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technically erroneous, is no ground! In Dec., 1877, an execution was for a new trial. Code of Crim. placed in Dodge's hands as deputy Pro., 88 542, 186.
sheriff for collection. He made a Judgment of General Term, af- levy thereunder on property supfirming judgment of conviction, posed to belong to the judgment affirmed.
debtor and sold the same on the Opinion by Danforth, J. All 7th of Jan., 1878. The sheriff was concur.
afterward sued for this levy and
sale by a third party who claimed SURETIES. SHERIFFS.
to be the owner of the property
and a recovery was had in the suit N. Y. SUPREME COURT. GENERAL
against the sheriff, who, having TERM. FIRST DEPT.
paid the same, brought this suit on Bernard Reilly, respt., v. Rufus the bond against Dodge and his Dodge et al., applts.
sureties, S. and D. From the judg
ment in favor of the sheriff defendDecided Dec. 31, 1886.
ant took this appeal. A bond given by a deputy sheriff to the sheriff conditioned for the faithful per
Louis M. Doscher, for applts. formance of his duty by the former and P. Mitchell, for respt. for the indemnity of the sheriff against
Held, That the well established the consequences of any improper act of
rule is that such a bond speaks the deputy speaks only from the time of its delivery, and the sureties thereon are only from its delivery. That the denot liable for the consequences of any livery is presumptively at its thing done by the deputy before that date, but the time of the actual time. The delivery of such a bond is presumptively at its date, but the time delivery may be shown, and, when of actual delivery may be shown, and,
it is shown, the date of the bond when it is so shown, the date of the bond becomes unimportant. becomes unimportant.
That the liability for the acts of Plaintiff, who was the sheriff of Dodge under the levy accrued the city and county of N. Y., ap- | by the sale several weeks before pointed defendant Dodge one of the delivery of this bond in suit. his deputies on Jan. 1, 1877. He
He That it was not the intention of gave a bond for the faithful dis- the sureties to become liable for charge of his duties, but toward past transactions and the language the end of that year one of the of the bond does not subject them sureties on that bond refused to be to any such liability. 20 N. Y., longer liable upon it and a new 336 ; 10 Hun, 431 ; 66 N. Y., 434; bond was required by the sheriff. 81 id., 593. On Jan. 30, 1878, a new bond was That the case is not to be conexecuted by defendant Dodge and founded with those in which a S. as surety, and Feb. 5, 1878, the bond or undertaking has been bond was executed by D., the given to indemnify the sheriff for other surety, and delivered to the proceeding with a levy previously sheriff. The bond was dated Dec. made, in which case the surround1, 1877.
ing circumstances show the inten
tion to indemnify against a liabil- guaranteeing to plaintiffs the right ity previously incurred. 43 N. Y., to purchase, sale and deal in their 464.
harrow, and to indemnify and deJudgment reversed and new fend them from all prosecutions trial ordered.
for so doing by any person claimOpinion by Davis, P.J.; Brady, ing it to be an infringement upon J., concurs.
any patent, provided notice be
given of such proceeding and they INDEMNITY. CORPORA
be allowed to take charge of the TIONS.
An action was commenced
for this alleged cause against plainN. Y. COURT OF APPEALS.
tiffs, and they at once notified deChilds et al., respts., v. The Har
fendants and required them to ris Mfg. Co., applt.
take charge of its defense. They Decided March 1, 1887.
failed to do so and judgment went Defendant, a Wisconsin corporation, upon against these plaintiffs for $3, 154.
a sale of goods to plaintiffs, executed and delivered an agreement to indemnify | 45, payment of which was enforced and defend them from all prosecutions by execution. They thereupon for dealing in the goods by any person
issued a summons as in the Suclaiming an infringement on any patent. preme Court of this State, and Suit was brought in this state against served it upon one C. in the city plaintiffs and notice given to defendant,
of New York, upon the assumpbut the latter failed to defend and judgment was entered against plaintiffs.
tion that he was a director of the Held, That the cause of action on the corporation. The evidence tended agreement arose in this State, although to show that C. was a director of the agreement was made in Wisconsin, and that service in this State on a person
defendant by election. who had been elected a director of de
ant's records so declare. Defendfendant and appeared by defendant's ant moved to set it aside upon the records to be such was sufficient.
grounds, (1) That defendant is a This action was brought upon a foreign corporation, and the serbond of indemnity given by de- vice was not upon its president, fendant to plaintiffs. Defendant treasurer or secretary, or otheris a corporation created under the wise its representative for that laws of Wisconsin, has its office in purpose.
(2) That the corporathat State, where it is engaged in tion has no property within this the manufacture and sale of har- State. (3) That plaintiff's cause rows, some of which were bought of action did not arise within it. by plaintiffs, who are dealers in The motion was denied at Special agricultural implements. Some and General Terms, and this apquestion arose as to whether the peal was taken. machine was an infringement up- Louis Marshall, for applt. on letters patent issued to other H. J. Cookingham, for respts. parties, and upon a consideration Held, No error. It is enough if deemed sufficient, defendant exe- the cause of action arose in this cuted a writing in Wisconsin State and C. was in fact one of
defendant's directors. Code, S 432, COMPOSITION DEED.
N. Y. SUPREME COURT. GENERAL crued when defendant failed to
TERM. FIRST DEPT. perform its contract, and by reason of its failure plaintiff sustained
The Continental National Bank, a loss. These events occurred in respt., v. Herrmann
Herrmann Koehler, this State, plaintiffs were sued here, applt. and here if anywhere defendants Decided Dec. 31, 1886. were required to defend. It is immaterial that the contract to in
The firm of K. & K. being in failing cir
cumstances procured the signature of demnify was made in Wisconsin: their creditors to a composition agreeits obligation was to be discharged ment in the following form : "We who
have hereunto subscribed our names and wherever plaintiffs were vexed by
affixed our seals, creditors of the firm of litigation. Plaintiffs were bound
K. & K.,
agree to receive fifty to give notice wherever they could cents on a dollar in full discharge of the find defendant, and when they several debts owing by K. & K. to us." performed this condition it became
Held, That it was not necessary that all a fact in the case, but itself gave
the creditors of K. & K. should sign said
agreement in order to render it binding no cause of action, nor did one
upon those who had executed it, and then exist. Its object was to set that the fact that certain of the creditors defendant in motion, and except
of K. & K. who had signed said agreefor it there could have been no de
ment had received a greater amount of
tbeir claims than the fifty per cent. fault. The notice called for per
agreed upon would not entitle another formance that was regulated by creditor who had also signed said agreethe proceedings in this State where ment to maintain an action to collect plaintiffs were sued. Defendant's
more than fifty per cent. of his claim. undertaking was to defend them Action against defendant as inin that suit, and the cause of ac- dorser of two promissory notes tion arose when for want of a de made by the firm of K. & K. It fense judgment went against them, appeared that the firm of K. & K. and it arose at the place where when in failing circumstances had that judgment was recovered. procured the signature of their Also held, That it may reason
creditors to a composition agreeably be held that C. was a director ment in the following form : “We in fact of defendant. The declara- who have hereunto subscribed our tion of the records of defendant names and affixed our seals, credthat C. was a director is sufficient itors of the firm of K. & K., for the purposes of the motion agree to receive fifty cents on a now made by it.
dollar as full discharge of the sevOrder of General Term, affirm- eral debts owing by K. & K. to ing order denying motion to set us.” By this agreement the fifty aside service of summons, affirmed. per cent. of their claims to be re
Opinion by Danforth, J. All ceived by the creditors signing it concur, except Ruger, Ch. J., not was to be paid in notes of K. & K. voting.
maturing at different intervals. Plaintiff was a creditor of K. & K. to plaintiff from the payment of and its president had signed this certain of the other creditors in agreement in its name. The cash, for if such creditors had endefense relied upon was that plain- deavored to take advantage of the tiff, in fraud of the other creditors situation of the firm and thereby and as a condition of signing said secure more favorable terms than agreement, had compelled K. & K. the agreement provided for, it to execute to it notes for the full would not invalidate the agreeamount of its claim instead of for ment itself and release plaintiff fifty per cent. only.
from the obligation to perform it, It was claimed by plaintiff that but would be a fraud upon the the composition agreement was
other creditors which the law not binding upon it because there would not sanction or maintain. were some few creditors of K. & That the objection to the auK. in small amounts who had not thority of the president of the bank signed it, and because it appeared to subscribe the composition was that K. &. K. had paid certain of not tenable. That the business was their creditors who had signed said done at its banking office, and agreement the fifty per cent. agreed through the agreement then made upon in cash and not by giving expressed in part by the compositheir notes, and because plaintiff tion the bank received these notes, president was not authorized to and by endeavoring to collect them bind the bank by signing said it had sanctioned the act of its agreement.
officers in obtaining them; and Frederick Smith and Benno that the law would not permit it Loewy, for applt.
to do that and at the same time John L. Cadwallader, for respt. repudiate the obligation through Held, That the composition which this end was secured. agreement was not drawn in such Judgment reversed and new a manner as to require all the trial ordered. creditors of the firm to execute or Opinion by Daniels, J.; Davis, become parties to it. That its ef
That its ef-P.J., and Brady, J., concur. fect was limited to those persons who should become parties to it, and that no portion of the instru
REPLEVIN. BAR. ment either by express words or N. Y. COURT OF APPEALS. fair implication made it indispensable to its validity that all the
Hayes, respt., v. Midas et al., small creditors should become par
applts. ties to it, and in the form in which
Decided March 1, 1887. it was made it would not be in- In the absence of proof that it was brought valid simply because some small with knowledge of defendant's fraud in amounts had not become bound in
procuring the goods, the commencement
of an action on contract and the procurthe composition. 62 N. Y., 105.
ing an attaohment in such action is not That no harm or prejudice came such an election of remedies as will bar
an action in replevin for goods obtained charge was founded. The suit by fraud where the action on contract was commenced and the attachwas regularly discontinued before the
ment levied upon real and personal bringing of the action in replevin and no property or benefit was secured property of defendant M. on Dec. thereby.
16, 1884. It was proved that the It is not to be inferred, as matter of law, attachment suit was discontinued
that one who is guilty of fraudulently by an order of the court made Dec. disposing of property was also guilty of fraud in its acquisition, and knowledge 27, on notice to defendant, and the of the fact cannot be imputed to one who present action commenced on Dec. has no other means of information.
29, 1884. It was conceded that Affirming S. C., 23 W. Dig., 326.
nothing was obtained by plaintiff This action was brought for the under the attachment. Defend. recovery of personal property. The ants then moved for a dismissal of complaint contained the usual alle- the complaint on the ground that gations required in such actions. the proof showed that on Dec. 16, The answer of defendant S. ad- 1884, plaintiff, with full knowledge mitted the value of the goods to be of the fraud which had been peras stated, denied all the averments petrated upon him by M., and the of the complaint, and set up that as right to rescind said sale and resheriff of Kings County he took claim said goods, or affirm the the property by virtue of sundry sale and recover the value there. attachments duly issued to him for, had elected to affirm the sale against the property of defendant of the goods obtained by M. and M. in favor of plaintiff. M.'s an- sue upon the contract for the value swer alleged that the property was thereof, and having so elected and purchased by him from plaintiff, obtained the benefit of a personal and that before commencement of remedy such election was final and this action plaintiff sued for the conclusive, and vested M. with the price and obtained a warrant of title of said property. By consent attachment, thereby affirming the of the parties the court reserved contract of sale. Upon the trial its decision on the question of law plaintiff offered testimony tending thus raised, and submitted the case to show that M. procured the goods to the jury to find on the question fraudulently, and produced and of fact as to whether M. had offered to return the notes given obtained possession of the goods therefor. They were refused. De- fraudulently and with the prefendant S. then put in evidence conceived intent not to pay therethe attachment issued to him in for. The jury found for plaintiff. favor of plaintiff, which recited a The court subsequently decided cause of action on contract and
the point reserved in favor of destated as ground for the attachment fendant, set aside the verdict, disthat "defendant has removed and missed the complaint, and awarded disposed of his property with in- judgment in favor of defendant S. tent to defraud his creditors," and for a return of the property. Upon also the affidavits upon which the appeal by plaintiff the General