An action against the trustees of a manufactur Judgment of General Term, affirm ing corporation to recover a debt against it, ing judgment for plaintiff, affirmed. on the ground of a failure to file a report, may be commenced at any time within three years after such failure without regard to the time when the debt arose, provided such debt existed and could be made the subject of an action at the time of such failure; the action need not be commenced within three years after the debt arose. This action was brought against defendants, as trustees of the Etna. Iron Works, a corporation organized under the general manufacturing act of 1848, chap. 40, to render them liable for a debt contracted while they were in office, on the ground that they had failed to file a report, as required by said act. § 12. The debt in question was contracted in 1873 for money borrowed in April of that year, payable presently. On January 20, 1875, the company failed to file the report called for by said section. Geo. W. Van Sicklen, for applts. Held, That an action might be commenced against the trustees at any time within three years from January 20, 1875. 35 N. Y. 412; 62 id. 202. Opinion by Danforth, J. All concur, except Miller, J. absent. N. Y. COURT OF APPEALS. Grissler et al., applts. v. Powers, impl'd, respt. Decided, April 20, 1880. Defendant purchased a mortgage made by one B. relying upon B.'s sworn statement that it was given for a full consideration, and afterwards sold it for the full sum secured by it. In an action to establish a trust in favor of B.'s assignees for the difference between the face of the mortgage and the sum paid for it by defendant, Held, that no trust could be implied; that B.'s representation estopped him from denying its truth. This action was brought to have a trust established in favor of plaintiffs, who were assignees of one B. It appeared that defendant P. purchased a $2,000 mortgage, executed by B., for $16,600. P. took the mortgage upon the faith of B.'s sworn statement, made at the time that P. purchased, that it was given for a full consideration. P. afterwards sold the mortgage for the full sum secured by it. Plaintiffs seek to compel P. to account for the difference between the face of the mortgage and the sum he paid for it, viz.: $3,400. John J. Townsend, for applts. Thomas V. Cator, for respt. In an action against the trustees of a manufacturing corporation to recover a debt against it, on the ground of a failure to file a report as required by the statute, chap. 40, Laws of 1848, § 12, it is immaterial when the debt arose if it existed and could be made the subject of an action at the time default was made in complying with the provisions of the above section, and the action need not be commenced within three ped him from denying its truth and years after the debt arose. the effect of the estoppel is not Held, That this action could not be maintained; that there is no principle of equity which would authorize the implication of a trust in favor of plaintiffs under the circumstances. B.'s representation estop limited to the mere purpose of pro- York vacated, on the ground that tecting him to the extent of the the work for which it was laid was money advanced. a repavement, and that under the Payne v. Burnham, 69 N. Y. 69, Act of 1875, chap. 476, sec. 1, the distinguished. expense thereof should be paid by a general assessment upon all the taxable property in the city. It appeared that the assessment com As a general rule the estoppel created by a false representation acted upon, is commensurate with the thing represented and operates plained of was laid for paving the to put the party entitled to the roadway of One Hundredth street benefit of an estoppel in the same and did not include the sidewalks position as if the thing represented or gutters. These had already been was true, and when the representa- paved, but the roadway had not tion is made on the sale of a chattel been paved before. or security the remedy of the purchaser is not limited to a recovery simply of the money advanced, if the purchaser would receive a benefit beyond that if the fact had been as represented. Francis Lynde Stetson, for applt. Held, That this improvement was not a repavement. It cannot be pretended that the pavement of the carriageway of a street, where no Freeman v. Auld, 44 N. Y. 50, ex- pavement has ever been laid, is a plained and distinguished. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Andrews, J. concur, except Rapallo, J., voting. ASSESSMENT. repavement because the sidewalks have previously been paved. In re Garvey, 77 N. Y., 523, which arose under the Act of 1873, chap. All 757, § 22, holds, that by the original not pavement of the sidewalk, and as REPAVING. N. Y. COURT OF APPEALS. assessment. Decided June 1, 1880. In a proceeding to vacate an assessment on the ground that it was for a repavement, it appeared that it was laid for paving the roadway only, and that the sidewalks and gutters had been paved, but the roadway had never been paved. Held, That this improvement was not a repavement. sessment therefor, notwithstanding that the pavement did not cover the entire width of the sidewalk, the city had, under the terms of the Act of 1873, exhausted its power to pave the sidewalk at the expense of the property owners without the required petition. In re Phillips, 60 N. Y., 16; In re Burke, 62 id., 224; In re Burmeister, 75 N. Y., 174, explained. Order of General Term reversing order of Special Term denying motion to vacate assessment and granting motion, reversed, and that of Special Term affirmed. Opinion by Rapallo, J. The petitioner sought to have an assessment upon certain property belonging to her in the city of New cur, Miller, J., in result. All con EVIDENCE. N. Y. COURT OF APPEALS. rived title to the mortgage. This objection was sustained and an exception taken. The trial took place Whitehead, ex'r., respt., v. Smith March 9, 1878. et al., applts. Decided June 1, 1880. A. and wife joined in a bond and mortgage, on separate property of the wife, to one C. Subsequently the wife conveyed the property to her son J. C. died, and in an action to foreclose the mortgage, brought by his executor, Held, That A. was incompetent, under § 830 of the Code, which was in force at the time of the trial, to testify in behalf of J. as to a personal transaction between his wife or himself and C. Affirming S. C., 7 W. Dig., 133. I. T. Williams, for applts. Held, No error; that as at that time section 830 of the Code of 1877 was in force, it not having been repealed until April 22, 1878, and as that section provided, in substance, that the husband or wife of a party to an action, or of a person interested, who, under section 829, could not be examined concerning a transaction with a deceased person, could not be examined concerning the same transaction, or a like one, between the witness and the deceased person; and as the defendant C. S. would have been precluded, by section 829, from testifying in behalf of J., the successor to her title, as to a personal transaction between herself and the deceased, the witness W. R., her husband, was equally incompetent to testify in behalf of his wife's grantee to the same transaction, or to a like personal transaction, between himself and the deceased. This action was brought to foreclose a mortgage on certain real estate made by defendants C. S. and W. S. to one C., now deceased, to secure the payment of the joint bond of the mortgagors, who are husband and wife. The land covered by the the mortgage belonged to C. S., the wife, her husband never having had any interest therein. After the mortgage was made C. S. conveyed the mortgaged premises to her son J., who was made a defendant in the foreclosure suit. J. put in an answer, setting up the defence of Judgment of General Term, afusury. C. S. and W. S. joined in firming judgment for plaintiff, afthis answer, but did not appear firmed. upon the trial. J. alone appeared. His counsel called W. S. as a witness, solely on behalf of J., and asked him whether he negotiated the bond and mortgage with C., the mortgagee, and offered to prove by him the usury alleged in the answer. This evidence was objected to on the ground that it concerned a personal transaction between witness Opinion by Rapallo, J. All concur, Miller, J., in result. PARTNERSHIP. EVIDENCE. applt. Decided June 1, 1880. and C., through whom plaintiff de- An exception to the reception of testimony was excluded. which was immaterial and could not have property to his son at a sale made affected the result, may be disregarded, in fraud of plaintiff. This evidence although technically correct. Where one of two partners had sold the firm property to his son, at a sale made in fraud of the other, Held, That evidence tending to show the amount realized by the vendee from the property was inadmissible in an action for an accounting between the partners. Affirming S. C., 5 W. Dig., 176. This action was brought for a partnership accounting. The evidence showed a partnership, a dissolution by lapse of time, partnership assets in excess of partnership liabilities, and a conversion of the whole to defendant's use. The evidence justified the finding of the referee as to the amount due plaintiff. Defendant excepted to receiving in evidence the statement of a witness of some hard expressions of defendant concerning plaintiff's wife. The same thing had been given in evidence by another witness, without objection. It stood as part of a conversation, and, although immaterial in itself, was apparently introduced for the purpose of showing, in connection with other "hard language," the attitude the defendant assumed towards the plaintiff. James E. Dewey, for applt. S. C. Millard, for respt. Held, That even if defendant's exception to the receiving of this testimony was technically correct, it could not have affected the result, and the exception may be disregarded. 25 N. Y., 501-510; id., 244, 246. Defendant offered evidence to show the net proceeds of the property realized by his vendee. It appeared that defendant had sold the Held, No error; that the question before the referee was the actual value of the property at the time the defendant transferred it, and the result of the subsequent treatment of the property by the vendee could throw no light upon that subject. Judgment of General Term, affirming judgment in favor of plaintiff, affirmed. Opinion by Danforth, J. All con cur. IMPLIED CONTRACT. N. Y. COURT OF APPEALS. Van Santen, respt. v. The Standard Oil Co., applt. Decided June 1, 1880. Defendant, at the request of one E., loaded the vessel of one S. with petroleum, and represented to S. and E. that it put 110 barrels on board, which was untrue. S. thereupon gave a bill of lading for 110 barrels to E., who sold it to a foreign firm. On the unloading of the vessel S. was compelled to pay the consignees for the deficiency. Held, that he was entitled to recover back the sum so paid; the payment being a compulsory one, caused by the act of defendant, a promise on its part to repay the money will be implied. This action was brought by plaintiff, who was the assignee of one S., who was the master of a vessel. It appeared that the defendant, at the request of E., loaded S.'s.vessel with petroleum, and, after the vessel was loaded, represented to S. and E. that it put 110 barrels on board--more than it really had. S. was thereby induced to give a bill of lading for hat number of barrels to E., who sold the same to a firm in Antwerp. enough that the demand was legal, Upon the unloading of the vessel and one that could be enforced. 5 there the deficiency was discovered, Taunt., 615. The defendant was and S. was obliged to pay the consignees therefor. Plaintiff now seeks to recover from defendant the amount so paid. brought within the rule which requires one to make good any loss or damage which by his act or omission or legal default has been occasioned to another. Leake on Con,, 77; L. R., 7 Exch., 101. Judgment of General Term, affirming judgment overruling demurrer, Opinion by Danforth, J. All con MORTGAGE. TENDER. N. Y. COURT OF APPEALS. Tuthill, respt., v. Morris, applt. Decided June 1, 1880. To establish a tender which will discharge the lien of a mortgage, the proof must be very clear that it was fairly made, and deliberately and intentionally refused by the mortgagee or some one duly authorized by him, and that sufficient opportunity was afforded to ascertain the amount due. It must appear that a sum sufficient to cover the whole amount due was absolutely and unconditionally tendered. George A. Black, for applt. Alfred C. Chapin, for respt. Held, That he was entitled to do so that as between E. and defendant the erroneous payment and re-affirmed. ceipt of the money for the 110 barrels of oil created an obligation, cur. binding defendant for its repayment. This obligation attached the moment defendant received the money, although it was received in good faith, and with the belief that it was due, and E. paid it as in performance of a contract, for it was not intended as a gift, and there was no consideration for its payment. A like obligation existed on the part of E. to repay the sum overpaid by the Antwerp firm. The payment to the Antwerp firm by S. being a compulsory one, caused by the act of defendant, the law will imply a promise on its part to repay the money. The payment was compulsory, as for the failure of S. to deliver the 110 barrels to the Antwerp firm it had a remedy by action which it could enforce against S. or his ship, 69 N. Y., 373,1 Ld. Raym., 271, and as the Antwerp firm was a purchaser of the cargo for value, upon the faith of S.'s bill of lading, he could not in This action was brought to obtain defence show that he had not in fact an injunction to restrain further proreceived the full number of barrels ceedings in an action to foreclose specified in the bill of lading. 9 N. certain mortgages executed by plainY., 529, 531. It was not necessary tiff to defendant's assignor, and an that S. should withhold payment adjudication that the mortgages until suit was brought; it was were extinguished by a tender. It Even if a tender has been made it must be kept good in order to entitle the mortgagor to the extinguishment of the mortgage. The fact that a security has become, or is invalid in law, and cannot be enforced even in equity, does not entitle a party to come into a court of equity and have it decreed to be surrendered or extinguished, without paying the amount equitably owing thereon. |