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made on supposed defects in the record

DOWER. TITLE. and not on mere defects of evidence.

N. Y. COURT OF APPEALS. Remedy for defective proof is by way of

Schiffer, applt, v. Pruden, respt. objection and exception.

Decided January 25, 1876. A house of prostitution wherein there is fighting and drinking is within the sta- A right of dower is not divested by the tutory provision for disorderly house. mere finding of the referee that the Writ of error to the General Sessions.

wife has been quilty of adultery ; it

can only be done by u julgment of The prisoner was keeper of a house of

divorce granted upon such finding. ill-fame, which the indictment charged

This action was brought to compel the as being noisy, disorderly and a common

defendant to perform his contract to purnuisance, and the evidence showed that to have been its character.

chase certain lands, by paying the considThe court charged among other things

eration money agreed upon, and taking a that if the jury believed the officer, who

deed from plaintiff. Defendant objected testified that people were fighting and

that plaintiff was not able to give a good

title. It appeared that the immediate drinking in the prisoner's house and that it was a house of prostitution, it was grantor of the plaintiff had, when he conwithin the provisions of the law, but veyed to the plaintiff, and still has, a wife refused to charge that they must find that living. The wife did vot join in the deed, the house was a public nuisance, in order and has not at any time released any into commit the prisoner.

terest she had in the premises. Plaintiff Verdict of guilty.

proved that in an action for a divorce a Counsel for defence moved for arrest of vinculo brought by D. against his judgment for defect in the proof and wife on account of her adultery, it was

found by the referee that she had comerror in the charge, which was denied.

mitted adultery, as alleged in the comMitchell Laird for plff. in error.

plaint, and that D. had also B. K. Phelps for defts. in error.

mitted adultery, and a judgment of diOn appeal, Held, That motions in

vorce between them was denied and the arrest of judgment are made not upon complaint dismissed; and it was claimed mere defects of evidence, but upon that the finding of the referee was a supposed defects in the record itself of conviction of the wife of D. of adulwhich the evidence given on the trial tery, and that she is thereby barred, or forms no part.

has lost her right to be endowed in these The remedy for defective proof is by lands-according to the provisions of 2 way of objection and exception upon the R. S., $ 48, p. 146—which enacts that "a trial; without such an exception, it cannot wife being a defendant in a suit for dibe raised after conviction in cases of this vorce brought by her husband, and condescription.

victed of adultery, shall not be entitled to It was sufficient to bring the case with-dower in her husband's real estate.” in the offence charged, if it was proved that people were fighting and drinking in

Chas. Jones, for applt. the house and that it was a house of J. Edgar, for respt. prostitution.

Held, That the word “conviction," as The prisoner in this case was properly used in said section, means that upon the convicted and judgment should be af- proof and finding or verdict of the adultery firmed.

of the wife, the court has given judgment Opinion by Daniels, J.; Davis, P.J., of divorce against her and dissolved the and Brady, J., concurring.

marriage between her and the husband

com

(52 N. Y., p. 593); and that therefore, al- examination of defendant was had, in though the referee found that the wife of which he admitted the loan from plainD. had committed adultery, yet, as tiff, but claimed and sought to show that she was never adjudged therefor to be di- it had been paid. vorced from her husband, she is still his

The cause

was thereafter referred to wife, and is entitled to her dower and rights Hon. Win. Mitchell, Esq., to hear and dein his lands, and that this possibility of cide. dower affects the title tendered and re It appeared on the hearing that large lieves plaintiff from a performance of his sums of money had been lent to defendcontract.

ant and to his son, both by the plaintiff Judgment of the General Term in favor and by its president, Mr. Marsh, indiof the defendant affirmed.

vidually, (who since said loans and prior Opinion by Folger, J.

to this action had died) and at various times payment had been made upon some or all of these loans by defendant or his

son, or both. EVIDENCE.

But as to the origin of the loan, to N. Y. SUPREME COURT, GENERAL TERM, whom, and by whom these payments haul FIRST DEPARTMENT.

been made, the evidence was very conThe New York Dyeing and Printing flicting. Establishment vs. Berdell.

Plaintiff introduced the deposition Decided December 6th, 1875.

taken on the preliminary examination as Defendant's admissions of debt in pre- claimed that the $20,000 was part of a

a written admission of the loan by it; and liminary examination do not conclude him under a subsequently loan formerly made to the Erie R. R. Co., amended answer from showing that some of which that company had paid

the debt never in fact existed. back, and that a balance of $20,000 had Introduction of individual's private been transferred to defendant (a former

books and papers by one side ren- director). ders them competent as evidence for This defendant denied, and asserted the other side.

that the $20,000 had been loaned to him Appeal from judgment recovered upon by Mr. Marsh, the president, individual-, a referee's report.

ly, and not by plaintiff, and offered to Complaint, Money lent.

prove this by Mr. Marsh's private checkAnswer, General denial (and payment.)

book and returned checks, and that the This action was brought to recover a

same had been paid. balance of $10,000 on two loans of $20,

0,-. This offer of defendant was refused by 000 and $11,000, which plaintiff claims to the referee, although plaintiff had introhave made to defendant.

duced in the case a part of Mr. Marsh's Defendant plead payment in full, but private books, &c. afterward amending his answer by con

The referee reported for plaintiff. sent, plead,

D. B. Eaton for respt. 1. General denial.

C. E. Tracy for applt. 2. That “defendant had paid and dis

On appeal. charged the indebtedness alleged in the Held, That defendant was not concomplaint,” and that plaintiff has received cluded by anything that he had previousfull satisfaction of all the loans and causes ly testified to, or that appeared on the of action alleged.

trial, from claiming and proving, if Under the first answer a preliminary possible, that the $20,000 in suit had, in

fact, been loaned by Mr. Marsh and not this action, The Mayor, &c., of New by plaintiff. If the proof offered had been York City, under certain statutes took received and had been sufficient, that fact private property, located in New York would have been established, and the City for the purpose of making, keeping plaintiff in that event prevented from re- and maintaining a public park, to be covering. Mr. Marsh's books had already known as Riverside Park. been introduced in the case, and were That in the proceedings instituted for competent for defendant's purpose. The such purpose, the commissioners appointproof was admissible under the amendeded to make awards for the property so answer, and should have been received. taken as aforesaid, awarded to unknown Judgment reversed and new trial ordered. owners for a plot of land owned jointly by

Opinion by Daniels, J.; Davis, P. J. plaintiff's testator and the defendant and Brady, J. concurring.

That such money awarded as aforesaid was directed by the court to be deposited with the Chamberlain of the

City of New York, and that upon the peEXECUTORS AND ADMINISTRA-tition of the defendant an order was made TORS. DEMURRER.

March 8th, 1873, directing said money to SUPREME Court, GenERAL TERM, First be paid by the Chamberlain of the city of DEPARTMENT.

New York, to the defendant, which order

was obeyed, and that on the 19th day of Michael H. Cashman, ex’or, &c., appt. November, 1873, leave was granted to this vs. Fernando Wood, respt.

plaintiff, to sue for the whole, or a portion Decided January 28, 1876.

of the award aforesaid. An executor cannot recover an award The grounds of the demurrer inter

for land of the testator taken for pub- posed to the complaint were that the same lic purposes unless it appears by the did not constitute facts sufficient to conwill that such executor had some stitute a cause of action, and that there right to the possession of the land, either as trustee under the will or was a defect of parties defendant. for purposes of administration.

A. C. & E. A. Ellis for applt. In the absence of such allegations in

Devlin, Miller and Trull for respt. the complaint, the complaint is de

Held, That the plaintiff as executor murrable for the reason that the land, could not maintain this action on the or money awarded for it, is vested ground of the power of sale contained in in the heirs at law of the testator. the will. That to entitle the executor to

Appeal from order of the Special Term recover the money, it must appear that he sustaining demurrer to the complaint. has some right to its possession, either for

The complaint sets forth the following the purposes of administration or as a facts :

trustee under the will. That Daniel Cashman departed this That the power of sale as stated in the life seized of certain premises in the com- complaint is a naked one; there are no plaint described, leaving a will by which allegations showing its objects or purplaintiff with others was appointed exe- poses, and none showing that any trust cutor. Such will gave power to his exe- is created by the will, the proper execution cutors to sell and convey any and all of of which would require that the fee of the his real estate. That letters testament- land should be invested in the executor ary were issued to plaintiff, who was the or trustee, nor are there any allegations only executor who qualified.

showing that the proceeds of a sale by the That prior to the commencement of executor are necessary for the purpose of

paying the debts of the testator in due There was no fraud of any kind on part course of administering his estate. of A in the transaction.

If the complaint contained proper allegations showing the necessity that the ered by B and the horse was not returned

The oxen were immediately after butchproceeds should come into his hands in but retained by A.

A brought suit his official character for the purpose of against B for fraud. Defendant B claimcarrying out the trusts created by the ed that plaintiff A was not entitled to will, or for the payment of debts in the

recover, inasmuch as the oxen were not course of its due execution, the executor worth as much to him as the horse was under the provisions of the will permitting really worth to plaintiff, and that therethe sale of the testator's real estate, might fore there was no damage to plaintiff. have the right to the possession of the

Judgment in favor of plaintitf for $100 money. But on the allegations, as they and costs. now stand, we must hold that the title to

Held, 1. Plaintiff was entitled to rethe real estate, and, consequently, to the cover of defendant, and that measure of money awarded therefor, is vested in the damage is difference between the actual heirs-at-law of the testator.

value of horse and what it would have Order affirmed with $10 costs, and with been worth if as represented by defendant. the usual leave for the plaintiff to amend 2. That the law gives the plaintiff upon payment of costs.

the benefit of the contract, and places her Opinion by Davis, P. J.; Brady and with respect to it, and to all her rights Daniels, J.J., concnrring.

under it, in the same position as if no fraud had been practiced upon her, and as if the horse was as sound and valuable

as she had a right from defendant's reFRAUD. MEASURE OF DAMAGE.

presentations to believe it was. CONNECTICUT SUPREME COURT OF ER

Opinion by Phelps, J.
RORS.
Agnes Murray v. Nehemiah Jennings.
Decided at January Term, 1875.

GRAND LARCENY. In exchange of chattels, if one party NEW YORK SUPREME COURT, GEN. makes false representations as to con

TERM., FIRST DEPT. dition of his property, the other in

Abrams, pltff. in error, v. The People, action for fraud is entitled to recover damages, aithough he has re

defts. in error. ceived full value for his articles. Decided January 28, 1876. Measure of damage, the difference be- To constitute larceny there must be a tween actual value and value as

felonious taking and carrying away represented.

of another's property. A owned a pair of oxen worth $100, Such taking involves trespass, or fraud,

or device in getting possession. which she exchanged with B for a horse which B represented to be perfectly

Writ of error to the General Sessions. sound, but which was foundered and The firm of W. C. Browning & Co. had liable at any time to become lame and employed Abrams for several years, to unfit for use. If horse had been as re- manufacture clothing for them. As had presented by B it would have been worth been their former custom, they sent him, at time of the exchange $225, but on ae- in May, 1875, the material for making up count of the unsoundness it was actually 138 cassimere coats. He made up the worth at the time of exchange only $125.'coats as directed. He was thereafter in.

duced, by the persuasions of a peddler, to N.Y. SUPREME COURT.—GENERAL TERM, sell them to him for $400. Of this he

FIRST DEP'T. paid $300 to the workmen, and with the

Kelly, Plaintiff in error, v. The People, residne left for California, and was there Defendants in error. arrested.

Decided January 28th, 1876. There was no evidence tending to show Possession of property fraudulently that he intended to steal or convert

obtained with felonious intent, title these goods when he received them, or remaining in owner, is larceny. that he had obtained the possession of Both possession and title so obtained is them by any trick or artifice. At the "obtaining money under false preclose of the testimony, prisoner's counsel

tenses." requested the court to direct the jury to

Error to General Sessions. acquit the prisoner on the evidence, which Complainant was met by Kelly, who Was denied.

professed to be a passenger on the steam0. L. Stewart, for pltff. in error.

er on which complainant worked, and

asked complainant's assistance in getting B. K. Phelps, for defts. in error.

some liquor aboard ship. When they On appeal, Held, That the only question reached the saloon Kelly borrowed of for consideration is, whether an acquittal complainant $50. to pay for the liquor, should not have been directed for want of at the same time leaving with him, as sesatisfactory evidence to go to the jury, el curity, five pieces of metal, which had the intent to steal.

color, size, and appearance of $20. gold Both at common law and by the pieces. Kelly told complainant to wait statutes, there must be a felonious taking five minutes while he went into the saloon to constitute larceny. It is defined by to get the liquor; then went into the our statutes to be feloniously taking, and saloon and slipped out at the back way carrying away the personal property of with the money. The supposed coin another (2 R. S., Edm. Ed. 699, $ 63), turned out to be worthless. Kelly was and such taking necessarily involves a convicted. trespass, or such fraud, or device in getting W. F. Kintzing for plaintiff in error. possession of the property, as shows that B. K. Phelps for defendants in error. it was attained without the consent of its

On appeal, owners. But the evidence in this case

Held. That there is no doubt but that showed the bailment of the property; that the prisoner intended to defraud comit was freely delivered to the prisoner plainant of his property. But still he without fraud on his part, for the purposes could not for that reason be indicted and of the bailment; and as such bailee, he convicted of a crime different from the not only had the lawful possession of the one which he had committed. The bills property, but the lien which the law gives were delivered with the owner's intention to such a bailee for the payment of the

that they should become the property of labor bestowed upon the article. We think that the court ought to have returned, but the loan was to be repaid by

the prisoner. Those bills were not to be instructed the jury that the evidence bills of a like amount. The title passed was not sufficient to justify a conviction from the owner with his consent, proof the crime of larceny.

duced, it is true, by fraudulent represenJudgment reversed; new trial granted. tations. That did not constitute the

Opinion by Davis, P. J.; Brady and crime of larceny, but of obtaining money Daniels, J. J., concurring.

under false pretenses. The distinction, though narrow, is still a material one.

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