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graphed defendant that he had drawn cognizance. Plaintiff testified that after a check for $1,000 “my account." De he had taken the papers, he said to defendant then owed him $3,000 tor bor- fendant “I shall go to Buffalo to settle

my matters." rowed money, and $800 for balance of

It appeared that the salary. Plaintiff alleged that he drew plaintiffknew that defendant was a man

of wealth, and that debts against him the check to pay for the borrowed

were collectible. The judge having money and arrears of salary due him, charged that the jury were at liberty including the whole month of Septem- to give vindictive damages, was requestber. At the time plaintift held defendants note for $3,000 for the borrowed

ed by defendant's counsel to charge

that. “ There is no justification offered money. Defendant came to New York immediately, reaching there on the 6th, of the malt-house receipts.” The court

in the case for the plaintiff's possession and fonnd plaintiit at the office, and

in reference said, “I say the private demanded that he should return the rights of these parties are not before money, which he refused to do, and the jury,” and defendant's counsel exhe therefore discharged plaintiff. The

cepted. latter went to the safe in the office and took from it an envelop containing the

Asher P. Nichols for applt. certificate of deposit for $4,000, some

John T. Hoffman, & William. II. private papers of his own and bank

Gurney for respts. vouchers, and three negotiable ware

Held, That the facts in respect to the house receipts for about 5,000 bushels taking of the warehouse receipts were of malt worth $50,000 representing proper to be considered by the jury as malt, which belonged to defendant, bearing upon the defendant's motive, held in store for him in New York, and and as the charge withdrew material deliverable on production of the re facts tending to initigate the damages ceipts indorsed by him. Plaintiff put

from the consideration of the jury, it these papers in his pocket and left the was erroneous. office. Defendant testitied that after

Where exemplary or punitive damplaintiff had gone, another clerk in. ages are claimed, all the circumstances formed him that plaintiff had taken immediately connected with the transthe receipts and papers, and this was

action tending to explain the motive of the first knowledge he had of the fact.

defendant

admissible in evi. Police officers were sent for and plain

dence. tift having returned, defendant de. Judgment of General Terın, affirmmanded the papers of him, and he re-ing order, denying a new trial, and fused to surrender them. Plaintiff tes- affirmning judgınent on verdict reversed tified that he offered to return them if and new trial ordered. defendant would receipt them to him. Opinion by Andrews, J. This was denied by defendant, Plaintiff was arrested and placed in a cell at the station house where he remained

TRUSTEE. ACCOUNTING. AS. until the next morning, when he was

SIGNMENT OF CAUSE OF AC.

TION. discharged on the ground that the matter was of civil and not of criminal N. Y. COURT OF APPEALS.

are

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Ilelms, applt., v. Goodwill, respt.

actioi.. The contract was signed in Decided March 21, 1876.

accordance with the agreement, and The period of the performance of his the premises deeded to defendant, who

duty having pussed, and there being entered into possession of one and oneno possibility of further perfor- half acres thereof and built a house mance, a trustee is bound to account thereon and occupied the same; the refor the trust estate, and is liable for mainder he inortgayed for $2,500, out any lose to it by his mis fearance or of which sum he paid the executors and

neglectful non-performance. In serh case an action for an account other debts of H., amounting in all to

Defendant did not lay ont ing will lie, although no damages $2,300. ort raud is proven.

the land in lots or sell any lots, and the An assignment of all claims, demands mortgage remaining unpaid was fore

and causes of action legal or equit closed, and the land except the one and able, passes to the assignee a right one-half acres sold thereunder. The of action for an acccounting against court upon the trial found the facts a trustce.

stated above. It also appeared that the In 1868, H., plaintiff's assignor, was land upon the foreclosure sale brought the equitable owner of thirty acres of about $600 more than the amount of land. The legal title was held by the the mortgage, as a conclusion of law executors of C., and they brought an that defendant should pay plaintiff the action to foreclose the contract of pur-' value of one and one half acres of the chase under which H. held the land, land, less the $100 already paid and the and also an action to recover the value $200 received by defendant upon the of certain personal property: H. em- mortgage, less $28.18 deficiency arising ployed defendant and bis partner J. as on the foreclosure sale which defendant his attorneys to defend said action, and was obliged to pay. they appeared and conducted the de

W. II. Henderson, for applt. fense of the same. While these actions

Frank W. Stevens, for respts. were pending H. and said executors had an accounting, and the latter agreed Heid, No error; that as it was not that if H. would pay them a certain foun,dand did not appear, that H. knew sum they would convey the land to him. that the deed was made abso'ntely to H. agreed to sign the contract of vur- the defendant with no declaration of chase to defendant, the latter agreeing the trust therein, that by that transacto take a deed of the premises and to i tion a resulting trust was created in hold them in trust for II. anil give a favor of plaintiff, 18 N. Y., 515—to mortgage to pay the executors, and lay wit: to raise money by the mortgage, out the land into village lots, and sell with the money to pay creditors, to pay enough lots to pay the mortgage, and the mortgage by a sale of the lands, convey the remainder to II.; and in con- and to pay to H. for the su, plus or resideration thereof defendant was to re- sidue, and thus the latter attained an inceive for his services, if he would build terest in the subject assigned, and dea house the con, one and one half acres fendant had an active duty to perform of the land, he paying $100 thereon by as to that interest, and the period for applying the same on a note given de- the performance of the duty having tendant's tirm for their services in said passed, and the possibility of fur

ther performance gone by, defend-by plaintiff resulting from an accident ant was bound to account for the caused by a misplaced switch. estate and liable for any loss to it by It had been once tried, and been to his misfeasance, or neglectful non-per- the Court of Appeals. formance. Quinn v. Van Pelt, 56 N. The Court of Appeals held that Y., 417 distinguished. That de- evidence offered by plaintiff as to the fendant was liable to the amount found, previous intemperance of the switchthe $200 being inoneys belonging to man, and that this previous intemperplaintiff, and the evidence warranted a ance was known to defendant's agents, finding that defendant by reasonable was competent. exertion could have sold the land so as On the present trial the same evisave the $600.

dence was offered and received, and This action could be maintained tended to show that the conduct of dealthough no damages were proven, and fendant's agent entrusted with the although the management of the estate power of employing and discharging had been correct, as a demand for an subordinate employees for detendant account of equity. It was not necessary was in this instance grossly negligent. to establish fraud.

The jury were instructed that they Also held, That an assignment by H. might give puniitive damages. Deto plaintiff of all claims, demands and fendant's connsel insisted that the quescauses of actions, legal or equitable tion of negligence was determined, and against defendant, passed to plaintiff a proved, if at all, without this evidence, right of action for an accounting in re- and the only object and tendency of the gard to the trust estate.

evidence as to previous habits was to Order of General Term, reversing inflame the minds of the jury against judgment in favor of plaintiff reversed, the defendants. and judgment affirmed.

Plaintiff had a rerdict for $7,000. Opinion by Folger, J.

Held, 1. That the evidence being ad

missible in degree no exception would EVIDENCE. EXCESSIVE DAM

lie to its reception on the ground of its AGES.

insufficient force or weight to establish

the fact of culpable negligence. The N. Y. SUPREME COURT. GEN’l Term, evidence being admissible, it was not FOURTH DEPARTMENT.

the duty of the Judge to instruct the Cleghorn, respt., vs. The N. Y. C. & jury to disregard it. H. R. R. R. Company, applt.

2. That the power to grant a new Decided January, 1876.

trial on the ground of the excessiveness Evidenee that defendant's agent know- of damages is possessed, but rarely exer

ingly employed a switchman who was cised by the Court, and plaintiff's inintemperate and incompetent is ad- juries having been severe and having missible on question of positive disabled her for many months and may puniitive damages. Courts rarely be permanently, the verdict should not exercise this right to grant a new

be disturbed. trial on the ground of excessive damages.

Judgment affirmed.

Opinion by Smith J.; Mullen, P. This action was for damages received J., and Gilbert J., concurring.

PARTNERSHIP SETTLEMENT. except upon clearly proved allegations
N. Y. SUPREME COURT. GEN. TERM. of fraud or mistake.
FOURTH DEPARTMENT.

That the presumption in all such Augsbury applt. v. Flower, respt.

cases is in favor of the correctness of Decided January, 1876.

the accounts, and that the parties were Where partners have settled and liqui- possessed of ordinary capacity and indated their accounts Courts of Equity telligence, and competent to take care will not open them except upon of their own interests. clearly proved allegations of fraud

If palpable errors are charged and or mistake,

proved, errors which are clearly the This action is an equitable one to

result of imposition, mistake or fraud, settle partnership accounts.

the account may be so far opened as to The parties in Oct. 1859 engaged in

correct such mistake or error. The the purchase and sale of butter, and

burthen is on the parties alleging the during that Fall sent to New York and

error to prove it. Boston a large quantity of butter pur

The plaintiff having failed to show chased principally with moneys borrowed for that purpose on drafts upon the accounts and settlement, the judg that there was any fraud or mistake in

. their consignees and promissory notes

ment of the referee is right, and must, discounted at county banks upon their

therefore, be affirmed. joint crcdit and responsibility. The referee found that in February,

Judgment affirmed. 1861, the parties met for a settlement Opinion by Smith J.; Mullin P. J. of their transactions, and that on this and Gilbert J.,

concurring. occasion the defendant stated the loss of the partnership at about $4,000, and TESTAMENTARY CAPACITY. also at this time sold and conveyed INQUISITION LUNACY. EVIreal estate to plaintiff, and gave other

DENCE. security to pay his proportion of such

N. Y. SUPREME COURT, GENERAL TERY, loss, and the plaintiff then assented to

FOURTH DEPARTMENT. pay the debts of the firm, and released the defendant from such debts as were

Decided January 1876. specified in a certain receipt.

Searles et al, Executors, applt. v HarThe referee also found that when this vey and others, respts. arrangement or settlement was made In proceeding to have a will admitted or entered into the plaintiff knew, to probate, an inquisition of lunacy or - was in a situation to know, what previously found raises a presump

; amount the defendant had paid on the

tion of testator's incapacity, which

it requires some evidence to overpartnership debts, and as there was no direct proof of mistake or fraud he dis

This is an appeal from an order of missed the complaint.

the Surrogate of Jefferson County, reL. J. Dorwin, for the applt.

fusing to admit a will to probate. B. Winslow, for the respt. Held, That where parties have settled

The appellants are executors. and liquidated their accounts courts of Prior to testator's death, and on or equity will not interfere to open them, | about January 1873, an inquisition of

come.

com

lunacy was found, and such inquisition dissolved. The defendants then defound, that at its date, and for more inurred to the complaint. The demurthan two years then last past, testator rer was brought on for argument at was of unsound mind and incapable of special term and overruled. The plaindoing business. This date took his in- tiff duly appealed from the order discapacity back to a time prior to the ex- solving the injunction, and the decution of the will in question.

fendants duly appealed from the order J. Mullen Jr., for applt.

overruling the demurrer. Hubbard & Watts for respt.

Both appeals were brought on for lleld, That such inquisition is not argument together. conclusive evidence of the incapacity of Robert, for plaintiff's. the testator to make a will. It is only

lliscock, Gifford & Dohenij, for de. presumptive evidence of such incapaci. fendants. ty, but some evidence is necessary to

Held, 1, It is the settled doctrine of overcome such presumption. The evid- the Courts of Equity that deeds and ence given on the hearing before the other contracts fraudulently obtained Surrogate was insufficient for this pur- may be set aside or ordered to be depose.

livered up and cancelled. T.e Order of Surrogate reversed.

plaint in this action set up a proper Opinion by Smith j.; Mullen P.J. case for the exercise of the equitable and Gilbert J. concurring.

power of the court, and the demurrer to said complaint was properly over

ruled and the order should be affirmed. INJUNCTION. FRAUD.

2. The order dissolving the injuncN. Y. SUPREME Cour'ı. GENERAL TERM. tion was doubtless granted upon the FOURTH DEPARTMENT.

assumption that the plaintiff had a The Globe Mu. L. Ins. Co., respt., v proper remedy at law, and that the Reals et al, applts.

complaint did not in this view state Decided January, 1876.

facts sufficient to constitute a cause of Equity may decree the delivery up action. . and cancellation of deeds and other

The decision upon the demurrer dis writings procured by fraud, and will enjoin their transfer or dispo- affirms this view of the law of the case, sition pending the suit.

and involves a reversal of the order disThis is an action in equity to set solving the injunction and a restitution aside a policy of insurance upon the or revival of the same.

The order dissolving the injunction ground that its possession was obtained

should therefore be reversed and the inAt the commencement of the action junction restored, with costs of the apan injunction was granted restraining peal and the order overruling the dethe defendant from transterring the murrer should be attirmed, with costs policy, with an order that the detend- of the appeal. ants show cause why such injunction Opinion by Smith, J.; Mullin, P. J., should not be continued. On the re- and Gilbert, J., concurring. turn of the order the injunction was

by frand.

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