: measure of damages. — Regarding it as settled by the cases cited (supra), that there can be no recovery of the wages stipulated for by the contract except where the services have been rendered, it follows that the remedy, which the servant has for any loss or injury he may sustain by his wrongful dismissal, before the expiration of the period for which he was engaged, is a general action for damages. If any amount is due upon the contract at the time of his discharge, he may sue upon the contract and recover such amount. If by the contract wages are payable by the month, or the quarter, and by being dismissed before the period arrives, he is unable to render the service which by the terms of the contract, entitle him to the monthly or quarterly stipend, he may, if he thinks proper, treat the contract as rescinded and sue to recover for the value of the services actually rendered, or he may bring an action to recover damages for the breach of the contract, and in that action any installment, that may have become due to him by the terms of the contract or the value of the services rendered up to the time of his discharge, will be taken into account and allowed him in adjusting the measure of his damages; if he was fully paid up to the time of his discharge, then the sole measure of his damages will be the loss or injury occasioned by the breach of the contract. Ib. 4. When servant can bring but one action. The servant cannot sue upon a quantum meruit for the services actually rendered and also have an action for damages, because by bringing the first action he treats the contract as rescinded, and because he cannot have but one action, where the claims have all accrued and all grow out of the same contract. The latter rule, that in such a case there should be but one action, though sustained by numerous authorities, is somewhat unsettled in New York by expressions in Secor v. Sturgis, 16 N. Y. 548, and McIntosh v. Lown, 49 Barb. 550. Ib. 5. The former recovery is a bar to the present action, for the reasons assigned in Moody v. Leverich, supra; Ward v. Baxter. Opinion by Daly, C. J. Also, see Tender. Ordinance to open and extend streets: sale: assessment: advertisement: statutes, construction of. - An ordinance was adopted by the common council of the city of New York, under the act of April 9, 1813, and the subsequent acts, relating to opening and extending streets, for the purpose of opening and extending Church street, from Fulton to Morris streets. This ordinance was not advertised previously, according to the charter of 1857. Proceedings were taken under the ordinance to open and extend said street, and assessments were made therefor, and duly confirmed December 30, 1867. Plaintiff's property was sold for non-payment of said assessment, pursuant to act of April 8, 1871. Plaintiff sought an injunction restraining the corporation from further collecting such assessment, and that the assessment be declared null and void and canceled. The court, at special term, adjudged the sale to be invalid. The other relief as to vacating the assessment and declaring it void, was denied. From this judgment both parties appealed. Held, that the ordinance and the assessment under it were invalid for want of proper advertisement, and the sale thereunder was void. The act of 1872, (chap. 580, section 7), made the assessment a valid one, and a lien upon the property after the passage of said act, but could not make valid the sale which took place when no valid assessment existed. That act was within the powers of the legislature, and the assessment depends for its present validity wholly upon this confirmatory act, but the act does not reach the previous sale. Judgment affirmed. Lennon et al. v. The Mayor, etc., of New York City. Opinion by J. F. Daly, J. PARTY WALLS. See Dismissal of Complaint. COURT HUMOR. - Recorder Hackett was holding general sessions in the city of New York, and noticed on the day calendar "The People, etc., v. Minnie Davis Arson." He recollected it as a very interesting case, which, at a previous term, had failed because of a misnomer, but was to be tried on a new indictment. Algernon S. Sullivan was assistant district attorney, and, in an interval of business, the recorder said to him: "How about the case of Miss Minnie Davis will you have trouble about the facts now?" "No," said Mr. Sullivan, "but the law may trouble your Honor, how will you get over the maxim, de Minnie Miss lex curat non?" A grim smile spread over the face of the recorder, which reminded one of his father in Falstaff. LEX. CORRECTIONS.-The reference to Mr. Humphrey's "Observations on the Actual State of the English Laws of Real Property" in the able article by Judge Joachimsen, published last week, should have been to the edition of 1827 instead of "1872" as printed. In noticing, recently, the fact that Professor Washburn is engaged upon a new edition of his treatise on "Easements and Servitudes," the types made us speak of it as an "amiable" treatise-a rather mild expression when applied to so sterling and valuable a work. LEGAL NEWS. The Philadelphia Age commenting upon a recent "public whipping" in Pennsylvania, says: The law permitting this barbarism has been expunged from our statutes, but the repeal does not go into effect for some months yet. It strikes us that judges and juries should consider the repeal already binding, and not degrade themselves and disgrace the State by executing what the law for the time permits, but what the law has pronounced against. The dignity of the State is impaired with each repetition of these brutal exhibitions. Certain representations have been made concerning the personal estate of the late Chief Justice Chase in connection with the failure of Jay Cooke & Co., it has been ascertained that the heirs and legatees of the chief justice lose nothing by the suspension of the above-named firm. The securities and other personal property of the Chase estate were not touched by Henry D. Cooke, Judge Chase's sole executor, even for the purpose of re-imbursing the advances which he has made in administering the estate, and upon Mr. Chase's farm, near Washington, the whole estate is safe and intact. |