« ForrigeFortsett »
The tenant's remedy in this case is to pay the rent before the order of dispossession is issued, or redeem under the statute after his removal. (Laws of 1842, p. 293.) Order reversed and injunction dis
Opinion by Davis, P. J.; Brady and Daniels, J. J., concurring.
N. Y. SUPREME COURT, GENERAL TERM, FIRST DEPARTMENT. Southwick, respt. v. First National Bank of Memphis, applt. The restriction in section 57 of Act of Congress of 1864, as amended by section 2, chapter 269 of laws of Con- This amendment as to attachment. &c., gress, 1873 (3d Session), as to issuing was probably made on account of the naattachment, execution or injunction, tional banks having become liable to atbefore final judgment against na-tachment as foreign corporations, in actional banks, does not relate to such cordance with the decisions of the courts banks as are located in other States of this State, owing to the peculiar definithan that in which the suit is brought, tion of our code (sections 227 and 247). but to those that are within such State. with an eye to the evil sought to be avoidAppeal from order made at Special Term denying motion to vacate an attached, and not that it was intended to take away the ordinary and often the only process by which an action can be brought in our State Courts against a banking association situated in another
This amendment should be construed
Plaintiff, at the beginning of this action, obtained an attachment, and under it levied upon certain moneys, in one of the New York banks, belonging to defendant.
Defendant is a national bank located and doing business in Memphis, Tennessee, and moves to vacate this attachment on the ground that it is in violation of section 57 of the National Banking Act of 1864, as amended by section 2 of chapter 269 of the laws of Congress of 1873 (3d session.)
This act as amended provides, "That suits, actions and proceedings against any association, under this act, may be had in any State, county, or municipal court in the county or city in which said association is situated, having jurisdiction in similar cases."
* * *
On appeal. Held, That it has been substantially decided by the Court of Ap peals (52 N. Y. 96), that section 57 of act of 1864, did not intend to take away the general jurisdiction of the State courts over corporations, created under the National Banking Act, wherever they may be located.
And provides further, "That no attachment, injunction or execution shall be issued against such association, or its property, before final judgment in any such suit, action or proceedings, in any State, county or municipal court."
The court below, on the authority of
We We are not asked to disregard that decision, but to hold that Congress has diction of the State Courts, in suits power, notwithstanding the general jurisagainst such banks, to enact that no attachment, &c, shall be issued before final judgment against such banks or its property, and that the amendment of 1873 to section 57 has imposed such restriction.
The prohibition is only to "any such suit, action or proceedings," and we find that the word such," so far as State, county, or municipal courts are considered, relates only to suits "in the county or city in which such association is located," and it is only "in any such suit, action or proceedings in any State, county or municipal court" that the proviso forbids the issuing of an attachment, &c. This seems the plain construction of the language used. If suits may be brought against National Banking Associations located in other States, as held in 52 Y. N. 96, then such suits may be commenced by the process of attachment.
The prohibition as to National Banking Associations located within the State may be wise and salutory, as these may be proceeded against by the ordinary personal process of our courts-but as to such as cannot be reached by personal process, Congress has left intact the remedies provided by our State laws.
Opinion by Davis, P. J; Brady and Daniels, J.J., concurring.
The plaintiff's evidence was, that, being in New Orleans in April, 1872, he went to one Vaudry, a cotton broker, who took him to Foster & Gwyn, cotton factors. From them he bought twenty-one bales of cotton, for which he paid the same day, taking a receipt (which was in evidence) dated April 13, 1872. He then returned, leaving the cotton with Foster & Gwyn, who said they would see it shipped. Vaudry afterwards, without the plaintiff's consent or knowledge, took the cotton into his own possession, shipped it to the plaintiff, and having taken to himself the bill of lading therefor, drew on the plaintiff on May 1, 1872, for nearly the whole price of the cotton. He then fraudulently endorsed the bill of lading to the bank, and attached it to the draft. The plaintiff refused to pay the draft, whereupon the bank took possession of the cotton, and stored it with the defendants, from whom it was replevied.
Gwyn (a member of the said firm of
Foster & Gwyn) being called by the plain tiff, testified that his firm had dealt in the matter with Vaudry alone, as the plaintiff's broker.
The defendants offered in evidence the following letter, as tending to show that Vaudry had authority to ship the cotton : NEW ORLEANS, April 27, 1872. Mr. Thomas Henry:
Yours of the 20th received. The reason why you have not received the bill of lading of the 21 b. c. was that the steamer for Philadelphia was full, and I could get no freight. I will ship your 21 b. c. on the steamer Liberty via Baltimore. She leaves on Thursday evening.
J. VAUDRY, Jr. Admitted under objection, and exception to the plaintiff.
The court (Hare, P. J.) charged the jury: "If you find from the evidence that Vaudry had possession of- and actually shipped the cotton, received a bill of lading therefor, and endorsed it to the bank, who took it in good faith, your verdict should be for the defendants."
Verdict for the defendants, and judgment thereon.
The plaintiff took a writ of error, assigning for error the admission of the letter, and the charge of the court.
The Louisiana statute (Revised Stats. §§ 2482, 2485) making bills of lading negotiable provides that
A bill of lading may be transferred by endorsement thereon, and that the party receiving such transfer shall be regarded as the owner of the property named in the bill, so as to secure any pledge or lien made thereof to him. Also, that "all receipts, bills of lading, vouchers, or other documents issued by any cotton-press owner, wharfinger, forwarder, or other person, boat, vessel, railroad, transportation or transfer company, as by this act provided, shall be negotiable by endorsement in blank or by special endorsement, in the same manner and to the same
effect as bills of exchange and promissory ment of a promissory note which she notes now are. signed in conjunction with her husband. A judgment was rendered in favor of the plaintiff, subjecting the property specifically to the satisfaction of the demand.
Held, 1. This case is governed by the Statute of Louisiana, where the transaction took place.
It is clear, from the evidence, that Vaudry, who shipped the goods and took the bill of lading, was in actual possession of them by delivery from the factors. His possession gave him an apparent co..tro over them, and he thus shipped them and took the bill of lading to himself. He thus had all the indicia of property or power over the goods when he endorsed the bill of lading. Under these circumstances and by the operation of the statute, he stood in a position to transfer the property in the goods to a bona fide pledgee for value and without notice.
2. The letter was a minute but not immaterial part of the res gesta, and its reception no error. Judgment affirmed.
Per curiam opinion.
MARRIED WOMAN. CHARGING
At the trial the defendant admitted that she signed the note, and testified that it was done at the request of her husband; and that she received no part of the consideration and did not know for what purpose the note was made. She was then asked what connection the note had with her separate estate, but the question was objected to by the plaintiff and the objection was sustained. She was also asked if she knew that she had a separate estate, but this question was ruled out. The further inquiry was put whether by signing the note she intended to bind her separate estate; but the court excluded the question.
The law in reference to married women binding their separate estates has been so long established in this State that it has become a rule of property and cannot now be shaken.
A married woman is incapable of making a contract except in regard to her separate property. But in reference to
SUPREME COURT OF MISSOURI. The Metropolitan Bank v. Lucy G. that she is treated as a femme sole, and if Taylor et al.
she gives a note the law implies, in the absence of proof to the contrary, that she intends to bind it. It may appear that there was no intention to bind the separate estate, but the intention must be
Decided January Term, 1876. A married woman is incapable of making a contract except in regard to her separate property, but in reference to that she is treated as a manifested from the contract itself, and femme sole; and if she gives a note, cannot be shown by parol testimony. The the law implies, in the absence of intent that the separate property should proof to the contrary, that she intends to bind her separate estate. It not be bound, to be of any importance, may appear that there was no inten- should be a part of the contract; that is tion to bind the separate estate, but to say, that the writing or contract should the intention must be manifested show on its face, when properly interfrom the contract itself and cannot preted. that no charge upon the separate be shown by parol testimony. Appeal from St. Louis Circuit.
estate was intended to be created.
The court, therefore, did not err in ruling out the testimony which was offer
This was a suit brought for the purpose of charging the separate estate of the de- ed for the purpose of showing that the fendant, Lucy G. Taylor, with the pay-defendant signed the note with an inten
tion different from that implied by law As the defendant, when she signed the note, possessed separate property, the law presumes that she intended to render that property liable for the satisfaction of the obligation, and as nothing different appears from the contract itself, the judgment should be affirmed.
is ownership under a deed executed by the widow and devisee of Dennis Harris, lated December 13th, 1868, by which she conveyed to him the street in front of Dalley's grant or the locus in quo. The disputed territory was never used as a street. It was enclosed by Dalley, although he had from his deed notice that it had been dedicated to the public use as a part of 157th street. The referee found in favor of Grinnell, and it seems, upon the propositions, that it was covered by the grant of Mrs. Harris and that there
N. Y. SUPREME COURT, GENERAL TERM had been no adverse possession by Dalley.
In the matter of the application of the Department of Public Parks to lay out a public drive from 155th street.
Opinion by Wagner, J.
Decided January 28, 1876.
No award can properly be made for
Appeal from order of referee declaring George B. Grinnell entitled to an award made to "unknown owners."
The referee found that the locus in quo had been dedicated to either public or private use as a street, and only a nominal award should have been made for it by the commissioners. The dedication of the
land as a public street was made by the grantor, through whom both disputants derive title, namely, Dennis Harris.
Josiah Parker for Grinnell.
Held, That the appropriation of the land thus made entitled the owner of the adjoining land to nominal damages only, Harris' grant was to the line of the street, and any subsequent conveyance of the bed of the street to the centre of it, or the whole of it, if owned by his grantor, would confer no right upon the grantee to demand or receive any compensation for it from the city. The language of the conveyance to Dalley constituted a dedication of the land as a street to the public use, and its employment for that purpose authorized the grant of nominal damages only.
The commissioners of estimate and assessment, for laying out a road or public drive northward from the southerly line of 155th street to the intersection of the Kingsbridge road, with Inwood street, in the City of New York, awarded for a part of the land taken for the purpose indicated, and to unknown owners the sum The commissioners made the award in of $1,547. The land formed a part of ignorance, doubtless, of the dedication, 157th street. This award was claimed on and if not of that fact certainly in ignothe one hand by George B. Grinnell, and rance of the law. This may justly be ason the other hand by John Dalley. Dal- sumed, but if not then this court ex debito ley's title was derived through a deed justitiae can correct the error into which dated December 9th, 1853, bounding the they have fallen. This power cannot be premises conveyed by the northeasterly questioned, and should always be employside of 157th street, and Grinnell asserted ed in a case like this, where the award is
general, to unknown owners, and not action brought for that purpose, been enspecific, in order to prevent a palpable joined from paying any expenditure or wrong particularly when all the parties liability incurred by said commissioners. interested, as in this matter, are before the The complaint was dismissed, it was court. said, on the authority of Maximillian v. the Mayor, 9 N. Y. Sup. Ct, Reports, 263.
Order made at Special Term should be reversed, and the proceedings remanded to the court below to be disposed of according to this opinion. No costs of this appeal to either party.
Held, That the commissioners were not independent of the city government but its agents specifically designated for a particular purpose to act in their behalf. In
Opinion by Brady, J.; Davis, P. J., the case of Maximillian v. the Mayor, the and Daniels, J., concurring.
action was to recover damages for injuries received by plaintiff's intestate by a subordinate of the board of health. Then the entire management and government
N. Y. SUPREME COURT, GENERAL TERM, was confided to the commissioners, and the court held the subordinates the agents of the commissioners, and not of the city. In this case the commissioners were to locate and erect a building for and on behalf of the city as its agents, having no corporate or continuous power. The commissioners acted for the city, and the city is liable for the expense incurred.
A motion was also made for a manda
Walter R. Wood and Charles P. Williams, applts., v. The Mayor, &c., of New York
Decided March 6, 1876. Commissioners appointed by and in pursuance of an act of the legislature for a particular purpose, viz. to erect a court-house in one of the ju dicial districts in the city of New mus and properly denied, because the remYork, and having no corporate or edy was by action. The result of the recontinuous power, are agents of the view, therefore, is that the judgment be city; and, the city is liable for ex-reversed and a new trial granted with costs penditures made by them in the pros to abide the event, and that the order ap
ecution of the work. The remedy in such case is by action, and not by mandamus.
pealed from be affirmed with $110 costs, and disbursements to be adjusted upon the termination of this action.
Opinion by Brady, J.; Davis, P. J. and Daniels, J., concurring.
Appeal from a judgment dismissing the complaint, and directing exceptions to be heard in the first instance at the general term, and from order denying a writ of mandamus.
Plaintiffs furnished materials for the
erection of a court-house in the third judicial district, upon the purchase thereof by a commissioner appointed under an act of the legislature, chap. 202, laws of 1870, and the two police justices holding court in said district, who, under said act, con
stituted a commission to build said court
house. Defense, that the appropriation for said building was wholly paid out, and expended, and that defendants had, in aut
REVIVOR AND CONTINUANCE. N. Y. SUPREME COURT, GENERal Term. FIRST DEPARTMENT.
In the matter of the last will and testament of James Foster, Jr., and the petion of Mary E. Whittlesey.
Decided March 6, 1876.
A proceeding by petition against a former trustee to open an order by which he was discharged as tru tee under the statute, on the ground of