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possession of and improved ; to se- proposed to show that he parted cure him for the improvements she with the note to some other person gave him her note for $2,000, in full than S. There was no exception to settlement of all claims up to the this ruling. date thereof, and took back a re- Defendant then offered to show ceipt showing, as well as the note, by the same witness that he had that a full settlement had been served a notice in writing on the effected, and that when S. conveyed plaintiffs to produce the note; also the property to him, Feb. 28, 1872, that he had made inquiry concerning defendant gave up the note for it of all the members of his own and $2,000. Defendant testified that he of the family of S., and had not been held this note until Feb. 28, 1872. able to ascertain the whereabouts He was then asked : “Did you part of the note, or whether it was still with its possession on that day?" in existence; and that he last saw it This was objected to, and the court in the possession of S. The court ruled that defendant might testify made the same ruling and no exthat he parted with possession of ception was taken. the note to any other person than Defendant then offered to show S., but not that he parted with it to by the same witness that he parted her. The trial took place in March, with the note, without undertaking 1877.

to show to what particular person. James H. Van Gelder, applt. in Plaintiff did not object to proof of

his parting with the note, except person.

by delivering it to S. This objecJames B. Olney, for respts.

tion was sustained, and an exception Held, That when the holder of a taken. Defendant was permitted promissory note parts with the pos- to show that he held a note of session of it to the maker, it is a $2,000 made by S. until Feb. 28, personal transaction between the 1872. holder and maker within the mean- Held, That the rulings of the ing of section 399 of the Code of court were correct. Procedure, which was in force at It appeared that plaintiffs claimed the time of the trial, and so the under a deed executed by S., whereruling was correct.

by, in consideration of assisting to Defendant then offered to show pay for the maintenance of herself by the same witness that on that and husband, she conveyed her day he parted with the possession personal property and choses in of the $2,000 note of S.; that he had action to them. Defendant offered not had or seen it since that time, to prove by his own testimony what and that it was not then in his pos- was said by S. and took place besession or under his control, and tween her and his wife on the eventhat after searching for it among ing of the day on which said deed his papers he could not find it, and was executed. did not know where it was. This Held, Incompetent; that plaintiffs

excluded unless defendant title could not be affected by the

was

declaration of their assignor made lowed by misrepresentation which after the assignment.

induced the plaintiff to sell to such Judgment of General Term, af- customer a large amount of tobacco, firming judgment for plaintiffs, af- in reliance upon the representation firmed.

that such customer was of ample Opinion by Folger, Ch. J. All pecuniary responsibility. concur.

The jury rendered a verdict in

favor of one of the defendants and CONSPIRACY.

against all of the others, under the

instruction of the court that a verN. Y. SUPREME COURT. GENERAL dict might be rendered in favor of TERM. FIRST DEPT.

the plaintiff against all the defendJohn C. Fuller et al., applts., v. ants or against any upon their being William A. Robinson, impl’d, &c., satisfied that a conspiracy had been respt.

established which had resulted in Decided May 14, 1880.

loss to the plaintiff between any or

all the defendants, the question as In an action for damages resulting from a con. spiracy to defraud, the jury may render a

to each defendant being whether or verdict in favor of one defendant and not he was a guilty participant in against another, the question of liability de- the wrongful combination to defraud pending upon whether or not the particular the plaintiff

. defendant was a guilty participant in the alJeged wrongful combination.

On the trial the court allowed eviThe existence of a conspiracy to defraud being dence on behalf of defendant Rob

established, all the persons who with fraudu inson, a broker, against objection lent intent participated in such conspiracy and exception, to the effect that are responsible for the damages resulting therefrom to the injured party.

there was a general usage which The presumptions in such cases are in favor of prevailed in the tobacco trade that innocence.

sellers did not rely upon the stateProof of a custom which is general is not ob- ments of their broker as to the jectionable when there is nothing in the con

credit and standing of proposed custract to exclude its application. Parties are presumed to contract in reference to a gen- tomers, but made and relied upon eral usage or custom which prevails in the their own investigations to ascertain particular trade or business to which the the credit of a proposed customer. contract relates.

The appeal here was taken by the Action to recover damages by plaintiff from the verdict in favor of reason of fraudulent misrepresenta- one of the defendants respondent. tion in pursuance of a conspiracy,

Cyrus Lawton, for applt. charged to have existed between the defendants, to defraud the plain

S. G. Courtney, for respt. tiff.

Held, The right of the appellant The conspiracy charged consisted to recover against the respondent of a fraudulent scheme to misrepre- depended entirely upon whether he sent and deceive the plaintiff, a to- participated in the alleged wrongful bacco dealer, as to the credit and combination. responsibility of a customer, fol- The jury were properly advised

that if the evidence were sufficient We think the judgment should be to satisfy them of the respondent's affirmed. participation in the conspiracy, and Opinion by Brady, J.; Davis, P. that it was done with a fraudulent J., concurring. intent, he was responsible to the plaintiff and must answer equally with the other defendants. Of

SALES FOR ASSESSMENTS. course, this was predicated in the N. Y. SUPREME COURT. GENERAL first instance of the statement that

TERM. FIRST DEPT. it was necessary for them to determine the existence of a conspiracy to vacate sales for assessments.

In re petition of William Austin But having arrived at that conclusion the respondent must respond if he

Decided July 1, 1880. was connected with it and a guilty A sale of real estate in New York City for as. participant therein.

sessments is invalid where interest is added And further, that the court prop

to the assessments from the dates of confirma

tion thereof, instead of from the dates that erly admitted the testimony with re

the assessments were subsequently entered spect to the general custom in the in a record of the “titles of assessments" tobacco business to disregard the with date of confirmation, &c., to be kept in statements of brokers in reference

the Street Commissioners' office, as provided to the credit and standing of cus

by section 6, of chapter 573, of Laws of

1853, for the reason that an unauthorized tomers or purchasers, and for the amount of interest is included in the assess sellers to make their own inquiries ments, as to the purchaser's credit. There No assessment is due on a lien until such entry was nothing in the agreement to ex

is made, and interest can be added only from

the date of such entry; but a person acquirclude its application. Parties are

ing title to such land after such sale for aspresumed to contract in reference to

sessments is presumptively not a party agan usage or custom which prevails in grieved, so as to permit such sale to be the particular trade or business to

vacated on his behalf. which the contract relates. 1 Ecq., Appeal from an order denying 425 ; 6 N. Y., 72.

petition to vacate sales for assessIf this view be not sound, how- ments. ever, it is quite apparent from the This proceeding rests upon the whole case that the evidence ad- ground that interest was charged mitted did not prejudice the plain- and collected on the assessments tiff's case, considering the charge to stated before it was due and paya. the jury that the question which blo, namely, from the dates of the they were to consider in regard to confirmation of the assessments, the respondent was whether he aided which is alleged to be in violation of or assisted in defrauding the plain- section 6, of chapter 579, of the tiff or was a party to the alleged Laws of 1853, which provides among conspiracy, and if they were satis- other things that no assesments for fied that he was, under all the facts any improvement shall hereafter be and circumstances of the case, they deemed to be fully confirmed so as should find against him.

to be due, &c., until “the title

*

*

thereof with the date of confirmation Order affirmed without prejudice shall have been entered, with the to another application. date of such entry, in a record of the Opinion per curiam. titles of assessments, to be kept in the Street Commissioners' office,

DAMAGES. APPEAL. and until the title of N. Y. SUPREME COURT.

GENERAL the said assessment shall have been

TERM. FIRST DEPT. also entered, &c., in a record of the titles of assessment, to be kept in

Samuel G. Corlies, applt., v. the office of the Clerk of Arrears.” Robert E. Ferguson, respt.

Decided July 1, 1850. Moody B. Smith, for applt.

Unless a contract was made with reference to J. A. Beall, for respt.

special circumstances affecting the damages, Held, With two exceptions, in

only such damages are recoverable for breach

of the contract as are proximate and certain, terest was added to the assessments

and such as are the usual and natural consefor which the sales were made from quences of such breach, and may have reathe date of the confirmation thereof,

sonably been supposed to have been within instead of the date of the subsequent where a party appeals from a judgment on the

the contemplation of the parties. entry as provided by the statute,

ground that same is too small by reason of supra. Therefore, an unauthorized the allowance of an offset, the appeal being amount of interest was added to the for the purpose of testing the validity of the assessments for which certain of the

offset, and afterwards upon execution collects

his judgment, this does not waive his right to sales were made, inasmuch as the

prosecute the appeal, inasmuch as the proseassessments did not draw interest

cution of the appeal is not inconsistent with until the entry was made as required

the collection of the judgment. by the statute, supra, for such as- Appeal by the plaintiff from a sessments were not due until then. judgment entered in his own favor

Held further, that a sale for any upon a report of a referee. The apsum of interest not authorized ren- peal is specially from the allowance ders the sale illegal, and this sale by the referee of an offset claimed was therefore illegal as to the cases by the defendant, and the deduction where an unauthorized amount of of the sum thus allowed from the interest was added to the assess- plaintiff's demand. ments. In the matter of Louisiana Action to recover of defendant, St. John, Mss. opinion, Special as stockholder of a manufacturing Term, by Justice Brady.

company, a debt of the company But the petitioner obtained title which had been put in judgment by deeds dated October 15, 1875, within a year from the time the and November 15, 1875; and as all same was contracted, for failure these sales took place prior to his to pay in the amount of the capital acquisition of title, the same reason- stock and file a certificate thereof, ing applies to him as an aggrieved as required by the manufacturing party, which was adopted in the act of 1848. There was no quesmatter of Saunders, decided at this tion of the defendant's liability to General Term.

a lawful creditor under the act, and Vol. 10,--No. 21.*

his defense was an offset for dam- on hand. The referee, however, ages to the company, occasioned by has placed his judgment on the the plaintiff's delay in furnishing ground of fraud. But whether the the personal property in question, statement as to the amount of matewhich was the foundation of the rial on band was in the nature of a debt against the company. The collateral undertaking, or was a misproperty sold by the plaintiff to the representation sufficient to form the company consisted of clothes wring- basis of an action for deceit, the deers and material intended by the fendant failed to establish any damcompany to accompany a washing age to the company. It clearly apmachine manufactured by the com-peared that the company received all pany. The offset claim proceeds in the machines contracted to be delivsubstance upon the charge that the ered under the contract,and that they plaintiff misrepresented the number were sold and the company received of wringers which he had on hand, the same price they would have completed or nearly completed; that received had they received the the immediate possession of the wringers in time. Furthermore the wringers for sale, in connection with profits that the company might the washers, was the company's have made upon the sale of the main inducement to enter into the washers with the wringers attached contract; and that large damages were inadmissible as damages. were sustained by the company from There was no sufficient data upon its inability to procure the washers which to basa same. They were in time to fill outstanding orders. neither proximate nor certain.

The referee held that the com- The plaintiff was not informed pany had been thus damaged to the that the sale of the washers was deextent of two thousand dollars, and pendent upon the probable comdefendant was entitled to a deduc- pletion of the wringers. The contion of that amount from the value tract, therefore, was not made with of the wringers and material with reference to any special circumwhich he was charged. From the stances affecting the damages. The allowance of this offset the plaintiff parties contemplated nothing more appeals.

than the usual and natural conse

quences of a breach. The case is George W. Stephens, for applt.

thus within the principle of 60 N.Y., Erastus New, for respt.

487, and the cases there cited. The Held, Without passing upon the fact that the plaintiff has collected question as to whether such offset his judgments does not prevent his is available to the defendant, we prosecution of the appeal. His apthink the referee erred in this peal was not inconsistent with the branch of the case. In the written collection of the judgment. See contract to furnish the wringers, the opinion of Grover, J., Knapp v. plaintiff did not undertake to fur- Brown, 45 N, Y., 210, commentnish any number of wringers, but ing upon Clewes v. Dickinson, 8 only all the wringers he now had Cow., 328. The provisions of the

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