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ways is in

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Held, If the constitutional ques- Appeal from an order and judgtions raised ever had any force, they ment disallowing a certain claim have been put at rest by the de- against the estate of the defendants' cision in 18 N.Y., 38.

testator. The claim was referred, Upon settled principles of statu- pursuant to the statute. 3 R. S., 6th tory construction, the effect of the Banks Ed., p. 96, $ 47. The appeal repeal of the Act of 1870, which was taken on exceptions to two findamended the Act of 1867, was to ings of fact, and the referee's conrestore the latter statute in all re- clusion of law. spects as it stood before the amend. Among the findings of the referee atory act was passed.

there was one to the effect that the The grant to the trustees of the plaintiff paid a bill of Arnold, Conpowers of commissioners of high- stable & Co.'s, for articles pur

restrictive chased of that firm by the defendof the specific powers granted by ants' testator and his wife, for their SS 24 and 25 of the Act of 1867. own use. The later powers are an addition to Kelly & McRae, for applt. the former.

Wingate & Cullen, for respts. Order appealed from affirmed, Held, The referee erred in diswith costs and disbursements. allowing the sum paid by the plainOpinion by Gilbert, J.

tiff to Arnold, Constable & Co. for purchases which were made of the

latter by defendants' testator. As PRINCIPAL AND AGENT. the plaintiff did not authorize the CONVERSION.

testator to make such purchases on

his account, he could repudiate the N. Y. SUPREME Court. GENERAL transaction or ratify it. He ratified TERM. SECOND DEPT.

it, and as the testator of the deLawrence Odell, applt., v. A. Mc- fendants converted the goods to his Cue et al., respts.

own use, the plaintiff had the elec

tion to treat the transaction as a sale Decided May, 1880.

of the goods by himself to defend

ants’ testator. The goods were sold H., without any authority, purchased certain goods from A., C. & Co. for his own use, on

by Arnold, Constable & Co. to the the credit and account of O., who paid the plaintiff, and not to the said testabill therefor when rendered. Held, That 0. tor. When the plaintiff paid for the ratified the transaction, and H., having con goods, he paid his own debt. Unverted the goods to his own use, the transaction amounted to a sale of such goods by

der the circumstances, the law im0. to II., for when 0. paid A., C. & Co. for plies a promise by the defendants' the goods, he paid his own debt, and not testator to pay the value of the

goods to the plaintiff. Where an agent has honestly or dishonestly Judgement reversed, and new

appropriated the goods of his principal, trial ordered, with costs to abide without bis consent, the law implies a prom

the event. ise by the agent to pay his principal for the

Opinion by Gilbert, J.

that of H.

same.

PUBLIC USES. TELEGRAPH its poles for some distance along the COMPANIES.

plaintiff's railroad, whereupon these N. Y. SUPREME COURT. GENERAL proceedings were had.

Porter, Lowrey, Soren & Stone for TERM. SECOND DEPT.

applt. New York City & N. RR. Co., Charles N. Judson for respt. applt., v. The Central Union Tele

Held, The power granted to the graph Co., respt.

defendant is to enact and coustruct

from time to time fixtures for lipes Decided May, 1880.

of telegraph upon, over or under While the Legislature has the right to supplant any of the public roads, streets and one public use by another, still the delega. highways, and upon, through or over tion of such a power must be made in express terms or by necessary implication. Such a any other land. Laws of 1853, chap. right cannot be implied from a general 471, § 2. No doubt the Legislature power to appropriate or to use land general-may supplant one public use by ly.

another, but the delegation of such A railroad corporation had designated,

and made a map of its certain route and a power must be made in express lands taken by them. A telegraph corpora- terms, or by necessary implication. tion in placing their line attempted to set It cannot be implied from a general their poles for a distance along the line of the

power to appropriate or use land plaintiff's contemplated railroad. Held, That the defendants, under the power granted to generally. Statutes which delegate them Laws of 1853, chapter 471, $2, were

the power of eminent domain are not entitled to make such use of plaintiff's not to be extended by inference or road, and that an injunction should issue implication. 43 N. Y., 146; 53 N. restraining them therefrom.

Y., 574; 66 N. Y., 413; 68 N. Y., The phrase "public roads” does not embrace

167 ; In re N. Y. & Brighton Beach railroads outside of streets or highways.

RR. Co., 9 W. Dig., 387. Appeal from an order denying a The plaintiff has not been vested motion for the continuance of a pre- with the power to interfere with the liminary injunction. An order was use by the defendant of its roadgranted ex parte restraining the de- way. fendant from entering upon the The phrase "public roads” does lands of the plaintiff and from erect- not embrace railroads outside of ing telegraph lines thereon, and re- streets or highways. If the Legisquiring defendant to show cause lature had intended to authorize the why the injunction should not be use of railroads they would have continued. On a hearing the court said so in plain language, and would denied the motion, from which order have prescribed the mode of joint use this appeal is brought.

so as not to endanger the safety of It appears that the plaintiff is in- the operation of the railroads, as tending to build a railroad, and has they have been careful to do in designated and made a map of its analagous cases. Laws of 1850, ch. route, and the land it claims to have 140, $ 28, sub. 6. taken for railroad purposes. The An injunction is the proper remedefendant in extending its line set dy in a case of this kind.

Order appealed from reversed, hands of the assignee, which fund motion to continne injunction must was derived from sales of certain be granted, with $10 costs and dis- consignments of woolen goods made bursements.

by the New England Company to Opinion by Gilbert, J.

Thomas & Company. The plaintiffs and the Chambersburg Company

claim that the proceeds of the sale FACTORS. CONVERSION. of their consignments to Thomas &

Co. were used by the latter in makN. Y. SUPREME COURT. ENERAL ing advances upon the above-menTERM. SECOND DEPT. tioned consignments of the New

England Company; and that, thereThe Conversville Company et al., fore, the proceeds of such consignapplts., v. The Chambersburg Woolen ments in the hands of the assignee Co. et al., respts.

should be applied to the payment

of the claim of plaintiffs and his coDecided May, 1880.

claimants, and that they should be It is the duty of factors to remit the proceeds declared to hare an equitable lien of consignments to their principals. Such

upon

the same fund. The referee proceeds are clothed with a trust in favor of dismissed the complaint on grounds the said principals commensurate with this duty, and this trust accompanies all changes discussed in the opinion. which happen to said proceeds.

S. S. Harris, for applts. It is not absolutely necessary to the recovery Ely & Smith, for respts.

of certain moneys diverted from their proper Held. Thomas & Co. had the owner that said moneys should have an earmark. There are other ways by which the right to retain the fund in contro

versy, since it was the proceeds of moneys may be traced.

consignments to them by the New Appeal from a judgment entered England Company, and to apply the upon the report of referee dismiss- same to advances made bythem to the ing the complaint herein.

consignors. But such advances exThe Chambersburg Woolen Co. ceeded the amount of such proceeds. answered, joining in this action and If, therefore, said advances were claiming similar relief as that asked made out of the plaintiffs' money, for by the plaintiff ; others also an- the latter ought, in equity, as against swered but did not contest plaintiffs' the general creditors of T. & Co., to claim, as they had received all, or a have said funds applied to reimvery large proportion of the sum burse them for this sum misapprodue to them. The defendant, Hill, priated. Thomas & Co. were the as assignee of the New England factors of the plaintiff, and it was Company, alone contested the rights their duty to remit the proceeds of of the plaintiffs and the Chambers- goods sold on plaintiffs' account, burg Woolen Co. to the relief asked instead of using them to make adfor in this action.

vances to others. Such proceeds This action is brought to establish were clothed with a trust in plaina lien upon certain funds in the tiffs' favor, which accompanied all

changes which happened to the fund. from his contract on the ground of mistake, 3 M. & S., 562; 69 N. Y., 133; Story

the proof of the mistake should be clear and

positive. If the proof of mistake is not of Eq. Jurisp., $ 1255. The referee was

such a character, a motion for a nonsuit canin error. It is immaterial to inquire

not be properly denied. whether plaintiff had a legal remedy. The General Term may reverse a judgment Courts of equity have always exer

upon the facts, without reference to any excised jurisdiction in cases for the

ceptions. enforcement of trusts, &c., and of Appeal from a judgment entered equitable liens. But T. & Co. and on the report of a referee. About the New England Co. being insol- January 1, 1872, these parties, who vent, the attempt to enforce the are brothers, settled with each other liability of either of them to plain- and a note was given by plaintiff to tiff would be useless.

defendant for amount found due, Although such moneys claimed $702.97. A statement that such sethad no earmark, that was not neces- tlement had been made and note sary. There are other ways by which given was written in defendant's acmoney may be traced. 52 N. Y., 1. count book, and signed by both the An examination of the testimony parties. That settlement included has convinced me that a large por- accounts as far back as 1864. The tion of this sum, advanced to the N. interest, and perhaps some prinE. Company, in suit, was made up cipal, was paid upon the note of of money referred to as belonging to $702.97, until January 1, 1874, when plaintiffs. To the extent that the a new settlement was had and a proceeds of defendant's goods were new note for $639.45 was given by so used by T. & Co., the former are plaintiff to defendant and the old entitled to enforce the lien of the note destroyed. On such new note latter upon the goods of the New various sums were paid by plaintiff England Company. Such lien has until 1878. During this year plainattached also to the fund in contro- tiff, for the first time, claimed he versy.

had transferred to defendant, in Judgment reversed, order of re- 1866, three promissory notes of $200 ference vacated and a new trial each, which defendant had failed to granted, with costs to abide the credit him with, and which had not event.

been allowed to plaintiff on the setOpinion by Gilbert, J.

tlements of 1872 and 1874. This suit was brought to correct the ac

counts. MISTAKE. PRACTICE.

Upon the trial, before the referee, N. Y. SUPREME COURT. GENERAL

the parties are in direct conflict TERM. THIRD DEPT.

with each other, the evidence of Franklin Hill, respt., v. Henry C. defendant, however, being much Hill, applt.

more satisfactory, since he seems to

have had a somewhat more accurate Decided April 8, 1880.

memory of the transactions than To entitle a party to recover or to be relieved | plaintiff.

Defendant appeals from the judg

RESIDENCE. ment entered against him on the re

N. Y. SUPREME COURT. GENERAL port of the referee. James Averill, for applt.

TERM. FIRST DEPT. S. A. Kellogg, for respt.

S. B. Smith, applt., v. E. B. Dorsey, Held, That to entitle a party to

respt. recover or to be relieved from his contract on the ground of mistake, Decided June 11, 1880. the proof of the mistake should be where an unmarried man has lived in one clear and positive. It should not

place for upwards of a year, has many leave a reasonable doubt. In the business connections there, most of which present case it is oath against oath. impose important responsibilities on the

party of a permanent character, he is a It is the memory of parties after a

resident within the meaning of the code. lapse of over twelve years, after two intermediate settlements and writ- Appeal from an order vacating ten agreements based upon such attachment. settlements.

The order of attachment vacated Also held, That as regards the fact herein was issued on the ground of that at the close of plaintiff's case defendant's non-residence. a motion for a nonsuit was made Defendant is unmarried, and has by defendant, upon the ground that been living and transacting business a prima facie case had not been in New York city for upwards of a made out by plaintiff's evidence, year. He became a resident memthat motion, from the facts in the ber of the Society of Civil Engicase and the principle above stated, neers, of the Bullion Club, of the was wrongly denied.

Mining Stock Exchange, also a Also held, As regards the fact that trustee of a railroad, of several it is claimed, and appears to be mining companies organized in this true, that no exceptions were taken city, and president and manager of to the findings and conclusions of the United States Mining Investlaw made by the referee, and that ment Company. strictly the case and exceptions He had expressed his intention to have not been settled and ordered numerous persons of remaining here on file,-the General Term may re- permanently. verse a judgment upon the facts, He applied for membership in without reference to any exceptions, the Union League Club as a nonjust as the Court at Special Term resident, but more than four months

prior to this action requested that Judgment reversed, referee dis- his membership be changed from charged, new trial granted, costs to non-resident to resident. abide the event.

W. Dorsheimer, for applt. Opinion by Boardman, J.; Learn- J. H. Choate, for respt. ed, P. J., concurring; Bockes, J., Held, That the weight of evidence takes no part.

is clearly with ihe defendant.

He has plainly neither domicile,

may do.

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