ing his rights should be at least as fatal Defendant claimed that this was such to his claim as to that of any ordinary an infringement upon her right of exsuitor. But in tl.e enforcing of reme- clusive enjoyment and occupation of the dies of this character, depending upon dwelling portion of the building, as to the equitable powers of the court, and, amount to a constructive eviction. She to a certain extent upon its discretion, therefore surrendered the premises and it will, in general, be governed by the refused to pay rent. analogy of the statute of limitations, On the trial defendant, in order to and certainly ought not to encourage sustain her position, sought to introduce the extraordinary laches which has been plaintiff's agreement with Pike which manifested in this case.

was excluded. Order appealed from reversed, with Verdict for plaintiff. costs and disbursements to appellant. On appeal.

Opinion by Talcott, J.; Barnard, W. W. Niles for respt. P. J., concurring.

B. G. litchings for applt.

Held, That the exclusion of plainEVIDENCE. LEASE.

tiff's agreement as to the passage-way deN. Y. SUPREME Court. GENERAL TERM. stroyed the foundation of the defence, FIRST DEPARTMENT.

and no other valid reason being shown Richards, respt. v. Carlton, applt.

to the contrary, the result was a verdict

against the defendant. Decided March 31, 1876. In an action on a lease, when eviction a violation of the covenant as to quiet

It was necessary, in order to establish is set up as a defence, evidence tend ing to show that the act constituting enjoyment, for defendant to show that the eviction was done by the lessor, the act by which it was accomplished and not a third party, admissible. was that of her lessor, the plaintiff, and

Appeal from a judgment rendered on not a mere third party; that act was an the verdict of a jury.

agreement by which a part of the demise In August, 1869, plaintiff rented the was granted to another by a prior agreewhole of a certain house of one Pike, ment of her lessor. except a store in the front basement,

Exactly what the offered evidence which was reserved to said Pike. Plain- would have demonstrated does not aptiff wrote upon the lease an agreement pear, owing to its exclusion; but judgto let such tenants as might thereafier ing from the offer, it would seem to rent the store have free passage through have been possible for defendant to have the dwelling part of t.e house to the made out her case. No reason is given water closet in the rear.

for this exclusion, and none is apparent. In October, 1869, plaintiff rented the

Judgment should therefore be resame premises to defendant (the store versed and a new trial ordered. reserved as before,) but with no agree

Opinion by Brady, J.; Davis P. J. ment as to right of way to the water and Daniels, J., concurring. closet. Thereafter, certain parties rented the store of Pike, who, under plain

USURY. tiff's agreement, insisted upon and exercised the right of access to the water N. Y. SUPREME Couri, GENERAL TERM. closet.


The Real Estate Trust Company, it is not dependent upon the statutory respt. v. Thomas Keech, applt, provision which allows the recovery of Decided May 4, 1876.

usurious premiums by the debtor only, An usurious agreement to extend the if sued for in one year.

payment of a debt does not vitiate the debt or its securities ; the agreement amount by deducting the $1,000 and

Judgment should be reduced in its alone is void. The amount paid as consideration for interest, and as so modified, should be

such an agreement should be applied aflirmed. as part payment on the original debt. Opinion by Daniels, J.; Davis, P.J.,

Appeal from judgment recovered in and Brady, J..,concurring. an action to foreclose a mortgage.

Defendant, in May, 1871, executed MECHANICS' LIEN. PUBLIC a purchase money mortgage to one Jno.

PROPERTY Congdon for $19,000.

N. Y. SUPREME Courr. GEN’L TERM, In January, 1872, Congdon assigned

SECOND DEPARTMENT. it to the plaintiff. In November of 1872, defendant entered into an agree

John Leonard, applt., v. Thomas ment with the president of plaintift, Reynolds and the city of Brooklyn, imby which, in cousideration of $1,000, pleaded, etc., respts. he agreed that the payment of the debt Decided February Termn, 1876. should be extended six months. The Property held by the public for specific amount agreed upon was paid, and the public uses, is held in trust for govtime accordingly extended,

ernment purposes, and cannot be Defendant seeks to defend the action

taken by an individual for the satisto foreclose the mortgage, on the ground

faction of his private claim. that the agreement was usurious, and

Appeal from an order of the special therefore the securities given for the term, sustainining a demurrer to the original debt were void.

complaint. Wm. A. Boyd, for applt.

The plaintiff was a sub-contractor, Julien T. Davis, for respt.

under Thomas Reynolds, for labor and On appeal

materials furnished in the erection of a Held, That the original debt being certain "fire bell tower,” in the city of void, it was not affected by the usuri- Brooklyn, for the erection of which the ous agreement made for the mere ex- city had contracted with Reynolds. tension of the time for its payment. The proceeding is under the mechan

The usury simply rendered the ics’ lien law. The complaint avers that agreement of forbearance invalid, with the tower in question is owned and held out avoiding the debt or its securities. and used by the city for public purThe only effect of the agreement, and poses. The complaint seeks to estabthe $1,000 paid, or its consideration, was lish and enforce a lien on said bell towto create an equitable right in favor of er. The city of Brooklyn demurred to the defendant to have that amount ap- the complaint. The demurrer was susplied as a part payment on the mort- tained at the special term, and this

apgage debt. On the facts alleged and peal is from the order sustaining the proved, such an application should have demurrer. been made in this case. The right to James Troy, for the applt..

Jno. H. Knaebel and Wm. T. De services performed and materials furnWitt, for the respts.

ished, and for money paid and expendHeld, The property held by a munic-ed for the defendants, and at their reipality, which is a branch of the gov- quest

, in repairing the pavements of ernment, for specific public uses, is held certain streets in the city of New York, in trust for governmental purposes, and between the 1st day of June and the cannot be permitted to be taken by an 31st day of August, 1871. The comindividual for the satisfaction of his plaint alleges that the particulars of the private claim, without interfering with work perforired, and of the materials the discharge of the duties of the gov- furnished, and expenditures made by ernment, and the performance of its the plaintiff, were duly furnished by public functions. Such interference him to the Department of Public can not be permitted under color of Works, and that after said particulars general laws, intended to secure the ap. had been fully examined into by the plication of the property of a debtor to officers of said department, to each of the satisfaction of the claims of cred- the bills was attached a certificate of itors.

the Commissioner of Public Works, The order of the special term sustain- certifying the necessity of the expendiing the demurrer is affirmed.

ture and approving the account. Opinion by Talcott, J.; Barnard,

Such bills were transmitted to the P.J., and Pratt, J., concurring. Department of Finance, with the neces

sary requisition for the payment to the NEW YORK CITY. CONTRACTS plaintiff of the sums due therefor. The WITU.

defenses set up are as follows. That N. Y. SUPREME CURT, GENERAL TERM, no notice inviting bids or proposals for FIRST DEPARTMENT.

doing the work, or furnishing the maJohn B. Leverich, v. The Mayor,

terials, was ever published, nor was any Aldermen, &c., of the City of New contract made therefor as was required

by statute; that no appropriation covYork.

ering the expense of the work was Section 104, of chap. 137, of the Laws ever made; and that the necessity of

of 1870, with reference to founding the work was never certified by the contracts on sealed bids, considered and applied to a peculiar case.

heads of Department, nor the exA substantial compliance with the 534 penditure authorized or appropriated

section of the charter of New York previous to the performance thereof, City, requiring heads of departments as required by the charter. to certify to the necessity of the work, is sufficient to enable a party to re

It appeared from the evidence that cover, a just claim against the city the work which was done and for which even though there has not been a strict the materials were furnished was in reand formal compliance with the pairing holes in the street pavements statute.

all over the City of New York, and the Motion for new trial by plaintiff, on evidence tended further to show that exceptions ordered to be first heard at charges made for the labor and mateGeneral Term.

rials supplied for each separate work The plaintiff sues to recover from in no one instance exceeded the sum of the defendants a large sum for labor and five hundred dollars.

The separate

bills of the plaintiff were below that necessity of the work, still, they were amount. These bills were rendered for so substantially. For they contained each work about once every two weeks, the implication that the work directed to the Department of Public Works, had been found to be necessary. The by which they were aggregated into ac- statute (53d sec. of the charter), in this counts for repairing sundry streets, and respect, was substantially, though inthe gross amount only stated, in sums formally, complied with. varying from between three and four, Yerdict set aside, new trial ordered, to four and five thousand dollars. The costs to abide event. aggregate accounts were certified as

Opinion by Daniels, J.; Brady, J., correct by the commissioner.

concurring; Davis, P. J., dissenting. The evidence herein tended further

MARRIED WOMAN. CONTRACT. to show that complaints were made in writing, showing the necessity of these N. Y. SUPREME Court, GENERAL TERM. repairs. Some were made by citizens,

SECOND DEPARTMENT. and the others came from the Police De Gosman and another, applts., v. Eliza partment and the Board of Health. L. C. Cruger and another, respts. Upon these complaints instructions were Decided February Term, 1876. endorsed, directing the performance of In order to operate as a charge upon the necessary work, to make the repairs, her separate estate, when the engageand they were then handed to the plain ment of a FEMME COVERT is made tiff, who went on and performed what

upon a consideration in which she

or her estate has no direct interest, was so required to be done.

the intention to charge must be exRobert H. Strahan, for plaintiff and pressed in the contract which is the applt.

foundation of the charge. D. J. Dean, for deft.

Appeal from a judgment of the speHeid, That these depressions or cial term dismissing the complaint as holes in the pavements were necessarily to the defendant Eliza L. C. Cruger. disconnected, and the repairing of each The action is brought against the dewas in and of itself" a particular job,” fendant, Eliza L. C. Cruger, upon a as that phrase has been used in this sec- bond signed by her, whereby she became tion of the statute (Sec. 104, of chap. one of the sureties of Edwin R. Olcott, 137, of the Laws of 1870), and as nei- as the guardian of the plaintiffs, then ther involved an expenditure of more being minors. The special term disthan the sum of one thousand dollars, missed the complaint as to Mrs. Cruger, it was not necessary that the work re- who, it appeartd, was a married woman quired to restore or repair it should at the time of the execution of the be let by contract under the provisions bond, upon the ground of her coverof the above section of the statute. ture.

Held further, That though formally, Elihu Root, for the applts. perhaps, the endorsements upon the C. Frost, for the respts. complaints made by citizens,showing ne Held, The decision at the special cessity tor repairs, and directing the per- term was in accordance with the settled formance of the work necessary to make law of this state, as laid down in sevethe repairs, were not certificates of the ral decisions of the court of last resort,


by which it has been determined that after his decease wlo should live to atthe contract of a married woman, ex- tain the age of twenty-one years, then I cept such contracts as relate to the busi- give the same farm and hereditaments ness in which she has been engaged on unto such son and his heirs if he shall her own account, under the statute live to attain the age of twenty-one which authorizes her to carry on busi- years; but in case my said nephew ness on her own account, is void at law; should die without leaving a son who and any separate estate which she may should live to attain the said age of own at the time of making the contract, twenty-one years, then I give the aforecan be charged with liability for a debt said hereditaments, after the death of founded on such contract, only when him, my said nephew Charles Muskett, the intent to charge it is “declared in to George Muskett Eaton and his the contract which is the foundation of heirs." the charge, or when the consideration The testatrix died in 1871. is for the direct benefit of her separate Charles Muskett entered into possesestate.”

sion of the farm and hereditaments Judgment affirmed with costs. called “The Folly,” and died on the

Opinion by Talcott, J.; Pratt, J., 22d of February, 1875, having made a concurring.

will and appointed Charles Eaton, John

Thomas Muskett, and William Muskett WILL. ESTATE FOR LIFE. Elliott, executors and trustees thereof, ENGLISH HIGH COURT JUSTICE. and leaving the plaintiff, his only son, CHANCERY DIVISION.

an infant of the age of six years.

The plaintiff, by his next friend, filed Muskett v. Eaton.

his bill against George Muskett Eaton, Devise to C. M. for life, and in the

and the trustees and executors of event of his leaving a son born or to be born in due time after his decease Charles Muskett, deceased, as defendwho should live to attain the age of ants, praying that the true construction twenty-one, then to such son and his of the will might be declared. The heirs if he should live to attain only point calling for a report related to twenty-one, with remainder over:

the construction of the above-stated Held, That on the death of C. M: his

infant son took a vested estate in the devise. devised property, subject to be divest Held, The question is whether the ed if he should die under twenty- words “attain the age of twenty-one

years are part of the description of the Lucy Martin, the testatrix in the devisee, so as to bring the case within cause, by her will, dated the 21st of the rule laid down in Nesting v. Allen, March, 1866, after appointing her neph- where the gift was, in substance, a gift ew Charles Muskett, Charles Eaton, and to “such child of A. as shall attain Charles Thomas Muskett, hier executors, twenty-one.” But it cannot be so. It and giving them each a legacy, pro- is an immediate gift to the son of Charles ceeded as follows: “I give and devise Muskett, with a proviso as to his attaining to Charles Muskett, the farm and hered- the age of twenty-one years; because the itaments called 'The Folly' for his life, words are, “a lawful son born or to be and in the event of his leaving a law- born in due time after his decease;" ful son born or to be born in due time and the testatrix must be taken to have


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