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and not of the company, in all transac- reached Albany by the New York Centions relating to the insurance.

tral Railroad, and was delivered with a Held, That this clause was operative freight bill by its agents to defendant, to and precluded the assured from claiming be transported to New York. The freight that the company was bound by the bill contained the back charges on the knowledge of the agent, through whom cotton, the number of bales and the the policy was procured. Knowledge by marks thereon, and named the consignee an agent authorized to take application," Byron Sherman;" this was all the inof the falsity of a warranty, does not formation received by the defendant. affect its validity-20 N. Y., 56. The cotton was immediately transported Judgment of General Term, affirming to New York, arriving there December judgment in favor of plaintiff, reversed 14, 1864. Defendant changed the name and new trial granted. of the consignee to "Ryan & Sherman," Opinion by Rapallo, J. and entered it and made out its bills in that name. Not finding the supposed consignees, defendant kept the cotton until December 21st, and then stored it, and plaintiffs did not receive it until February 6th, 1865, there having been

COMMON CARRIER. NEGLIGENCE.
DAMAGES.

N. Y. COURT OF APPEALS.

Sherman et al., respts., v. The H. R. R. in the meantime, a large decline in the R. Co., applt.

Decided February 22, 1876.

A common carrier is bound to transport goods within a reasonable time, and if he negligently omits to do so, is liable for the damages occasioned thereby.

price of cotton. It appeared that Byron Sherman called about the time of the arrival of the cotton and several times afterwards at the defendant's general freight office, having with him the bills of lading which he exhibited to defendant's agents, in charge of the office, and inquired The damages, in such case, are mea- for the cotton, but could obtain no insured by the difference between the formation concerning it. The referee did value of the goods when they ought not expressly find as matters of fact that to have been delivered, and their defendant had been guilty of negligence, value at the time of their actual de- but among his conclusions of law, found livery. that defendant was guilty of negligence. The carrier is bound to give notice, or do what the law esteems equivalent to a delivery of the goods to the consignee, before he can warehouse them.

This action was brought to recover damages for the delay in the delivery of thirteen bales of cotton, alleged to have been occasioned by the negligence of defendant as a common carrier. It appeared that the cotton was shipped from C. consigned to "Byron Sherman, 41 Mercer street, New York," each bale being marked with the letters "F. B.," and these marks and the direction to the consignee were upon the shipping bill forwarded by mail to plaintiffs. The cotton

Henry N. Beach, for respt.
Samuel Hand, for applt.

Held, That the finding of negligence by referee was sufficient, that a finding of negligence is generally an inference from many facts, and when found in the referee's report must be deemed his inference from all the evidence. That the evidence warranted the referee in findin that the delay in the delivery of the cotton was caused by defendant's own negli. glence in changing the name of the consignee to "Ryan & Sherman."

A common carrier is bound to transport goods committed to him, in a reasonable time, and if he fails to do this

from mere negligence, or a plain violation tion occurred, and at the time she was in of duty and their market value falls in the employ of the defendant.

On the trial plaintiff was non-suited, on the ground that as grandfather he could not maintain the action. Hubbard & Watts for respt. N. Whiting for applt.

the meantime, the true rule of damages is the difference in the value of the goods at the time and place they should have been delivered and the time of their actual delivery. 47 N. Y., 29; 49 id, 442. He has not performed his contract as carrier unHeld, That the grandfather could maintil he has delivered, or offered to deliver, tain this action; that he stood "in loco the goods to the consignee, or done what parentis" to the infant, and the fact that the law esteems equivalent to a delivery. she had left his house and was supportIf the consignee is unknown to the car-ing herself, did not change his right to rier, a due effort to find him and give maintain the action; that plaintiff, by his notice of the arrival of the goods, is a con- adoption of the infant, and supporting dition precedent to the right to warehouse her, became practically her parent; that them, and if a reasonable and diligent by reason, also, of plaintiff's taking care effort is not made the carrier is liable for of the girl during her confinement, in the consequences. performance of the duties he had assumed, and by reason of expenses incurred, he had a ground for action against defendant. Judgment reversed.

Judgment of General Term affirming judgment for plaintiffs on report of referee, affirmed.

Opinion by Earl, J.

SEDUCTION.

Opinion by Mullin, P. J.

Smith, J., concurs in result on ground that the request of the girl's mother, that plaintiff would take and care for her,

N. Y. SUPREME COURT, GENERAL TERM, which he did, invested in plaintiff all the

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A grandfather, who took his grand-CITY COURT OF BROOKLYN-GENERAL

child in her infancy, and adopted and supported her until she was fifteen, when she left his house, and supported herself, may maintain an action for her seduction.

TERM.

Hoyt, et al., respts., v. Howe, applt. A party employing broker to sell or exchange property, is entitled to his disinterested efforts and judgment. If brokers, while so employed, bring to him a purchaser, by whom they are also employed, without disclosing such fact to former employer, it would be such a fraud as would prevent his recovering any compensation.

This is an action of seduction. The plaintiff is the grandfather of the girl seduced. The father and mother of the girl died when she was a mere infant, and the mother, before her death, requested the grandfather to, and he did afterward, take and support the girl in his family, up to the time she became fifteen years of age. She then went out to service, en- The plaintiffs are real estate brokers, joyed her own wages, and when out of and as such, had placed in their hands by employment, would stay at the house of defendant, in December, 1871, a farm for plaintiff, and made his house her home. sale or exchange. They thereafter had The girl was 18 when the alleged seduc- entrusted to them by one Lauder, certain

Appeal from judgment entered upon the report of a referee.

houses for sale or exchange. Of this de- Plaintiffs were, in the case before us, as fendant had no knowledge. They there- much the agents of the one as of the upon sought to effect an exchange be- other, and they were not the agents of tween defendant and Lauder, and for that defendant exclusively, and yet they failed purpose brought about a meeting of the to apprise defendant that the property two. Defendant was at first unwilling which they were offering him in exchange to make the exchange, but on plaintiffs' was in their hands already for sale, as representation that the houses were really brokers. more valuable than defendant supposed,

Judgment reversed, and order of referee

Opinion by McCue, J.; Neilson, Ch. J.,

RELIGIOUS COPPORATIONS.

WHEN TITLE VESTS.
N. Y. COURT OF APPEALS.
The Alexander Presbyterian Church
applt. v. Presbyterian Church cor. Fifth
Avenue and 19th street, New York, respt.

and on his advice that he had better take | vacated.
them, defendant agreed to the exchange,
and signed with Lauder the contract of concurring.
exchange. It was about this time agreed
between plaintiff and defendant, that
plaintiffs' commission should be $500.
When they came to arrange the details, it
was found that the title to two of the
houses was in the name of one McKesson,
who, however, expressed a willingness to
execute a deed to defendant, and that
there was a small mortgage upon the
same, which Lauder was seeking to re-
move. Defendant, at this point, broke off
negotiations, and refused to pay plaintiffs
their commission. The case was referred
to George H. Halsey to hear and deter-
mine, who reported in favor of plaintiffs.

S. S. & D. J. Noyes for respts.
Smith & Woodward for applt.
On appeal, Held, That the mere failure
to perfect the exchange would not relieve
defendant from paying plalntiffs' com-
mission, inasmuch as they had found for
him a party who was ready and willing to
effect the exchange on his terms.

The fact that plaintiff acted for both parties, without the knowledge or consent of the defendant, raises a different question.

The Court of Appeals, in the case of Carman v. Beach (not yet reported) held that the party employing a broker is entitled to his disinterested efforts and judgment, and if the broker brings to him a purchaser for whom also he is acting as agent, without disclosing the fact to his former employer, it would constitute such a fraud as would preclude him from recovering any compensation.

Decided February 22, 1876.

Under section 4 of the Act of 1813, providing for the incorporation of religious societies, it must appear that the property was given or granted to the societies or for its use, or no title will vest; if, from the nature of the society's holding it is apparent that the owner of the fee did not so intend, no title passes.

This action was brought to establish title of plaintiff in and to a building which had been built for a mission school and chapel, and to enjoin the defendant from interfering with its possession of the premises. It appeared that the parties were religious corporations organized under the act to provide for the, incorporation of religious societies, passed April 3, 1813, (3 Edms. Stat., 691).

The real estate in question was purchased and the church erected from funds contributed by members of defendant's corporation for the purpose of establishing and maintaining a mission church under the provisions of chap. 1 22, laws of 1850, and it was so used and occupied. Subsequently the members attending and connected with such mission-church organized plaintiff's corporation. This was

the testator, and has been approved by the majority of said legatees and next of kin.

But the cost of improvement and in. closure of burial lot will not be allowed an executor as respects objecting parties in interest.

done with defendant's consent, and the
premises were leased to the new organiza-
tion from year to at a nominal rent.
year
It claimed title under Section 4 of said
act first mentioned, which provides that
the trustees of every church, organized un-
der the act, may take into their posses-
sion and custody, all the temporalities real A
or personal, belonging to such church,
whether they have been given, granted, or
devised directly to such church or to any
other person for its use, and to receive,
hold and enjoy all churches and estates
belonging to such church in whatsoever
manner the same may have been organ-
ized or in what name held, as fully and
amply as if the right and title thereto had
been originally vested in said trustees.

Chas. P. Shaw, for applt.
S. P. Nash, for respt.

Held. That the action could not be maintained; that in order to bring a case within §4 of the act of 1813 it must appear the property has been given or granted to the society or for its use, and here the property was purchased for defendant's use, not plaintiff's.

The fact that defendant consented to the incorporation of plaintiff did not divest it of the property and vest it in plaintiff; it could consent upon such terms as it saw fit, and the fact that defendant retained possession and control of the property, leasing it to plaintiff, showed that it did not intend to vest it in plaintiff. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Per Curiam opinion.

EXECUTORS. GIFT. MONUMENT.
THE ORPHANS' COURT-PHILADELPHIA.
Estate of Andrew C. Barclay, deceased.
Decided March 18, 1876.

delivery by testator to his executor of certain money to be distributed among his servants, which was so distributed after his death, constitutes valid donationes causa mortis. Where an executor is likewise trustee he is allowed but one commision for both capacities.

Sur exceptions to auditor's report.

In addition to the usual funeral expenses the executors erected a marble monument over the grave of testator, at a cost of $1929, and enclosed the cemetery lot with curbing, at a further expense of $2,400. There were no creditors, but these expenditures were objected to on behalf of certain of the children of testator, legatees under his will. The estate was estimated at $360,000. The auditor allowed the credit claimed for the cost of the monument, but for the reasons that the improvement of the burial lot formed no part of the funeral expenses, but was upon the same footing as improvements to the other real estate, and had been made without the unanimous consent of the parties interested, he surcharged the executors with one-third of the cost, such proportion representing the shares of the children who objected to the expenditure. This conclusion of the auditor was excepted to by both the legatees and the executors. The former except to any allowance for the cost of the monument.

It was also claimed to surcharge the executors with $1100, given to one of their number by testator, to distribute among his servants after his death.

During his last illness, and but a few An executor will not be surcharged, as respects legatees and next of kin, days before his death, testator stated to with the cost of a monument over one of his sons, and also to a friend whom his testator which is reasonable, ac- he had selected as one of the executors of cords with the means and position of his will, that he had neglected to provide

for his servants, and he wished $1100 to It is the duty of an umpire to give no

be drawn out of bank and distributed among them as he directed. Arrangements were made by which the money was obtained from the bank and given tɔ one of the executors, who then said aloud to testator, in the presence of members of his family, "this eleven hundred dollars is given to me for your servants," to which the testator assented. The executor notified certain of the servants of the gifts to them, but delayed payment until after the death of testator, in the belief that the delay would insure more careful attendance upon him during his sickness. Shortly after the discease the gifts were paid.

The sixth, seventh and ninth exceptions are to the rate of commissions allowed the accountants. They are both executors and trustees.

Held, 1. That the cost of the monument, in view of the testator's circumstances, was properly allowed.

2. That the executors had no right to improve the burial lot, and were correctly surcharged with the cost.

3. That the executors held the money for the servants, and that the gifts were good as donationes causa mortis.

4. That by the act of March 17, 1834, Purdon 445, p. 197, the executors being also trustees, are entitled to but one commission.

Opinion by Hanna. J.

ARBITRATORS. AWARD.

CONNECTICUT SUPREME COURT OF

ERRORS.

tice to the parties and hear their evidence unless there is an express provision to the contrary in the submis sion or the parties have so agreed. Motion in Error to Common Pleas of Hartford County.

This action is assumpsit on a submission and award. The submission was in writing, referring the matter in dispute to two referees, with power. in case of disagreement, to appoint a third. They heard the parties in March, 1873, and did not agree upon an award. In February, 1874, they appointed a third person, who, without notice to the defendants, and without their knowledge, after conferring with the other arbitrators, published an award as sole arbitrator. The court of Common Pleas rendered judgment for the record before this court by a motion in defendants, and the plaintiff brings the

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N. Y. SUPREME COURT, GENERAL TERM. FOURTH DEPARTMENT.

Booth, applt., v. The Cleveland Rolling Mill Company, respt.

Decided January, 1876.

John Gaffy v. The Hartford Bridge Where, by the terms of a contract, a Company.

Decided February, 1875.

Where a submission to arbitration provided that each party should choose one referee, and in case they did not agree the two referees to choose a third one, the third referee is a joint arbitrator and not an umpire.

duty, though not by express covenant, is imposed on one of the parties to perform, and the other party has an interest in its performance, the law will imply a promise by the party to perform, and will sustain an action by the injured party to obtain compensation for a breach of it.

Where a contract provides one of two

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