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Council of the City of Albany for- to the common council the right to bidding such act within certain fix and determine the limits and specified limits, specifically named localities within which slaughterand described, and directing, in the houses may be erected and the interest of health and cleanliness, areas from which they shall be the manner of conducting such excluded. business in the localities from An ordinance which excludes which it is not excluded. Penal- from a specific place or locality the ties are imposed by the ordinance business of slaughtering cattle is a for its violation, which may be re- regulation of that business. 10 covered in a civil action or by prose- Wend., 100. cution as for a criminal offense. Such an ordinance is not void as Such violation of a city ordinance in restraint of trade. 8 Johns., was made, by the Legislature in 418; Cowp., 269; 37 N. Y., 662; 1871, a misdemeanor, punishable 73 id., 65. by fine or imprisonment, or both, in It was not necessary in the ordithe discretion of the court. Laws nance, or in the indictment founded 1871, Chap. 536, Title 15, $1. The upon it, to allege or explain the

. accused demurred to the indict- reasons for its enactment or the ment, and raised the point that the exigency out of which it grew. It common council exceeded its pow- is of the nature of legislative bodies ers in passing the ordinance, and it to judge for themselves, and the fact is therefore void. By the amend- and the exercise of that judgment ed charter of 1870, chap. 77, the is to be implied from the law itcommon council is authorized to self. 12 Wheat., 19; 1 Robt., 1. enact ordinances with penalties not Order of General Term, affirming exceeding $100 in the matter and order overruling demurrer, affirmed. for the purposes thereinafter men- Opinion by Finch, J. All concur. tioned. Among these is one in subdivision 14 of section 12 of Title 3,

DISBARMENT. "to regulate the erection, use and ATTORNEYS. continuance of slaughter-houses.”

APPEAL.
N. P. Hinman, for plff. in error. N. Y. COURT OF APPEALS.
A. J, Colvin, for defts. in error.

In re Eldridge. Held, That that was a sufficient authority for the passage of the Decided Sept. 28, 1880. ordinance in question ; that the use an order of General Term suspending an atof the word regulate, in the provis- torney from practice is reviewable by the

Court of Appeals. While the measure of ion of the charter above referred to,

punishment is within the discretion of the applied not merely to the erec

court below, the adjudication of guilt or in. tion of slaughter-houses and their

nocence upon the facts is not so far the subcontinuance, but to the manner ject of discretion as to be beyond review. of their use and continuance after

On an application for the disbarment of an at

torney affidavits and minutes of testimony they were built; that it is the

may be used as a basis for the order to show plain purpose of the statute to give cause, but on the trial the accused is en.

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titled to confront the witnesses and cross- the order to show cause was founded examine them.

and which were transmitted to the An attorney, for the purpose of obtaining de

positions favorable to him, sent money to the referee appointed to determine the witnesses and prepared beforehand their an issues raised, were not evidence upon swers to the interrogatories. The deposi- those issues, and could have no tions were afterwards shown to be false. other proper office or effect than Held, That the attorney's conduct was inex. that of pleadings or statements of cusable; that it was a corruption of justice and deserved the censure and discipline of the charges or accusatious relied upthe court.

on. In reply it was asserted that Affirming S. C., 9 W. Dig., 6.

these affidavits were evidence; that This was an appeal from an order

the common law rules did not apply of the General Term suspending the

to the proceeding; that everything appellant from the office and duties was admissible and its effect only

the subject of consideration. of an attorney for three years. It was claimed that the order of the

Held, That upon the application, General Term was not appealable, affidavits, minutes of testimony, anybecause resting in discretion, and thing which furnishes needful infor. that where no legal question is in

mation may be used as the basis volved, 10 dispute as to jurisdiction upon which to found an order to or authority, the conclusion of the show cause, but upon the trial the Supreme Court is final and not sab accused is entitled to confront the

witnesses and cross-examine them, ject to review.

and to invoke the rules of evidence. Samuel Hand, for applt.

The appellant was charged with Lewis L. Delafield, for respt. perjury and subornation of perjury.

Held untenable, 75 N. Y., 526; His wife's father had practically 36 id., 651; 59 id., 595; that while disinherited her, no l'ault or misconthe measure of punishment conse- duct of hers explained or palliated quent upon a conclusion of guilt may the act, and it could only be ac. fairly be said to be within the discounted for by the testator's anger cretion of the immediate tribunal, against her husband, or the persistthe conclusion itself, the adjudica- ent and paramount influence of his tion of guilt or innocence upon the other children and those connected facts, is not so far the subject of dis- with them. cretion as to be beyond review. The On this latter ground the appelclass of orders not reviewable for that lant, in his wife's name, and at first reason are substantially those ad- as her proctor, and all the time as dressed to the favor of the court, to her counsel, resisted the probate of which the applicant has no abso- the will. Upon the hearing he inlute right, which may or may not troduced in evidence the testimony be granted without wrong on either of three witnesses taken out of the hand. The order appealed from is state and by commission. Their not of that character.

answers were very minute in details The appellant claimed that the and unusually long and full, and affidavits and papers upon which tended to show undue influence

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operating upon the testator's mind ly present when the deposition was and producing the result accom- taken, and read to the commissioner plished by the will. Probate was the answers he had prepared, and refused. The surrogate, in his then left with the witness written opinion, gives very slight weight to out in full the answers to the crossthe evidence taken by commission, interrogatories which the latter read and rests his conclusion mainly up- from the memorandum to the comon the other evidence in the case. missioner; that the witness' testiNot long afterwards the defeated mony was preceded and followed by parties presented to the surrogate a payments of money by appellant. large mass of affidavits tending to His letters were produced suggestshow that the evidence taken by ing a destruction of their correscommission was false and a fraud pondence and begging a return of upon the surrogate, and that the the memoranda used at the taking appellant herein was the author and of the deposition. The original contriver thereof; that he had pro- memoranda, alleged to be in the cured two of the witnesses to per- handwriting of a copyist of the apjure themselves and that the other pellant, were attached to the affiwas a myth. The surrogate made davit. Appellant's answer admits an order requiring the appellant to furnishing the memoranda. It does show cause why the decree rejecting not deny the authenticity of the prethe will should not be opened and pared answers produced, and admits vacated, and the evidence taken on and to some extent palliates and excommission stricken out and ex- cuses the payments of money. The puoged as procured by fraud, per- correspondence produced was not jury and subornation of perjury. A disputed. The appellant denied settlement between the parties was reading the answers for the witness subsequently made, in which the and leaving those framed for the appellant took no part, through cross-interrogatories to be read by which the decree rejecting the will the witness. The memoranda of was vacated, the evidence taken on answers to cross-interrogatories occommission stricken from the rec- cupies about eighteen pages comord, the will admitted to probate, pactly printed and was very careand soon after a provision made for fully prepared. It is identical with the contestant to some extent rec- the deposition read before the surognizing her equitable claim. This rogate. settlement was soon followed by Held, That upon the appellant's this proceeding. Appellant an- own admissions his conduct was inswered denying the charges. The excusable; that his dictating the anaffidavit of one of the witnesses exa- swers of the witness was a corrupmined on commission alleges that tion of justice and deserved the the appellant wrote out in detail censure and discipline of the court. answers to be given by the witness Order of General Term affirmed. to the interrogatories and cross-in- Opinion by Finch J. All concur. terrogatories; that he was personal

DIVORCE.

satisfied the parties intended to inN. Y. COURT OF APPEALS.

dulgo, might with ordinary facility

have taken place. D. & S., 132, 135. Conger, respt. v. Conger, applt.

An adulterous disposition must be Decided Sept. 21, 1880.

established on the part of the deIn an action for divorce, in the absence of di. fendant, and the burden of doing

rect proof, the court must be satisfied that a this is upon the plaintiff. 2 S. & D. criminal attachment subsisted between de- Apps., 372. The law presumes the fendant and the alleged paramour, and that defendant is innocent of any violaopportunities occurred when the intercourse in which they intended to indulge might tion of his marriage vow, and that with ordinary facility have taken place.

he observes the obligation of his In the absence of criminating circumstances, contract. In the absence of crimimere association or intercourse between a

nating circumstances mere associaman and woman cannot be attributed to an

tion or intercourse between a man improper purpose. To justify a decree of divorce such proximate and woman cannot be attributed to circumstances must be proved as by former an improper purpose. decisions, or in their own nature and ten

Guilt cannot be presumed when dency, satisfy the court that the criminal

the evidence shows that the defendact has been committed.

aut was visited by the woman with This was an action for divorce whom he was charged to have combrought by a wife against her hus- mitted adultery at a reputable house, band on the ground of adultery. part of the visits being in company The defendant was married to the with her husband, openly, at no plaintiff in 1836; at the time of her unusual hour; that detectives were marriage plaintiff owned a large placed upon their track, who kept amount of property. They bad a not only within sight, but within large family of children. Defendant hearing, but spoke of no indelicate had before this action was com- word or act by either; and although menced borne an excellent reputa- there may have been opportunity, tion. It was claimed by defendant there was no evidence of the will to that the action was instigated by improve it. 71 N. Y., 137. the plaintiff's children to deprive

To justify a decree of divorce, him of the benefit which by virtue there must be such proximate cirof his marriage he had in the plain- cumstances proved, as by former tiff's property. The referee reported decisions, or in their own nature and in favor of defeudant.

tendency, satisfy the court that the Robert Sewell, for applt.

criminal act has been committed. Jno. E. Parsons, for respt. 1 Hagg. Cases 299; 21 N.J. Ch. 246;

Held, In an action for divorce, in 16 N. L. L. & Eq., 122; 17 id., 453; , the absence of direct proof, the court 5 Iowa, Clark, 204; 5 Daly, 296; must be satisfied that a criminal at- 71 N. Y., 537. tachment subsisted between the de- When, on the part of the plaintiff fendant and the alleged paramour, there is evidence at most of opporand that opportunities occurred tunity, or the being together of the where the intercourse, in which it is parties, not that opportunity which

9

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accompanies design, or is created cies at the time of the dissolution of the by contrivance, but that merely

company, less the unpaid premiums. which shows a possibility that the This was an appeal from an order act might have been committed, none of General Term, affirming an order of improper conduct in the enjoy. of Special Term confirming the rement of that opportunity, while on port of a referee allowing the paythe part of defendant is the direct ment of a number of disputed death and positive oath of the person claims, arising upon policies issued charged with having joined in the by the Guardian Mutual Life Inact that it was not committed, it is

surance Company, which were runentitled to weight in answer to any ning at the date of the appointment ivference which might without it be of the receiver for said company, drawn from circumstances, although and upon which premiums had been it might be quite unimportant in paid to some time subsequent to answer to direct and positive proof such date. The persons insured by given by a witness of whose honesty these policies died subsequent to the and truthfulness the court was sat- time to which the premiums had isfied. It cannot by any just infer- been paid. A notice had been ence be said either that the adulte- served by the receiver to the effect rous act was committed, or even that he would receive no more prethat there was gross impropriety of miums. conduct.

Raphael J. Moses, for applt. Judgment of General Term, re- Rufus W. Peckham, Wm. Barnes, versing judgment for defendant on Geo. H. McAdam and Wm. D. Whitreport of referee, reversed, and ing, for respts.

. judgment for defendant afirmed.

Held, That for the purposes of Opinion by Danforth, J. All con- enforcement, the policies are just as cur, Folger, Ch. J., in result.

effectual as if the premiums had been actually paid ; that the claims

on these policies were not death INSOLVENT INSURANCE COM- claims, properly speaking, but PANIES. DEATH CLAIMS. claims for damages upon policies N. Y. COURT OF APPEALS.

running at the appointment of the

receiver, and the rules laid down in In re application of the Attorney the case of the Security Life Ins. General v. The Guardian Mutual and An. Co., 78 N. Y., 129, furnish Life Insurance Company.

an accurate and just basis for the Decided October 12, 1880.

computation of such damages, the only difference being that, in this

the The receiver of an insolvent insurance company case, deductions from

gave notice that he would receive no more which would otherwise be allowable premiums. Some of the holders of policies should be made for the amount of then in force having afterward died, Held, That the policies could be enforced as if the premiums unpaid at the time of the premiums had been paid; that the claimants

deaths of the insured. were entitled to the present value of the poli- Order of General Term, affirming

sums

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