it must pay

their powers may be enlarged, modified or to have been issued in pursuance of Sec. diminished at any time without their con- 1, Chap. 260, laws of 1874, certifying the sent, or even without notice.

sum necessary, and giving their consent 2. Where no regulations upon the sub- to the borrowing of said sum, and which ject are prescribed by the legislature the was presented at the next ensuing meetpresumption is, that no legislation was ing of the Board of Supervisors the lat. considered necessary, and the rule is that ter, in pursuance of the power conferred the old corporation owns all the property by $1, chap. 855, laws of 1869, and chap. within its new limits, and is responsible 260, laws of 1874, amending the same, for all debts contracted by it before the authorized and directed defendant, the act of separation was passed. Old debts supervisor of thetown of Cornwall, to bor


any claim for contri- row said sum of money upon the credit of bution, and the new subdivision has no said town, and prescribed the form of the claim to any portion of the public prop- obligation to be given, the time of maturierty except what falls within its bound-ty, rate of interest, mode of execution aries, and to all that the old corporation and negotiation, &c. Two thirds of the has no claim.

members of the board did not vote in faDecree affirmed.

vor of the resolution and defendant voOpinion by Clifford, J.

ted against it. The relators requested defendant to borrow the money as directed,

and he refused upon the ground that the SUPERVISOR. TOWN BONDS.

provisions of $2, chap. 855, laws of 1869, N. Y. COURT OF APPEALS. as amended by chap. 260, laws of 1874, People ex rel Atkinson et al, Commis- confers upon the Board of Supervisors

had not been complied with. This sec. sioner of Highways of the town of Corn. authority to provide for the use of abanwall, applts., v. Tompkins, Supr., &c., doned turnpike, plank or macadamized respt.

roads as public highways as well as the Decided February 1, 1876.

improvement of public highways, and the Section 1, Chap. 855, 0. he laws of location, erection, repairs and purchase of

1869 as amended by Chap. 260, laws bridges, and provided that the vote of two of 1874, and Sec. 2, of the former thirds of the board and that of the superas amended by the latter act, pro- visor of the town or wards affected by the vides for two separate and distinct debt to be incurred was requisite before a classes of cases. The 1,


résolution directing such a measure could ficers must meet on the first Monday be passed. This section nowhere refers in September, is merely directory.

to the preceding section or to any proA Board of Supervisors are empow- ceedings under it. The town officers are

ered to name the officer by whom town not named. bonds. to raise money for road or

Samuel IIand, for applt. bridge improvements, shall be executed.

II. Geilney, for respt. This was an application for the issuing Held, That the two sections were inof a mandamus to compel defendant, as tendel to provide for two separate and supervisor of the town of C., to issue and distinct classes of cases; Wit a two thirds negotiate certain bonds of the said town vote and the consent of the supervisor to defray the expenses of building and re-made by the town officers under the first

was not necessary when application was pairing roads. It appeared that, upon a section, and that defendant was not juscertificate of the town ofilcers purporting titied in refusing to issue the bonds.

It was provided by the first sect.on that He was, however, during this time, callthe town officers must meet on the first sed upon to take charge of certain individMonday of September. If there was no ual jurors, in addition to his services in quorum, or the board could not agree, the court, and was obliged in discharging they could then adjourn, but no such the latter duties to remain with them meeting could be held after the first Mon- through the night and during such day of Octol er. There was no meeting days as the court was not in session, for on the day named and no adjournment. which latter services he claimed an extra The meeting at which the resolution was allowance. passed was held September 24th.

The complaint was dismissed by the Held, That this provision of the statute court at circuit. was merely directory, and it was sufficient

On appeal, that a meeting was held prior to the first Roberts & Strahan, for applt. Monday of October instead of the day D. J. Dean, for respt. specified.

Held, That the services rendered were Held, also, That as the statute author- such as are always performed by the of. ized the Board of Supervisors to prescribe ficers in atto ndance when it may be deemthe form of the obligations to be issued, ed necessary, and may be required by the the name of the officer who was to exe- court, and were incidental to the plaintiff's cute them was necessarily included, and employment. the board did not exceed its powers in re But even if an extra allowance were quiring defendant to execute the bonds.

proper the courts can take no action in the Judgment of General Term reversed matter, as by law the Board of Superviand mandamus issued as directed by ord- sors must determine whether there should er of Special Term.

be any extra allowance, and if so, what Opinion by Miller, J.

amount should be allowed; and without the action of that board plaintiff can only

demand the compensation which is proCOURT OFFICER’S SALARY. vided for his attendance upon the court, N. Y. SUPREME COURT, GENERAL TER), and has no such right to any further comFIRST DEPARTMENT.

pensation as will enable him to maintien Cahill

, appt. v. The Mayor, &c., of New an action for its recovery. York, respt.

Judgment affirmed.

Opinion by Daniels, J.; Davis, P. J. As to whether Court Officers are enti- und Brady, J., concurring.

tied to extra compensation for the care of individual jurors by night and on days when the court is not

TITLE. EVIDENCE. holding, is for the Board of Super N. Y. SUPREME COURT, GENERAL TERM. visors to determine and not for the


Chadwick, respt., v. Fanner, applt. Appeal from judgment dismissing com

Decided January, 1876. plaint at Circuit.

Plaintiff had been summoned by the Parol ileclarations are ai missible as sheriff to act as court officer and consta

against an alleged vendor, anıl his

heirs and grantees, to prove that the ble in the Court of Oyer and Terminer. vendee has paid the purchase money. In obedience to the summons he attended Possession by a vendee is equivalent to the court and received the regular daily notice of a claim. allowance for such services.

Evidence. Tiarmless error.

In 1868, the defendant, John Fanner, We are of opinion that the referee erred purchased the premises in suit of the heirs in allowing the question put to the witness of one L. L. had died in 1861. The Chadwick as to the declarations of Johnland in suit is 12 acres, and Fanner's pur- son regarding the character of his posseschase was 60 acres and included the land sion. But the answer of the witness was in suit.

hardly responsive to the question and as The plaintiff, John Johnson, claims to no motion to strike out the objectionable have purchased the 12 acres in suit of L. testimony was made, the objection to the by a parol agreement of sale, and that he question may well be deemed waivi d. lived in a shanty on the land in suit for a We are satisfied that it did not affect the good many years after his purchase and result. prior to the death of L.

The error became harmless, and affords The referee found for plaintift Johnson. no just ground for reversing the judgThe main question on the trial was wheth- ment. The judgment must be affirmed er the admissions of L. after he had part- with costs. ed with his title were admissible to defeat Opinion by Gilbert, J.; Mullin, P J. the title of defendant which he acquired and Smith, J., concurring. through L. Evidence of a witness, Chadwick, was

BANKRUPTCY. EVIDENCE. received on the trial on behalf of Johnson in regard to the declarations o John- N. Y. SUPREME Court, GENERAL TERM,

FOURTH DEPARTMENT. son as to his own title and possession. Farwell & Brazee, for respt.

Ross Lewin as assignee, &c., respt. v. Lewis & Gurney, for applt.

Redfield, applt. Held. That the parol declarations of a

Decided January, 1876. vendor of land are admissible in an action. Whether there be any evidence at all by or against him, to prove that the vendee

of a fraudulent preference under

the Bankrupt Act is a question for has paid the purchase money. The dec

the court; the sufficiency of the evilarations of Locke, therefore, would have

dence is a question for the jury. been competent against him. He died The rule as to confidential communiintestate. The land in controversy de cations between attorney and client scended to his heirs, and they conveyed it

stated. to Fanner. Those declarations being evi This action was brought by plaintiff as dence against Locke in his lifetime, they assignee in bankruptcy, to recover money are since his decease, evidence against all said to have been received as a fraudulent who have derived title through or under preference under the Bankrupt act. him, with notice of the vendee's claim. It

The jury gave a verdict for plaintiff. is very true that parol declarations are in.

On the trial the curt received in evi. sufficient to destroy a man's title to land. dence a letter written to defendant's attorBut when made by a vendor against his neys, under defendant's instructions, to interest, they are sufficient to fasten a Messrs. Rowley & Parker, under defendtrust upon the legal title in favor of a ant's objection, that it was a privileged vendee, as against the grantees of such communication between attorney and deceased vendor, immediate or remote, client, &c. On the trial evidence was who took the title with notice of the given showing that the money defendant claim of the vendee, and the actual possession of the land by the vendee is in law received came from one K, and that it equivalent to actual notice of such claim was the consideration paid by Kilmer for whatever it may be.

an assignment of a mortgage, and the

witness was asked, “Who made the as Complaint.-Breach of a contract for signment ?” It was objected to as giving the sale of property and damages therefor. parol evidence of the contents of a written Answer. -Plaintiff's failure to perform instrument.

in the payment of the purchase price. Held, That there was evidence suffi After having been once or twice on the cient to warrant the court in submitting day calendar, this cause was set down perthe case to the jury. Whether there be emptorily for 13th of May, 1875, when, any evidence is a question for the court; plaintiff defaulting, complaint was diswhether this evidence is sufficient is a missed. question for the jury.

The default was afterward opened and That the letter from defendant's attor- the cause restored to the calendar. The ney, Reed, to R. & P., was not such a con- cause being reached December 15, 1875, fidential communication between attorney plaintiff sought to discontinue on payment and olient as to make the same privileged, of costs. and the rule as to a privileged communi Counsel for defendant asked for a discation similar to the one in suit could missal of the complaint, with costs and never be invoked to shield a party in vio- extra allowance. lating the law, and section 390 of the Code Complaint was dismissed with costs, has effectually abrogated whatever privi- and an allowance of $1,000. lege parties may have before enjoyed.

Geo. Bell for applt. The letter from Mr. Reed was properly

Sam'l A. Noyes for respt. received. It was written by the direction of the defendant, and it does not fall

On appeal. Held, That plaintiff clearly within the rule which excludes offers made did not intend to try the cause on the pending a treaty for a compromise.

issues raised by the pleadings, and the That the question asked witness as to complaint was therefore properly disthe Kilmer assignment was competent. It missed. did not necessarily call for the contents of The order directing the payment of an & written instruinent.

extra allowance, since it affects a substanJudgment affirmed.

tial right, is properly appealable. Opinion by Gilbert, J.; Mullen, P. J., As the Code now stands, after an and Smith, J., concurring.

answer has been interposed, the court may,

in finally disposing of the case, order an EXTRA ALLOWANCE.

extra allowance (Code, sec. 309), but the

case must appear to be both difficult and N. Y. SUPREME COURT, GENERAL TERM.

extraordinary. FIRST DEPARTMENT.

Cases of frequent occurrence which can Duncan, applt. v. Dewitt, respt. be tried without much labor or preparaDecided March 6, 1876.

tion, with the principles of which counsel Order directing payment of an extra are presumed to be familiar, do not come

allowance since it affects a substan- within this provision of the Code. tial right is appealable.

These allowances add greatly to the Extra allowance should be granted only burdens of legal proceedings and should in cases that are both difficult and be restrained, rather than extended. extraordinary

This case does not appear in any way to Appeal from order granting an extra have been either difficult or extraordinary, allowance, and from dismissal of plaintiff's and clearly is one where no extra allow-complaint.

ance should have been made.

Order directing allowance reversed, and the foundations and superstructure of the application denied.

dam. Opinion by Daniels, J.; Davis, P. J., The defendant claimed to be the owner concurring; Brady, J., concurring in 1e- of all the riparian rights on the stream sult.

between the reservoir dam and the pond

of the plaintiff's paper-mill, under a lease EASEMENT. DAMAGES. from Ann D. Miller and others; and that CONNECTICUT SUPREME COURT OF

in the exercise of his rights as such owner ERRORS.

he had built the dam complained of, for

the accumulation of water for use at his Robertson v. Wood worth.

own miil. He admitted that the plaintiff Decided March Term, 1875.

had the right to maintain and use the Where a mill-owner has a right to the reservoir dam for the purpose of accu

use of a reservoir and dam, the fee mulating water until wanted for his paper belonging to a third

person, charged with the duty of maintain mill, and also the right to draw the water ing the dam, and a riparian pro

from the reservoir pond as he hal occaprietor below erects a dam which sets sion, for the use of his mill. But he dethe water back upon the reservoir nied that the plaintiff was the owner of dam, he can recover only for the in- the reservoir dam, and introduced evijury to his easement.

dence by which he claimed to have proved A diminished benefit from the use of that the fee of the dam was in the said the reservoir, or an increase of the Ann D. Miller and the heirs of John S. cost and trouble in keeping the dam

And he in repair, or an obstruction of the Miller, the defendant's lessors. plaintiff in his right of repairing, claimed that if the fee of the dam was in would "constitute such an injury.

the Millers, the plaintiff could not reTrespass on the case; brought to the cover damages for the setting back of the Superior Court in New London county, the burden of maintaining it was on the

water against the reservoir dam, even if and tried to the jury on the general issue, before Hitchcock, J. Verdict for the plaintiff. On this part of the case the plaintiff, and motion for a new trial by the court charged the jury that if they should defendant for error in the charge of the find that the defendant, by means of his court.

dam, had caused the water to set back Upon the trial of this cause to the upon the reservoir dam in the manner jury, the plaintiff introduced evidence to

claimed by the plaintiff, the plaintiff was prove that he was the owner of a reservoir

entitled to recover damages therefor, even dam and pond situated upon a stream of though they should find the fee of the water called Alewife Brook, in the town

reservoir dam to be in the Millers, proof Waterford, and of the land covered by

vided the jury should also find that the it, together with the right and privilege of plaintiff was charged with the burden of supplying his paper mill with water from keeping it in repair. it; and that the defendant erected a per

Held, The defendart, as owner of the manent dam across the stream between servient estate, may niake the fullest use his paper-mill and the reservoir, and of his riparian rights and gain all possible thereby wrongfully and injuriously caused profits therefrom, provided he does not the water of the stream to set back upon thereby hinder, obstruct or disturb the the reservoir dam and into the stonework plaintiff in repairing and maintaining the and outlet thereof to the depth of about reservoir dam, does not increase the labor eighteen inches, and thereby endangered lor cost of such maintenance and r-para

« ForrigeFortsett »