mand, for the purpose of determining the Judgment reversed, and a new trial orquestion of jurisdiction in an action of dered. disseizin. The value of the land sued for Opinion by Smith, J.; Mullin, P. J., is no necessary part of the case. Any and Gilbert, J., concurring. evidence regarding it is unnecessary, and superfluous, unless it is made material, and put in issue, by a plea to the juris



Southgate v. Atlantic and Pacific RailOpinion by Foster, J.

road Company.

Decided October Term, 1875.

The power of the officers of a corporaLABOR AND SERVICES.

tion to employ counsel is implied, N. Y. SUPREME COURT, GENERAL TERM, and need not be proved. Such offiFOURTH DEPT.

cers have power to engage attorneys Sullivan, respt., v. Sullivan, applt.

without receiving any express

deleDecided January, 1876.

gation thereof.

To prove the value of certain services, To entitle a daughter to recover of her the evidence should show what those father, for wages for her labor and particular services are reasonably services, the contract to pay her must worth, not what is the value of serbe clearly proved.

vices generally. The plaintiff in this action is the The plaintiff, an attorney, brought this daughter of defendant, and they had lived action to recover the reasonable value of together and kept house, plaintiff acting certain professional services, alleged to as housekeeper for many years. They had have been rendered defendant. lived in N. Y., and had generally lived

The first count in the petition claimed alone. Defendant paid all plaintiff's ex- fifteen hundred dollars for services perpenses, and supported her all the time she formed, and for counsel and services as lived with him. Plaintiff brings this ac- an attorney-at-law, rendered at defendtion for her wages, &c.

ant's request. Johnson & Hoyt for plff.

The answer was a denial of all the alRuger & Jenny for deft.

legations contained in the petition. The

bill of particulars accompanying the first Held, That plaintiff should have been non-suited. The evidence of the plaintiff tended to, and stated a demand for coun

count referred to certain specific cases atclearly shows that the relation of master and servant never existed between plain- sel and services as an attorney generally

from March 15th, to October 15th, 1867. tiff and defendant.

The plaintiff gave testimony in his own The relation the parties bore to each behalf, and stated that the services were other, was clearly that of parent and child. performed, and that he was employed by

That where members of a family live the superintendent of the road, and that together, the law will not imply a promise he at different times corresponded with to pay for board on the one side, nor the various officers and managers of the Wages on the other.

road, and that they recognized him as an An express, distinct, and well under- attorney and acquiesced in his employstood bargain should be proved before ment. any such claim should be allowed. Rob He also proved by a witness, against the inson v. Cushman, 2 Den. 152; Williams objection of the defendant, that the serv. Hatilimen, 3 Coms., 312.

vices of a good attorney at the place

where plaintiff was, would be reasonably the time the injuries were received plainworth two hundred dollars per month. tiff was five years and three months old,

There was a verdict and judgment for and resided with his mother in a tenement plaintiff.

house, on the first floor, in rooms leading It is insisted by the defendant that be- into the back yard, and also into the street, fore the plaintiff could recover, it was down some stairs. Plaintiff had been playnecessary for him to show that the offi-ing with other children in the back yard, cers who employed him had authority and came in for a drink of milk; the from the corporation to make the employ- mother gave it to him, and he sat at the ment.

table to drink it, when the mother passed Held, 1. The rule is that not only the into the bed-room adjoining, leaving the appointment, but the authority of the door open, and telling plaintiff to go back agent of a corporation may be implied into the yard, and in five minutes notice from the adoption or recognition of his was brought her that the child had been acts by the corporation.

injured. The mother testified that the Managing officers of corporations have child had never before been in the street. power to employ attorneys and counsel- The evidence tended to show that the lors, without express delegations of power, child passed out into the street, and in or formal resolutions to that effect. attempting to cross defendant's track was 2. The evidence of the witness as to

struck by one of the horses; that the car the value of the services was improper. was being driven at an unusual rate of He testified that the services of a good speed, and that the driver was engaged in attorney wou'd be reasonably worth $200 conversation with persons standing on the per month; his attention should have platform, and was not looking at or giving been called to the services rendered, and any attention to his horses or persons his opinion asked as to what they were crossing the street. The court charged reasonably worth.

the jury that if the mother omitted to

exercise such care in respect to the child Judgment reversed. Opinion by Wagner, J.

as persons of ordinary prudence would exercise under the circumstances, or if the

child omitted to exercise such care as NEGLIGENCE.

might be reasonably expected from one of N. Y. COURT OF APPEALS.

his age, the verdict should be for the

defendant. The jury brought in a verdict Fallon by Guardian, &c., respt., v. Cen- for the plaintiff. tral Park N. & E. R. R. Co., Applt.

Edward McCarthy for respt. Decided January 18, 1876.

A. J. Vanderpoel for applt. Contributory negligence cannot be

Held, No error; that the jury were juscharged against a child of tender fied in holding that plaintiff's mother years, where its parents exercise such

under the circumstances had no reason to care in respect to it as persons of ordinary prudence would exercise suspect, that he would go into the street, under the circumstances, and where but had a right to presume the child would it exercises such care as might rea- obey her direction and go into the back sonably be expected from one of its yard, and that she used ordinary care, (38 age.

N. Y., 455,) that the charge of the judge This action was brought to recover upon the question of the negligence of damages for injuries received by plaintiff plaintiff and his mother was correct; that through the alleged negligence of defend- although a child five years old cannot be ant. It appeared upon the trial, that at regarded as sui juris, it possesses in some

degree reason and judgment, capable of pointment; so, also, proof that defendant understanding what was said, and may be was in actual exercise of the duties of the made subject to the will, and direction of office of collector was prima facie evithose having it in charge, and a mother dence of his official character, and dismay be assumed from natural love and pensed with the necessity of showing his affection, to be vigilant in protecting it appointment. But the effect of this evifrom harm,

dence was overcome by the proof on crossJudgment of General Term, denying a examination of the trustee, that he did new trial, affirmed.

not make or sign any written appointment Opinion by Church, C. J.

for defendant, and did not file any in the proper clerk's office, as required by law.

That defendant was not an officer de OFFICER. APPOINTMENT. jure; that his acts as an officer de facto

may be valid, so far as the public and N. Y. SUPREME COURT-GEN'L TERM third persons are concerned, but when the FOURTH DEPT.

officer himself does an act for which he Burditt, applt. v. Barry, respt. is sued, he can establish his justification Decided January, 1876.

only on proof that he is an officer de jure. The presumption is that a public offi

The judgment must be reversed. cer performs his duty.

Opinion by Gilbert, J.; Mullin, P. J., This presumption may be overcome by and Smith, J., concurring.

evidence. Appointment of a collector of a school district by parol not good.

CONDITIONAL SALE. An officer to justify his acts must be an officer de jure.


FOURTH DEPT. This action was originally brought before a Justice of the Peace, and was for a Macauley, applt. v. Porter, respt. wrongful conversion of personal property. Decided January; 1876.

Defendant justified as collector of a When the parties to a sale of real es. school district, and by virtue of a tax list tate stipulate at the time of sale, that and warrant. He was appointed by the on a resale, the grantor is to have a trustee of the said school district as such portion of the profits, such stipulacollector by parol. His appointment was

tion is legal, but the grantor has no not in writing, or signed by the trustee, or

right to insist on a sale, after the filed in the clerk's office, as required by

stipulated time. Such a transaction

is not a mortgage. law. Defendant had acted as such col

This was an action to have a deed delector for some time prior to this alleged conversion.

clared a mortgage, &c., &c. Plaintiff sold

certain premises to defendant by a deed There was judgment before the justice absolute on its face. At the time of the for plaintiff; there was judgment in the sale defendant gave back to plaintiff a County Court for defendant, and from writing, in and by which it was provided such judgment plaintiff appeals.

that the property might be sold within F. Brundage, for respt.

one year for not less than $4,000, being James F. Fitts, for applt.

an advance of $1,500 over the price paid Held, That the legal presumption by the defendant, and that in case of such which exists in favor of the due perform- sale as above, the profits arising upon such ance of duty by a public officer, prima sale should be divided between the defacie, established the validity of his ap-'fendant and his grantor, &c. It was also

provided that if this property should not

EMBEZZLEMENT. be sold within one year, all interest in the N. Y. SUPREME COURT, GENERAL TERM grantor should close, &c. The evidence,

--FIRST DEPARTMENT. on the trial, did not show that the deed

In the matter of John L. Swan. was given for or intended to be a mort

Decided March 7, 1876. gage.

Facts sufficient to establish embezzleHeld, That nothing short of evidence

ment. which shows the existence of the relation A declaration in the recognizance by of debtor and creditor between the parties which the prisoner is released on his to an absolute conveyance, and that it was own signature, that he elects to be in substance a security for a debt, will

tried by the Court of Special Sesturn it into a mortgage. That a convey

sions, no subsequent demand for

trial by jury being made, is u waiver ance, coupled by a stipulation by the

of the right of trial by jnry. grantee that the grantor may have the The court may correct an erroneous senright to buy back the property within a

tence any time during the terin and certain time, or to participate in the pro before the Sheriff has proceeded to ceeds of a sale thereof is not forbidden by execute sentence. law, and where such a contract is made, the parties must abide by it; but such sions to review a conviction for embezgrantor has no right to insist on a resale zlement. after the stipulated time, nor is such a

It appeared from the evidence, on the transaction a mortgage or any thing else trial, that the relator had been in the emthan what it purports to be, viz : a sale ployment of the complainant, Dorlan, for with the privilege reserved to the seller of some years. The latter had reason to berepurchasing the property cold, or of lieve that some one in his employment showing the profits which may accrue was embezzling his money, and he asked from another sale.

one of his debtors, a Mr. Sutton, to set That there is a recognized distinction aside for the payment of his bill certain by the courts between an absolute con- bank notes which, by his mark, could be veyance intended to be a mortgage merely, identified. They were so marked by Mr. and a conditional sale or a sale with Sutton in the presence of Dorlan. An with the reservation of the privilege men- employee of Dorlan's, named Conklin, tioned. Hill v. Grant, 46 N. Y., 496, and was sent to collect the bill. It was his 55 N. Y., 637.

habit to make returns to Swan, who had That the paper given by the grantee, charge of the money. He collected the and accompanying the conveyance does amount of the bill and divided it with not in terms qualify the latter.

Swan, in pursuance of a proposition made That the evidence shows that a mort- by the latter that he should do so. Conkgage was not intended, and the paper ling was acting under the instructions of itself is quite incompatible with the idea his employer, and who, in doing what he that any estate or interest in the lands re- did, was aiding in the development of mained in the grantor.

Swan's dishonesty. Swan kept the money, Judgment affirmed.

and when charged with the conversion

denied it. The bills marked by Sutton Opinion by Gilbert, J.

and received by Swan, were found on the latter when arrested.

It was claimed by the relator the conviction was erroneous, for the following reasons, viz:

1. That the Court of Special Sessions COMPOUND INTEREST. had no jurisdiction to try the prisoner, a N. Y. SUPREME COURT, GENERAL TERM, trial by jury not having been waived.

FOURTH DEPARTMENT. 2. That the evidence was not sufficient

Young, applt., v. Hill, respt. to establish proof of the crime.

Decided January, 1876. 3. That the prisoner was twice sentenced.

Compound interest is only recoverable

on a special agreement to pay such James Orton, for the relator.

interest upon interest after the latter B. K. Phelps, for the people.

has become due. Held, That the evidence was sufficient A final account made by a party, in to establish the crime, as the arrangement

which he includes interest on interest between Conklin and Swan was sufficient

on his own bond, is such a special to establish the intent upon the part of

agreement as binds him to pay comthe relator to convert the money to his

pound interest, own use, and the possession of the money

One F. was for many years agent for of his employer was found on the person one P. who resided in England. In 1817 of the relator.

F. gave his bond to P. for $6,000 at six That a trial by jury was waived by the per cent interest, and from about the prisoner; that prisoner declared in his time he gave it, he held the same in his recognizance by which he was set at lib- possession, with other property of P.'s, erty, signed by himself and his surety, all these accounts, he charged himself

and annually sent his account to P. In that he elected to be tried by the Court of Special Sessions, and he at no time sub- with interest on interest on such $6,000. sequent withdrew his election, then made, $40,000, and plaintiff in the same year

In 1871 such bond amounted to nearly and demanded a. trial by jury. The Court of Special Sessions had jurisdiction made and sent an account to P., and in it

died, and before his death, by himself, he to try the prisoner. The alleged error in

stated : the sentence is unavailing. In pronouncing it the court imposed at have been settled and liquidated, and the

“The foregoing accounts and amounts first a fine of $250, but it was immedi- balance due to the Rev. R. F. F. Pultney ately and before the prisoner left the Court corrected, and the fine o $100 im and omissions, &c.”

is $70,000, subject to correction for errors posed, which was the maximum allowed by the statute. The relator was recalled

In this account the amount of the bond for the purpose. The right of the Court at about $40,000 was included. then and there to correct the sentence

This action was brought for an acinadvertently pronounced cannot be ques- counting, and on the trial this item, so tioned successfully. The power thus ex- far as it included any compound interests ercised may be employed, it seems, at any was struck out. time during the term and before the sher Wm. Rumsey for applt. iff has proceeded to execute the sentence. Brown & Holden for respt. Miller v. Finkle, 1 Parker Cr. Rep. 37. Held, That compound interest is not Judgment affirmed.

recoverable except upon a special agreeOpinion by Braily J.; Davis, P. J., and ment to pay interest upon interest. Fall Daniels J., concurring.

v. Hilton, 11 Paige, 228.

That such agreement can be implied from an account stated, and need not be expressly proved in writing, separately

[ocr errors]
« ForrigeFortsett »