grantor thereof, having procured a Held, That the order was not apdischarge from the $1,000 mortgage pealable. 46 N. Y., 409; id., 564; 47 upon payment of the amount ad- id., 507; 48 id., 433; 73 id., 136. judged to be its proportionate share, Appeal dismissed. occupied a position of equality with Opinion by Earl, J. All concur. S., the same position she would if she had purchased parcel 1 at the

CONTRACT. foreclosure sale, and parcel 1 should pay the balance of $1,584 not paid N. Y. COURT OF APPEALS. when it was discharged from the $4,000 mortgage.

Avery et al., respts. v. Willson et Order of General Term, affirming al., applts. order of County Court, modified. Decided June 8, 1880.

Opinion by Church, Ch. J. All A contract for the sale of personal property concur, except Andrews, J., absent . provided that the property should be all de

livered together at a certain time. A por

tion was delivered before that time at defendAPPEAL.

ants' request.

Correspondence ensued be

tween the parties as to delivery of the balN. Y. COURT OF APPEALS.

ance, but in no part thereof did defendants

claim they were not liable for the portion reWhitson, applt. v. David, respt ceived unless the balance was delivered. Decided June 18, 1880.

Defendants subsequently declined to receive

the balance on the ground that the time for An order of General Term, reversing a judg.

delivery had expired. Held, That they ment entered on the verdict of a jury and

thereby waived full performance, and were an order denying motion for a new trial on

liable for the portion received. the minutes and granting a new trial, is not This action was brought to reappealable to the Court of Appeals.

cover the price of a quantity of glass This action was tried before a sold by plaintiffs to defendants. It jury, and a verdict rendered for appeared that plaintiffs made an plaintiff. Defendant moved for a oral contract with defendants, by new trial upon the minutes of the which they agreed to sell and detrial judge, and an order was en- fendants to purchase, at a price tered denying such motion. Judg- pamed, a certain number of boxes of ment was entered upon the verdict, glass, which were to be delivered and then defendant appealed from together at one and the same time. the order and the judgment to the They delivered only a portion of the General Term, and there both the glass, which defendants received and order and the judgment were re- accepted without objection, and versed and a new trial granted. without any notice or intimation to Plaintiff appealed from the order plaintiffe that they would not theregranting the new trial, stipulating by consent to become liable for the for judgment absolute in case of af- glass delivered unless and until the firmance.

residue should be delivered. It was Walter S. Logan, for applt. proved that before any of the glass Alexander Ostrander, for respt. was delivered defendants wrote to


the plaintiffs to forward them at ditions, especially in reference to once a small portion which was de- the time of delivery of the goods scribed. Some days after the de- sold. livery of a portion of the glass, they Judgment of General Term, afwrote to plaintiffs that they wanted firming judgment for plaintiffs, afthe order completed within a reason-firmed. able time, and would like to hear Opinion by Miller, J. All concur. from them as soon as convenient. After this a correspondence ensued

CRIMINAL LAW. which showed the parties understood the contract differently. Plaintiffs

N. Y. COURT OF APPEALS. wrote notifying defendants that they

McKenna, piff. in error y. The had glasses of sizes which would en- People, defts. in error. able them to complete a delivery of

Decided June 8, 1880. the whole number of boxes originally ordered, and offered to do so On a trial of an indictment for murder the provided the glass already accepted

judge charged that if the jury believed the

evidence offered in behalf of the people to be and received by defendants should

true, they would be justified in finding the be allowed as part execution of the prisoner guilty of murder in the second decontract. Defendants wrote in reply

gree, and defined the offense. A verdict of declining to receive the glass on the

manslaughter in the third degree was

dered. Held, That the charge was erroneous, ground that the time for completing

and that it could not be said, from the fact the contract had expired. They in that the verdict was not murder but manno part of the correspondence slaughter, that the objectionable charge did claimed that they were not liable to

not influence the jury. pay for the boxes received in Reversing S. C., 8 W. Dig., 518. the remainder was not delivered. Plaintiff in error was indicted for Esek. Cowen, for applts.

murder. Upon the trial he was conThomas Allison, for respts. victed of manslaughter in the third

Held, That the facts showed that degree. The judge charged the jury defendants had waived the full per- that " if they believed the evidence formance of the contract, and they offered in behalf of the people to be were liable for the glass delivered true, they would be justified in findand accepted by them. 25 Wend., ing the prisoner guilty of murder in 665; 5 id., 253; 3 T. & C., 704; 6 the second degree.” He defined id., 253; 3 Robt., 173; 2 T. & c., this offense as "the unlawful kill423; 1 id., 575.

ing of a human being intentionally, The general rule in this state is but without deliberation and prethat no action lies upon a special meditation." contract for the price agreed upon

Nelson J. Waterbury, for plaintiff until performance of such contract. in error.

The parties must fulfil the terms Benj. K. Phelps, for defendant in of the contract; they have a right error. however to act outside of the con- Held, error; that the charge as tract by changing its terms and con- given may well have been under


stood by the jury as involving the firming judgment of conviction, reopinion of the court upon the intent versed and new trial ordered. of the prisoner in committing the Opinion by Danforth, J. All concrime as well as the other elements cur, except Folger, Ch..)., not voting. of the crime, and was likely to mislead and prejudice them. The attention of the jury was thus directed EVIDENCE. JOINT DEBTORS. to evidence of inculpation merely, its N. Y. COURT OF APPEALS. weight stated to them as sufficient in law to sustain a conviction for the

Wallis, applt., v. Randall, impl’d, graver offense, so that the question respt. of fact to which their minds were Decided June 1, 1880. turned related to the credibility of

In an action to recover the balance of the purcertain witnesses, and not to the

chase price of real estate, the defense was weight and measure of their testi

that a mortgage had been executed and demony or the existence of the intent. livered in payment of such balance. PlainHow far that testimony was modi

tiff claimed that he took it as security, and fied or neutralized by that produced

gave evidence showing that he objected to

taking it, and that defendants represented by the defendant, or what inferences

it was good and ample security; that a prior should be drawn from any of it, was mortgage was foreclosed, and the land sold virtually excluded from their in- for ouly enough to pay said mortgage.

Held, That evidence tending to show what quiry. The judge in his charge

the land was worth the day the mortgage overstepped the province of a judge.

was given was admissible in answer to plainHis opinion stated much tift's evidence. stronger than it ought to have been, A witness testified that a contract had been

abandoned and a new verbal contract made. and was calculated to make an

Held, competent as evidence of a fact. erroneous impression on the minds

A joint debtor has no authority to bind a perof the jurors, and it could not be

son jointly liable with him by his statements said that the prisoner had at the or admissions, unless he is the agent, or in outset of their deliberations an even

some other way the representative of such chance that their conclusions would

person. be unbiased.

This action was brought to reFrom the fact that the verdict was cover the balance due on a sale of not murder in the second degree real estate made by plaintiff to debut manslaughter, it cannot be said fendant R. and one P., who is that the objectionable charge did named as a defendant, but was not not influence the jury. They would served. The defense interposed be relieved to some extent from the was that R. and P. bad caused a necessity of estimating for them- certain mortgage to be executed by selves the value of the evidence, and other parties to plaintiff, which he hence the observation of the judge received in payment of the amount was not only erroneous but material. due him.

It was not disputed that 7 Wend., 409; 19 id., 402; 6 N. Y., said mortgage was executed and 384 ; 53 id., 161.

taken by plaintiff, but he claimed Judgment of General Term, af- he received it only as security. The


evidence on this point was conflict

L. B. Kern, for respt. ing, and a verdict was rendered in Ileld, No error; that the evidence favor of defendant. Plaintiff, as a was competent under the circumwitness on his own behalf, gave evi- stances of the case ; that it was dence showing that the mortgage proper in answer to and in explanawas a second mortgage upon a farm, tion of evidence given by plaintiff; payable in eight annual instalments; that it is no answer to this that that when R. and P. proposed to plaintiff's evidence came out necesgive it to him he objected to taking sarily as part of his case; it was it, and that they represented it was sufficient that plaintiff had put the good and ample security. Defend- evidence in, and it was proper to ant's counsel objected to this evi- allow defendant to meet it and parry dence, unless he was permitted to its force. show what the farm was

worth. Green v. Disbrow, 56 N. Y., 334, Plaintiff's counsel stated that he distinguished. offered to show what occurred at P. was a non-resident of this that time. The court overruled the state, and his evidence was taken objection, and an exception was by commission ; his deposition was taken. Plaintiff then testified that read on the trial on behalf of deR. said the mortgage was good and fendant. After he had stated, in ample security, and that “ the farm reply to prior interrogatories, that was worth it;" that he finally took the contract set out in the complaint the mortgage as security, and held had been made, he was asked if the it for several years, when the first contract had been abandoned by mortgage was foreclosed, and the the parties thereto.

He replied farm sold for only enough to pay that it was, and a new verbal consaid first mortgage. After plaintiff tract made. This was objected had given other testimony, and to, and the objection was rested, defendant called witnesses, tained. and, after giving evidence tending Held, error; that the question to show that the mortgage was and answer were competent; that given plaintiff in payment of the the fact was one u witness could balance due him, he proposed to state if he knew it, without detailing ask his witnesses what the farm was the circumstances. 14 N. Y., 465; worth the day the mortgage was 21 Barb., 247; 33 id., 229 ; 31 N. given. Plaintiff's counsel objected Y., 379 ; 36 id., 365. to this evidence as incompetent and Defendant, on his examination in immaterial. Defendant's counsel his own behalf, testified, among stated that the evidence was offered other things, that plaintiff had to show that the farm was worth “ never, in any way, stated to me just what defendants had stated it that he took the mortgage as secuwas worth.

rity; he never understood it was The court overruled the objec- security.” Following this in the tion.

printed case is," Objected to by W. E. Lansing, for applt.

plaintiff's counsel ; court overruled

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* all moneys

objection; plaintiff's counsel duly that he appointed Mc. I., “ of said excepted."

village, collector, to collect the taxes Held, That while it was not com- to be levied and assessed upon said petent for the witness to testify in village,” and contains a condition such general terms to what another that if Mc. I. “ shall well and truly person did or did not understand, collect the tax which may be deyet as the objection was interposed livered to him, and faithfully disafter the judgment was out, it should charge his duties as such collector, have been more specific.

and pay over A joint debtor has no authority to which he shall receive for taxes as bind any other person jointly liable such collector, and render a true with him by his statements or ad- and faithful account," &c., the oblimissions, unless he is the agent, or, gation shall be void. The village of in some other way, tlie representa- E. contained within its corporate tive of such person.

2 N. Y., 528; limits portions of the towns of M. 11 id., 176.

and S., and plaintiff claimed that, Judgment of General Term, af- by the terms of the bond in suit, firming judgment on verdict for de- Jc. I. was obliged to pay over to ferdant, affirmed.

him state, town, and county taxes Opinion by Earl, J. All concur. collected, which the supervisors of

the county had levied upon the


William G. Wilson, for applt.

T. Westervelt, for respts.

Held, That the defendant's conWard, applt., v. Stahl et al.,

tract was for the collection of such impl’d, respts.

taxes as the village authorities were

authorized to impose for village purDecided June 15, 1880.

poses, and not for the taxes of such One Mc.I. was appointed collector of the village portions of the towns as constituted

of E., and gave his bond to “ well and truly parts of the village, and to extend it collect the tax which may be delivered to

beyond this would be enlarging its him, and faithfully discharge his duties as such collector, and pay over all moneys plain import. The fact that there which he shall receive for taxes as such col. is only one treasurer, upon whom Icetor, and render a true and faithful ac- the duty devolves of collecting the count." The village was in two towns. taxes of all descriptions, do is not lleld, That the liability of the sureties ex

authorize a construction not wartended only to the collection of such taxes as the village authorities were authorized to ranted by the terms of the bond. impose for village purposes, and not to the The liability of a surety is limited collection of taxes for the towns,

to the express terms of the conThis was an action upon a bond tract, and his obligation should be executed by defendants, as sureties construed strictly and favorably to for one Mc. I. The bond states the surety, so far as is warranteil that plaintiff had been appointed by the terms employed. 2 Cai. treasurer of the village of E., and Cas., 1,

Vol. 10.-No, 15*,

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