« ForrigeFortsett »
judgment under an agreement by the parties to that effect.-Berdell v. Park
hurst, 310. 5. Where a city seeks to recover the
amount of a judgment obtained against it for negligence upon the ground that defendant was primarily responsible, such judgment is not conclusive upon defendant unless it appears by the judgment roll or by evidence aliunde that it was determined in the former action that the fault was defendant's. In such a case that issue remains open.-The City
of Cohoes v. Morrison, 353. 6. The period of twenty years limited by
the Code of Procedure for the commencement of an action upon a judgment of the Marine Court of the City of N. Y., rendered while said court was not a court of record, has not been reduced to six years by subd. 7 of $ 382, Code Civ. Pro.
-Camp v. Hallanan, 555. See CORPORATIONS, 4; EXECUTION, 4, 6;
PARTNERSHIP, 2; PLEADING, 14.
JURORS. 1. A person is not disqualified as a juror in
a criminal case because he entertains an opinion in regard to it, provided he can swear that he believes the opinion will not influence his verdict and that he can render an impartial verdict according to the evidence, and the court is satisfied of the truth of such statements.-The People
v. Buddensieck, 125. 2. An allowance of a challenge for cause to
a competent juror is not ground for reversal where it appears that the party challenging did not use his peremptory challenges.-Malloy v. The Town of Pel
ham, 277. 3. Where, upon challenge for cause, enough
is disclosed upon the examination of the juror to satisfy the judge that he cannot impartially try the case, it is not error to set him aside.-Id.
See HiGHWAYS, 1.
JUSTICE OF THE PEACE.
1. The complaint in Justice's Court alleged
a wrongful injury to plaintiff's horse and demanded $ 19 damages. The answer set up a counterclaim of injury to defendant's horse and demanded $60 damages. Held, That defendant, on appeal, was not entitled to a new trial.-Hinkley v. The T. & A. Horse RR. Co , 280.
JUDICIAL SALES. 1. The title of a purchaser upon a judicial
sale is not affected by defects in the proceedings which rendered the judgment irregular and in consequence of which it might have been set aside.-Smith v.
Joyce, 106. 2. Ordinarily when the question of ade
quacy of price is a disputed one of fact a judicial sale will not be set aside on the ground of mere inadequacy of the sum produced on the sale. – Prior v. Prior et
al., 207. 3. When purchasers at a judicial sale have
sold to bona fide purchasers any portion of the premises such persons have a right to be heard on a motion to set aside the
sale.-Id. 4. A motion to set aside a judicial sale is
addressed to the discretion of the court, and the General Term will not review the exercise of such discretion.-Id.
stitutional. --In re application of Elliott,
341. 3. A justice of the peace whose term would
have expired Dec. 31, 1886, resigned, and the vacancy was filled by appointment in Feb. 1896. Held, That there was no vacancy to be filled at the election in April
following.-Id. See APPEAL, 5; CONSTITUTIONAL LAW, 2;
Costs, 6 ; PLEADING, 15.
LANDLORD AND TENANT.
JURISDICTION. 1. The recorder of the City of Elmira has
LARCENY 1. Since the obtaining of goods by means of 2. The description of the subject of larceny
exclusive jurisdiction to try a charge of
Miller v. Cooper, 148.
CRIMINAL LAW, 11; DIVORCE, 5; EXECU-
false pretenses is merely one of the acts
as “money of a kind and description to the grand jury unknown,” with an allegation that a more particular description cannot be given, is sufficient.—The People
V Dimick, 236. 3. To constitute the crime of larceny by
obtaining money by false representations, the act by which it is consummated must be illegal, whatever may have been the intent or purpose of defendant in doing such act, and defendant has the right
that the jury be so advised.-Id. 4. Belief of a defendant that he had a right
to do an act charged as constituting the crime of larceny by obtaining money by false and fraudulent representations is not inconsistent with the intent to defraud, and in case of such intent, without any right to do the act, his belief would not protect him against a charge of the
crime.-Id. 5. Where the acts constituting or requisite
to the offense of larceny by obtaining money by false and fraudulent representations are made in one county, and the money is paid by the means of such representations in another county, although the obtaining of the money is the consummation of the offense, the courts of either county have jurisdiction over the crime --Id.
1. The mortgagee of the improvements on
leased Indian Reservation lands and of the leasehold thereof has the right of renewal of the lease under the act of Congress of Feb. 19, 1875. It not appearing that such renewal was not made, it is presumed, under the circumstances of the case, that it was made.-Sheehan v.
Mayer, 147. 2. Where the lessee of premises during the
term substitutes another in his place, and assents to the collection of the whole rent from such other person by the landlord, who accepts such person as tenant, it operates as a surrender in law, and a sub-tenant thereupon becomes the immediate tenant of the landlord and liable to
him alone.-Kedney v. Rohrbach, 153. 3. Lease of lands to plaintiffs, with “ the
right to take, bore and gather all oil or gases found therein for twelve years or as long as oil is found in paying quantities,” the lessor to have one-eighth of the oil produced. Lessees covenanted to “ mence operations and prosecute the same within two years, or thereafter to pay the lessor until work is commenced." Lease to be void unless lessees should within six months sink a well of 1200 feet. That if
the lessees should fail to perform their covenants the lease should be void. Within six months plaintiffs drilled 1,500 feet, finding large quantities of gas, but in the spring of 1882 ceased operations and removed engines, etc, having expended $3,000 and found some oil, but not in paying quantities. In Feb., 1884, the lessor leased the premises to defendant company for mining, etc., for oil and gas, who excluded plaintiffs therefrom. Held, That plaintiffs had not forfeited their rights under the lease by reason of their neglect to continue operations. Easton et al. v. The Alleghany Gas Co.,
179. 4. A lease was made to defendant and her
husband for life, with a reservation that the lessor might terminate after the husband's decease by paying to the wife " the sum of
dollars." Plaintiff acquired title under foreclosure of a mortgage given by the lessor, and brought ejectment against defendant, whose husband was deceased. Plaintiff offered to prove that the clause quoted was inserted by the draughtsman merely for the purpose of expressing a nominal consideration, etc. Held, That the condition or reservation being defective by reason of the omission to express the consideration, the whole was void for uncertainty.
- Vandervoort v. Dewey, 195. 5. A lease provided that it should be for
two, three or five years as the parties may elect. Prior to the commencement of the second year an allowance of $100 on the rent was endorsed on the lease, and thereafter other endorsements making a similar reduction for each year. The lessee settled at the reduced rent. In an action for the balance, $100 per year, Held, That the referee did not err in admitting the endorsements in evidence and giving effect to them.-Hart v. Haz
ard, 244. 6. Upon the question whether a lease made by one partner was ratified by the firm the circumstances were conflicting. Held, That they should have been submitted to the jury. That it was error for the trial justice to hold that defendants had sufficiently explained the circumstances.Cantwell v. Burke et al., 447.
7. It seems that where a firm is dealing in
country produce, including butter, it is within the scope of the partnership business to hire a butter and cheese factory.
-Id. 8. Where the owner agreed to put such a
factory in running order and failed to do so the measure of damages is the difference in value of the use of the premises as they were and as the owner had agreed to put them, -Id.
9. Where the tenant enters relying upon an
agreement of repairs to be made he cannot abandon the premises but is liable for
the rent.-Id. 10. By resolution of the electors of Graves
end in 1871, it was provided that the common lands should be let only at public auction on notice, and that no lot should be let at a time more than one year prior to the expiration of any existing lease thereof, nor more than ten years. By resolution in 1878 this was amended by adding that the land commissioners are authorized to renew any existing lease upon terms which they deem most advantageous to the town. Plaintiffs held leases which expired in 1882 and 1883. The commissioners renewed them in 1880 and 1879 respectively. Held, That the resolution of 1878 did not affect the provision of the resolution of 1871 as to the time when the power should be exercised, and that the renewals were invalid.- T'ilyou v. The Town of Graves
end et al., 486. See CONTRACT, 18; SURETYSHIP, 4; TRES
over the books was admissible.—The People v. Sherman et al., 73. 2. The publication of a libel is not an in
famous crime under the statutes of this
State.-The People v. Parr, 113. 3. In a prosecution for this offense where no
surname was used in the libel witnesses were allowed to testify that they had read the article and that they recognized its application to a particular person. Held, Error. The witnesses should only have been allowed to testify to facts, and from these it was for the jury to draw the inference that the person intended was the one whom the People charged to have been intended. - Id.
1. So long as a parol license to enter upon
land is executory it is revocable at pleasure as to acts thereafter to be done under it.-Ketcham et al. v. Newman et al.,
157. 2. The above doctrine applied to a license
to enter the lands of another for the purpose of shoring up a building thereon. -Id.
LEGACY. 1. The will of testator contained the pro
vision following: “I direct my executors to cause my seat in the New York Stock Exchange to be sold as soon after my decease as possible, and also to collect and receive the amount of insurance upon my life from the New York Stock Exchange, and out of the proceeds thereof and out of the proceeds of my estate to pay the sum of $20,000 to my beloved aunt, Miss Elizabeth Cottam." The so-called insurance was a gratuity, which on his death became payable to said aunt, who col. lected it. Held, That the executors were entitled to treat the legatee's receipt of the $10,000 from the Stock Exchange as a payment pro tanto on account of the $20,000 legacy, and that the legatee is entitled to legal interest upon the remaining $10,000 from one year after the death of the testator until her claim shall be fully discharged.-In re estate of Noyes,
232. See LIMITATION, 5, 6, 10.
1. When the provisions in an agreement
for the sale of property consisting of oil land, machinery, etc., indicate an intent to give the vendors a lien, to secure unpaid purchase money, upon the property sold and upon oil to be produced, but the agreement provides for no written evidence of such lien, Held, Equity regards the agreement as creating an equitable lien which will be enforced against the party promising to give the lien and those claiming under him who are not innocent purchasers.— Willets et
al. v. Reid et al., 100. See LIMITATION, 10.
LIFE INSURANCE. 1. Where a policy of life insurance con
tains a warranty by the insured of the truth of the answers in the application any substantial deviation from the truth in the answers is material to the risk and constitute a breach of the contract rendering the policy void. - Duight et al. v.
The Germania Life Ins. Co., 1. 2. In considering the language of an insur
LIBEL. 1. In a prosecution for publishing a libel it
ance contract the words of a promise are to be regarded as those of the promisor, while those of a representation on which the promise is founded are the words of the promisee, and are to be taken most strongly against him.-Id.
appeared that after the first edition the writer of the article and another visited the comptroller's office to see if the statement was true, and wrote a retraction for the second edition, which defendants refused to publish. Held, That testimony of a clerk in the comptroller's office that these persons came there and looked
thirty days should be given them after notice of default, and the provision at the end of the section that a notice in advance of the payment becoming due “shall have the same effect" as the notice given subsequent to the default does not mean to give thirty days additional time after the payment was due.-Phelan v. The Northwestern Mut. Life Ins. Co., 385.
3. Defendant issued a “non-forfeiture pol
icy" which provided that, after two premiums had been paid, a paid up policy could be taken out for a proportionate sum, subject only to the payment of interest on the outstanding notes. There was no other provision as to non-forfeit
Held, That defendant did not undertake to give a new policy free from all conditions, and had a right to insert in the new policy a provision for forfeiture for non-payment of interest on such notes.-The People v. The Knickerbocker
Life Ins. Co., 80. 4. Under Chap. 248, Laws of 1879, a wife
has, with the consent of her husband, absolute power to assign or surrender a policy on the life of the husband in her favor, whether there be children or not.
-Anderson Goldschmidt, 183. 5. The joining of the husband in such as
signment constitutes a consent thereto in
writing.–10. 6. One C. took out a policy on his life in
favor of his children, who were expressly declared to be the assured. Afterward č. assigned the policy to plaintiffs' testator as security for a loan, and the children assigned it to defendant. Held, That an assignment by the insured could not affect the rights of the assured.--Ferdon et
al. v. Canfield, 221. 7. Where the death was claimed to have
been caused by an accident, the declarations of deceased made at the time of the accident, and growing out of it, showing the nature, quality and character of the facts constituting the injury are admissible.—Ten Broeck v, The Travelers Ins. Co., 250.
11. The Universal Life Insurance Co. was
declared insolvent in 1878 in a suit brought against it in Virginia and its assets in that State were appropriated to the payment of its debts, including a dividend upon the policies of Virginia policyholders. Subsequently and in 1881
an action in this state, said company was declared insolvent and its assets placed in the hands of a receiver, and thereafter B., a Virginia policyholder, who had received a dividend upon his policy, in the Virginia proceedings, applied to the N. Y. receiver for an additional dividend thereon. Held, That B. was entitled to the same dividend on the balance of his claim against the company as was paid by the receiver upon all other policies upon which nothing had been paid, and that the payment of B.'s dividend could not be postponed until all other policyholders had received the same proportion of their claims as that received by B. upon his policy in the Virginia proceedings.- The People v. The Universal Life Ins. Co., 509.
See SURROGATES, 3.
8. Evidence tending to show that deceased
was in a fair physical and mental condition just before the accident is admissible to contradict testimony that he was suffering from aggravated physical infirmities which might have contributed
to cause the death.-Id. 9. By a beneficial certificate defendant, in
corporated under Chap. 175, Laws of 1883, agreed to pay plaintiff a equal to the amount received from a death assessment, but not to exceed $3,000.” No assessment was laid, but it was shown that if laid the assessment would have exceeded this sum. Held, That an action for the amount was proper and that it was not necessary first to bring an action to compel defendant to levy the assessment.- Freeman v. The
National Benefit Soc., 312. 10. The object of the statute (Chap. 321,
Laws 1877) was to give careless persons a notice of the time of payment either in advance for at least thirty days or that
1. Defendant subscribed for 600 shares of the
capital stock of a manufacturing corporation organized under the act of 1818, which, by the contract of subscription, were stated to be sold for the purpose of raising a present working capital and were to be paid for in installments, onethird part thereof as soon as the whole 6,000 shares should be subscribed for, and the remainder in such installments as the board of trustees might call for the same for the purposes of the business, the subscription not to be binding until the whole 6,000 shares had been subscribed. All the shares were subscribed for and defendant paid the first installment on May 15, 1873. This action was menced on Oct. 14, 1879, to collect the remainder of his subscription. Held, That the statute of limitations commenced to run on May 15, 1873, and not from the time of the call for the subsequent installments, and that the action was barred thereby; that evidence that the money called for in any of the calls made by the trustees was not required for the purposes of the business of the corporation until
injuries sustained by reason of a defect or obstruction in a street, brought more than a year after the accident occurred, is barred by the statute of limitations.
Dalrymple v. The City of Oswego, 332. 10. A. Q. died in 1866, leaving a will by
which a legacy given was made a lien on all his real and personal estate. His sons were made executors. They did not qualify, but took possession of the real estate and converted to their own use the personal ; this latter was sufficient to pay the debts and legacies. No administrator was ever appointed. Plaintiff, assignee of the legatee, began this action to enforce a lien for the legacy in 1883. Held, That it was not barred by the statute of limitations.- Quackenbush v. Quackenbush et
al., 414. 11. In 1818 while S. was in possession of
premises the same were sold by the sheriff on execution to H. The latter did not go into possession and S. continued to occupy by himself, his heirs or his grantees, until 1883. In an action by the devisee of H., Held, That the action was barred by the statute of limitations, and also by the fact that plaintiffs had not been seized or possessed of the premises within twenty years.-Hasbrouck v. Burhans, 474.
See EXECUTORS, 40 ; JUDGMENT, 6; PART
NERSHIP, 5, 6.
1. Mandamus lies to compel the trustees of
a religious society to receive their duly appointed minister and to open to him their meeting-house to conduct religious exercises therein in conformity to the faith, tenets and discipline of their society.—The People ex rel. Peck v. Collins et
al., 78. 2. By proceeding to a hearing on an appli
cation for a mandamus without traversing the statements in the affidavit the respondent admits the truth of such statements. — The People ex rel. Supts. of Poor
v. Suprs. of St. Lawrence Co., 176. 3. The discretion of the court to grant or
refuse a writ of mandamus is not absolute, and its exercise is subject to review.—The
People ex rel. Millard v. Chapin, 376. 4. The writ does not lie to compel an officer
exercising judicial functions, such as the comptroller, to reach any particular decision or set aside a decision already made.
-Id. 5. A writ should not be granted after the
time for commencing actions has expired, where the delay unexplained and unaccounted for.-Id.
such time as the call was made was immaterial and incompetent.-Williams
v. Meyer, 37. 2. When property is delivered to a person
for safe keeping the statute of limitations does not begin to run against an action to recover such property until a demand for its return has been made.-Price v.
Broun et al., 43. 3. One E. performed services as house
keeper for intestate from 1843 to his death in 1882. No express agreement as to time or measure of compensation was shown, but it appeared that in 1879 he made her a payment to apply on account, and subsequently gave her small sums occasionally. Held, That L. could not recover for services rendered more than six years prior to the payment in 1879; that an agreement that compensation should be postponed until the end of the employment could not be implied.-In re appli
cation of Gardner, 77. 4. The statute of limitations begins to run
against a trustee for a wrong committed by him ex maleficio or by implication from the time the wrong was committed.
-Lammer et al. Stoddard et al., 107. 5. The provisions of the statute of limita
tions apply to “actions” for obtaining payment of a legacy or a distributive share, and also to proceedings instituted in the Surrogate's Court by the legatee of a testator, or the next of kin of an intestate for a like purpose, or for compelling an executor or administrator to account.
- In re estate of Van Dyke, 177. 6. When, however, the bar of the statute of
limitations would not have been operative as to a proceeding to compel an accounting on Sept. 1, 1880, when & 1819, Code Civ. Pro., took effect, such section becomes operative as to such a proceeding, and makes the right to institute same to accrue when the executor's or administrator's accounts are judicially settled and not before. This section is a substitute for S 9, Title 5, Chap. 6, part 2,
R. S.-Id. 7. The claim in question was brought less
than six years after breach of contract by the officials in charge of the work, but more than six years after the passage of the act under which the contract was made. Held, That the claim was not barred.- McMaster y. The State, 181.
8. The statute prohibiting an action against
defendant until thirty days after presentation of the demand to the comptroller suspends the running of the statute of limitations during that time.-Brehm v.
The Mayor, etc., of N. Y., 279. 9. An action against the city of Oswego for