« ForrigeFortsett »
Pace. The plaintiff produced these which they were to make thereon under papers on the trial.
their contract of assignment to Burk & When the vessel arrived, Ruger Jerons. Brothers made a claim against the de
That the ruling of the justice with fendant for a breach of the charter respect to proof of the assignment was party. That claim was submitted to ar- clearly erroneous; for unless the assignbitration, and an award was made ment appeared to have been made in against the defendant in favor of Ruger writing, it was competent to prove the Brothers of $1,750, which sum the de- parol assignment acc .mpanied by the fendant paid May 1st, 1874, to Ruger delivery of the papers. But the error Brothers, after notice to the agents of of this ruling was cured by the subsedefendant to the effect that plaintiff quent admission of testi.nony which held by assignment the original charter proved the delivery of the charter party party of the vessel, having advanced at the time of the payment of the thereon $1,000, and charges to Messrs. $1,000. Ruger Brothers & Co, on their re-char
The motion for a new trial cannot be ter of the vessel to Messrs Burk & considered as the appeal is from a judg. Jerons, requesting them to withold the
ment only. money awarded by the New York Pro
The plaintiff's right to recover against duce Exchange, and pay the same to
the defendant, depends altogether upon him.
On the trial, the Judge refused to al- the fact that the latter paid over to low plaintiff as a witness in his own be. Ruger Brothers, after sufficient notice
of plaintift's rights, the awards which half to show that the transfer and as
it is claimed belonged to plaintiff. signment of the charter party to hin
That no objection seems to have was by parol. The Justice on the trial
been made to the sufficiency of the noholding that an assignment of a written
tice. Plaintift showed a prima facie instrument, or of any interest under it,
right to recover, and it was err or to cannot be proved by parol.
The justice on the trial dismissed disiniss the complaint on the ground the complaint, on the ground that stated, and the exception to the ruling Ruger Brothers had no interest in the was well taken; for it is apparent that
whatever interest Ruger Brothers had charter; they were simply to get a
in the charter, had been assigned to and profit.
A motion was made for a new trial was held by the plaintiff upon his ad upon the minutes, which was denied, least the plaintiff was entitled to the
vance of $1,000, and presumptively at but no appeal was taken from the ord
award made to Ruger Brothers for er denying such new trial.
damages sustained by them for a breach Mann & Parsons, for applt.
of the charter. The judginent must Beebe, Wilcox & Hobbs, for respt.
be reversed and a new trial ordered Held, That the effect of the transac- with costs to abide event. tion between the plaintiff and Ruger Opinion by Davis, P. J.; Brady Brothers was evidently to transfer to and Daniels, J. J. concurring. the former all interest of the latter to the charter party, and in the profits
had in the meantimne entered their N. Y. SUPREME C URT, GENERAL TERM, names in the hotel register, as "James FIRST DEPARTMENT.
H. Baldwin and wife" He kept her
other person Megarge, applt., v. Megarge, respt. waiting for the "other Decided May, 5, 1876.
when it was getting late, she begged
him to allow her to go home, this he On a motion to set aside a judgment of
divorce because of adultery, on the refused, saying that it was necessary for ground of fraud and collusion de her to wait for this man in order to fendant's atidavit is competent, effect the divorce, that she should keep though she might not testify as to quiet, that it would not do to create a her innocence on the trial.
disturbance, and that it would be all In such a case it is proper to apply by right, that he was acting in her behalf, motion instead of by action.
and that no harin would come of it if Appeal from order setting aside she remained quiet. He tried to induce judgment in an action of divorce, and her to lie down in the bedroom adjoindirecting the payment of $150 by the ing and rest herself, which she refused plaintiff, as counsel fee for defendant in to do; but reinained sitting up all the action.
night. In the morning he unlocked The parties in this suit desiring a the door, and allowed her to go home. mutual divorce were induced to apply He had in the meantime employed two to one W. H. Gale, an attorney, who of his clerks to watch himself and assured them that he could effect the detendant, and to swear to affidavits to divorce desired the ground of the effect that they had seen defendabandonment. He was consulted by ant, on the evening of November 5, both the parties, and gave them both 1874, leave Twenty-third Street Ferry advice in the matter.
in company with a strange man, not He informed the wife (the defendant) her husband, and accompanying him to that it would be necessary for her to the Grand Union Hotel, where she releave the State for two or three days in mained in a room with him until after order to commence the proceedings, and 10.30 P.M. Shortly afterwards plainadvised that she should go to New tiff becoming suspicious of Gale, inJersey. He promised that he would structed him to stop the proceedings. meet her at the New Jersey ferry to
o Therenpon Gale had an interview give some final advice. Accordingly with defendant, and by telling her that in the afternoon of November 5, 1874, he believed plaintiff was going to leave he met her at the Twenty-third Street the country, and would probably desert Ferry, and said that it would be im her and pay her nothing for her supportant for her to first meet a certain
port, finally induced her to apply for active person who would be at the
a warrant for plaintiff's arrest, because Grand Union Hotel. She accordingly of abandonment. went with him to the hotel, and was
On plaintiff's arrest Gale tried to shown to a sitting-room up stairs, as he induce defendant to insist upon his paysaid that it would be better to be in a
ing her more than $600, the amount private parlor free from interuption. previously agreed upon for her support, On entering he locked the door, as he this she refused to do and plaintiff was said to prevent an interruption. He released.
Incensed at his arrest, plaintiff pro John R. Dos Passos, for applt. ceeded with the divorce.
Freling H. Smith, for respt. Gale informed defendant that he On appeal. would send her some papers which she Held, That defendant's affidavit was was to receive, but that it was a mere competent, for even where parties matter of form. He then served upon could not be witnesses their affidavits her the summons and complaint, which were always received upon special she next day brought down to his office motions, and even though she might without opening or reading. The now be incompetent as a witness, to the complaint alleged that defendant had same extent, upon a trial of the action, committed adultery with a man named yet that would not justi y the exclusion Baldwin on the night of November of her affidavit, on an application to set 5, 1975.
On the examination before aside a judgment, claimed to have been the referee she was instructed by fraudulently obtained against her. The Gale to say that she had no defence, objection that relief could only be oband that she had received the sum- tained by an action is invalid. The mons and complaint, and believing that courts have always intervened on the action related only to the fact of motion to vindicate their own process, her having abandoned ber husband's and proceedings against oppressive, home, as she had been told it did, she fraudulent, and collusive uses of them. told the referee that she had no detence.
A more flagrant case of professional During her absence from the referee's misconduct, duplicity, and crime coinoffice, the prepared testimony relative bined, has never been exhibited in any to her visit to the Grand Union Hotel case of this description. The judgment are given by Gale’s clerks.
was properly set aside as a cheat and a On the coming in of the referee's fraud, and the defendant allowed to report a judgment for absolute divorce contest understandingly the charge against the defendant because of adul- inade against her in the compla tery was entered.
Judgment affirmed. Defendant some time after, learn
Opinion by Daniels J.; Brady J. ing, for the first time, the nature concurring. of the judgment and of the charges made against her, applied to the
NOTARIAL CERTIFICATE. SEAL. special term, on her own and other ENDORSER'S PROMISE TO PAY. corroborative affidavits, setting out the
N. Y. COMMON PLEAs. GENERAL TERM, above, which Gale did not attempt to
Charles B. Richard and Emanuel deny, to have the judgment set aside, to be allowed to come in and defend, Boas, res pts., v. Conrad Boller, upplt. and for $150 counsel fee.
Decided May, 1876. Motion granted.
To be admissible in evidence a notary's It was urged in opposition that de certificate of protest must be under a fendant's affidavit was incompetent as seal made by an impression directly evidence on the subject of her own in upon the paper, or upon wafer, wax, nocence, and further that the relief or some similar substance, a mere imsought could be obtained only by print is not sufficient. action, and not by way of a motion to an endorser's promise to pay, after set aside the judgment.
maturity of the paper, to be binding
must be made with a full knowledge be a sufficient sealing in all cases where of all the facts.
sealing is required." In 182? the This action was brought to recover Legislature also provided “that it against the defendant as an endorser of should be lawful for certain State a foreign bill of exchange, drawn by officers to affix the proper seal by Benno Speyer, at New York, upon making an impression directly on the Mohr & Speyer, in Berlin, Germany, paper, which should be as valid as if and claimed to have been protested for made on a wafer or on wax." In 1818 non-acceptance, of which protest it was it further enacted “that in all cases also claimed the defendant had due where a seal of any court or of any notice. The protest was attempted to public officer shall be authorized or rebe proved by a notarial certificate. quired by law, the same may be affixed Upon this certificate was imprinted in by making an impression directly on blue ink, directly on the paper of the the paper as if made on a wafer or on certificate, a design or stamp of a wax;" but the Legislature further notarial seal, but the design of such
says that the foregoing provision “shall seal was not impressed on the paper not extend to private seals, which shall nor upon adhesive substance attached be made as heretofore on water, wax, to the paper. The plaintiff's having re- or some similar substance.” And in ceived said draft and alleged certificate the same year also enacted that the seal of protest from abroad, sent the same of any corporation authorized as reto the defendant, who promised to pay quired by law “may be affixed by the draft. The plaintiffs recovered in making an impression directly upon the the court below.
paper, which shall be as valid as if Charles N. Hall, for the applt. '
made on a wafer or on wax." The Edward Salomon, for the respts. clear import of these enactments is to
Held, The first question to be con- authorize the impression of the seal sidered is the sufficiency of the proof of immediately on the paper without the the demand and protest of the draft, intervention of any wafer, wax, or and this depends up on the question as to other similar substance. The impreswhether tlie design of the notarial seal sion of the seal can be made directly printed on the certificate of protest is
paper only when the design such a seal as would authorize the read- of the seal is impressed upon the paper ing in evidence of the certificate of pro. itself, and does not require any other test without further proof. It was not substance to exhibit it. In the case contended upon the argument of this
now under consideration, the seal being appeal that the certificate of protest merely an imprint of ink upon the surcould be received in evidence unless face of the paper, is neither an impressealed by the notary.
sion made directly upon the paper, as The whole course of legislation in required by our statutes, neither is it this State shows that in the absence of impression upon a wafer, wax or other statutory provisions a mere impression similar substance as required by the upon paper was not considered as a common law. Various authorities have sufficient seal. In 1815 the Legisla. been cited by the counsel for the reture enacted “that the impression of spective parties, but none of the cases the seal of any court by stamp, should seem to have any application to the
question now under consideration ex had been made, and that a proper cept the cases of the Bank of Rochester notice thereof was being given to him. v. Gray, 2 Hill, 227, and Russ v. Bedell. It is clear, therefore, that the defend5 Duer 462, and these cases sustain she ant had not full knowledge of the facts
:he view I have already suggested.
at the time of making the promise and
It seems, therefore, that it was error to
the same is not binding upon hi:n. admit the certiticate of protest, it not
Judgment must be reversed and a
new trial ordered. being under seal, and the judgment must be reversed unless the defendant
Opinion by Van Brunt, J. is bound by the promise which he made
FALSE IMPRISONMENT. DAMto pay after the maturity of the draft.
AGES. MOTIVE. EVIDENCE. Parsons on Notes and Bills, vol. I., p.
N. Y. COURT OF APPEALS. 595, lays down the rule, “that a promise to pay after inaturity with the Voltz, respt., v. Blackmar, applt. full knowledge of laches is binding on Decided March 21, 1876. the party promising without further in an action for false imprisonment proof of deinand, protest or notice," where exemplary or punitive damand, at page 601, he says, “ a mere
ages are claimed all the circum
stances connected with the transacpromise to pay is not sufficient. Plain
action tending to explain the motive tiff in each case must go further and
of defendant, are admissible in eviprove knowledge on the part of the dence. party promising of the facts.” The
This action was brought to recover certificate of protest being excluded damages for an alleged false imprisonfrom consideration for want of a pro ment, and assault and battery. It apper seal, there is no evidence in the case peared that plaintiff was the clerk of that the draft was ever presented for defendant who resided at Buffalo, and acceptance or protested for non-accept- had a power of attorney authorizing
In considering, therefore, the him to draw checks for defendant, and defendant's promise to pay we must, was conducting his business in New therefore, assume that the case is pre-York City. He had been employed at sented without any attempt to prove a fixed salary by the year, and his emdemand or protest.
to ployment ended under his contract make a demand would undoubtedly Sept. 1, 1873. Defendant wrote to be laches upon the part of the plain-him August 29, 1873, that his services tiffs, and a knowledge of such laches would not be required another year, must be had by the defendant at but expressed a desire that he should the time of making the promise in remain in New York until September order that it should be binding. The 15th. He renained until Sept 6th. evidence in this case shows, not only On the 5th without plaintiff's knowthat the defendant had no know- ledge or authority he drew $4,000 ledge of the failure of the plain- from the bank on a check signed by tiff's to make a demand, but, on the him with defendant's name, and decontrary thereof, the promise was made posited it to his own credit, taking at a time when he supposed that a pro- therefor a certificate of deposit, payper demand and protest of the draft able to his own order. He then tele.