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VOL. 2.)

MONDAY MAY 29, 1876.

[No. 16.

one.

as

NEW YORK WEEKLY DIGEST. had general charge of defendant's busi

ness; had endorsed other notes in de

fendant's name, which defendant withVILLAGE TRUSTEES. POWER out objection paid. The son lived in TO CONTRACT DEBTS.

the same house with defendant. The N. Y. SUPREME Court-GEN'L TERM. note in suit was a renewal of an old THIRD DEPARTMENT.

The note was once shown to deGamble, respt., v. Village of Wat- fendant, and he said, “I will see to it.” kins, applt,

He never repudiated any endorsements Decided May, 1876.

on this, or other notes, until his son ran

away. Village trustees have no power to con

It was also proved, under objection, tract debts for entertaining editors

that when the note was made the son visiting the village.

Appeal from a judgment in favor of signed the it and then said, “I will plaintiff, for a debt contracted in enter- go and get father's name on the back," taining a company of editors visiting and that while he was gone, witness Watkins.

heard him conversing with some one,

and that he (witness) recognized the Ileld, That the defendants had no

voice defendant's. Defendant's power to appropriate moneys for such purpose. (Hodges v. Buffalo, 2 Denio, wife negotiated one of the notes, en110.)

dorsed by the son in defendant's name. It is said that the expenditure was

There was judgment for plaintiff be

fore the referee. repaid by subsequent editorial puffs,

George N. Kennedy for applt. but it is not proper for trustees to hire Wm. C. Ruger for respt. editors for such a purpose. If it had Ireld, The referee did not find that been shown that the editors were pau- the endorsement sued on was made by pers there might have been some pro- the defendant, but did find that it was priety in keeping them from starving. made by his authority. No, direct eviJudgment reversed with costs.

dence of his authority was given on Opinion by Learned, P. J.; Bockes, the trial, nor was evidence of that kind and Boarılman, J.J., concurring.

necessary to warrant the finding. Ac

cording to the evidence given on behalf AGENCY. EVIDENCE. EXCEP

of the plaintiff, the defendant liad been TIONS.

accustomed to assume the liability of an N. Y. SUPREME Court—GENERAL TERM endorser of a promissory note where his FOURTH DEPARTMENT.

name had been written by his son, and Abel, respt., v. Seymour, applt.

he thereby adopted the endorsements Decided January, 1876.

so made.

Ile did not deny the enAuthority by a futher to a son to endorsement in this chs. until after his

dorse notes, &c., need not be erpress!! pr veld; it may be proved by son had absconded, but impliedly adimplication or custom. Ecceptions mitted his liability upon it. Such acts to evidence.

unexplained are conclusive against him. This action was on a promissory (Barber v. Gingell, 3 E-P., 60; Hartnote endorsed in defendant's name by ford Bank v. IIart, 3 Day, 191. Weed his son. It was proved that the son v. Carpenter, 10 Wend, 403 ; Butler

upon it.

was

neces

v. Stocking, 4 Seld., 408; Prescott v. The Legislature mag prescribe the forura Flinn, 9 Bing., 19.)

The evidence of proceedings in any court, such an

act would not be limiting their jurisgiven by the defendant amounted to a

diction. denial of the facts from which his assent to the acts of his son might be implied, where a first contractor fails to comand at most only raised a question of

plete the work, and it is subsequently

completed at an increased expense, fact on this point, and we are unable to

the city cannot be restrained from perceive any reasonable ground for dis

collecting the assessment until it hres turbing the conclusion of the referee sued on the contractor's bond, for

such increased expense. Several exceptions were taken to the

Appeal from order of the special admission of declarations and trans- term sustaining demurrer to the comactions with Ira B. Seymour. They plaint. were received upon the ground that

In 1868 a resolution was passed by he was the agent of the defendant the Board of Aldermen of New York in respect to the matter in contro- City authorizing the grading, curbing, versy. They had no bearing on the &c., of Seventy-seventh Street, from case whatever, unless such agency Ninth Avenue to the Beulevard, and established. It is not

the contract was given to one Moore, sary to decide whether the agency who agreed to do the work for a cerproved, included an authority to en- tain stipulated price, and gave a bond dorse notes. If it did, the evidence with sufficient sureties for the proper was competent as part of the res geste. performance of this work. In 1871 he If it did not, the evidence was wholly abandoned the work, which was afterimmaterial,' because the defendant, wards undertaken by a second connevertheless, is liable upon the ground before stated. The same remark is ap

tractor, but at an increased price. plicable to the evidence respecting the The expense of the work was asdefendant's voice. We would not, sessed upou the property along the therefore, be warranted in reversing line, including that of plaintiff. the judgment, even if the evidence was

Plaintiff

' seeks by this action to have erroneously admitted.

With respect to the conversation had this assessment vacated, on the ground with the defendant's wife, it sufficiently that the proceedings were not properly appears

that it was had at his instance advertised, and the lien discharged as a and in his behalf.

cloud upon his title. Our opinion is that the judgment

Also, that defendants be stayed from shonld be affirmed.

Opinion by Gilbert, J.; Mullin, P. further proceedirigs thereunder, until J., and Smith, J., concurring. they have prosecuted the bond of

Moore, for the increased price which ASSESSMENT. CONTRACTOR'S they were obliged to pay, because of BOND.

his failure to complete his contract, and N. Y. SUPREME COURT—Gen’L TERM. until they have applied the proceeds FIRST DEPARTMENT.

derived therefroin to reduce the entire Amos R. Eno, applt., v. The Mayor, assessment. &c., respt.

Defendants demured to the com. Decided May 5, 1876.

plaint because :

case

1. This court has no jurisdiction of by “suit or action in the nature of a the subject.

bill in equity.” 2. That the complaint does not state There is no provision in the Cona cause of action.

stution that prevents the Legislature Relying upon Lennon v. Mayor, 55 from prescribing the form in which N. Y. 366, and chap. 312 laws of remedies shall be prosecuted in this or 1874, which provides that no suit or in any other court. action in the nature of a bill of equity There seems to us to be no reason for or otherwise shall be commenced to the distinction sought to be made vacate any assessment or to remove a between this court and court of comcloud upon title, but that property mon pleas in this regard.

When the owners shall be confined in their reme- legislature simply seeks to regulate i he dies, to proceedings under the act mode of procedure in obtaining a amended. On these authorities the remedy, its powers are the same over court below sustained the demurrer. all the courts of the States. On the argument of the appeal counsel We do not think that upon the facts urged that the Act of 1874 was uncon- shown, any right of action exists by stitutional, as abridging the jurisdiction which plaintiff could compel defendof the supreme court. That the court ants to sue upon the bond of the of appeals did not really pass upon this former contractor before collecting the subject in Lennon v. Mayor, as that assessment. To allow actions of that

came froin the common pleas, character to be maintained would be to which being of inferior jurisdiction subject public improvements to delays might be limited or deprived by the and embarassments greatly prejudical Legislature of jurisdiction in cases like to the interests of the public. the one at bar; but that if the act

The objection to the demurrer, that properly governs this court still the it does not raise the question of the complaint is not demurrable since it form of the remedy does not apply. seeks a further relies not contemplated The demurrer was in the general form, by the statute, viz.: that the defend that the complaint did not

state a ant be required to prosecute the bond, cause of action that was sufficient; for and that the form of the remedy was the statute provides, that on the facts not raised by the demurrer.

that appear in the case an action canIrving Ward for the applt.

not be maintained in the form herein D. J. Dean for the respt.

adopted.

Order affirmed. On appeal

Op'nion by Davis, P. J.; Brady, Held, That this is very plainly a

and Daniels J. J. concurring. o suit or action in the nature of a bill in equity,” and is prohibited by the act

JUDGMENT. LIEN. SURETY. of 1874, if that act be valid. It is a

SUBROGATION. EQUITIES. mistake to suppose that the act deprives

N. Y. COURT CF APPEALS. this court of any jurisdiction. It simply restricts suitors to a particular form of

Barnes et al., respts., v. Mott, implid, proceeding in the court, to obtain reme- &c., applt. dies which befure may have been given Decided March 21, 1876.

A bona fide purchaser without notice, and Britton having become insolvent,

of real estate, upon which there is and Binninger having died, leaving no lien by judgment, although not technically surety for the judgment debt. assets

, an action was commenced against or, occupies a similar position, and W. and D., upon their undertaking. if the judgment is stayed by an un- They were defended by defendant dertaking on appeal, å release by the Wagner, who, in March, 1873, settled judgment creditor of the sureties on with the owners of the judgment and the undertaking on appeal, will ope- took an assignment of it to himself, and rate to discharge the judgment lien ироп

the land, und support an action obtained a discontinuance of the action to restrain a sale thereof upon exe against the securities. A day or two cution.

after, Wagner executed a release under This action was brought to restrain seal, to W. and D., releasing them from by perpetual injunction the sale of a all liability on their said undertaking, house and lot under an execution upon and assigned the judgment to defenda judgment recovered in 1864, against ant M., who had an execution issued. Britton & Binninger. Plaintiff, H. B. Addison Brown, for respt. B., is the present owner by a convey W. F. Shepard, for applt. ance from one L., in 1873, the other plaintiffs are the grantors to L. De

lleld, That plaintiffs, as successor in fendant M. holds the judgment by as

interest of Burr, Britton's grantee, signment from defendant W. It ap- the same rights and equities he would

occupied the same position, and have peared that when the judgment was

have had if he had continued recovered Britton owned the premises, and afterwards, in October, 1864, con

to own the premises; that plaintiff's veyed the:li, subject to a mortgage judgment debtor, but occupied a similar

were not technically sureties for the thereon, to one Burr, with full covenants and warranty, who paid the full position, and were entitled to the same price in ignorance of the judgment, and equities, so far as they could be admintook immediate possession. Burr died istered consistently with the rights of in 1865, having devised the property to

others; that they might, as grantees of

the land with corenants against incumhis children, who payed off the mortgage and conveyed them to L. in igno

brances, at any time, but for the stay of

appeal, have paid off the incumbrance, sance of the judgment, with full covenants and warranty, who also paid the and had their action for the full full price therefor. When the proper: 105; id., 358; 10 Wend., 142); and

annount paid (4 Mass., 627; 18 J. R., ty was conveyed to Burr, an appeal from said judgment to the general term

upon payment thereof they would have

been subrogated to all the rights of the was pending, with an undertaking staying execution. The judgment was af- judgment creditor, and to all the secufirmed October 23, 1868, an appeal was

rities he held for the payment of the taken to the court of appeals. On this judgment (Story's Eq. Jur., § 297; 8

Barb., 534; 42 N. Y., S9; 17 Ves., 12; latter appeal, the defendants, W. and D., executed an undertaking whereby

2 Vern., 608); that plaintiils succeeded all proceedings were stayed during the to the remedies the judgment creditor pendency of the appeal. The judg. would have had against the sureties upment was attirmed in January, 1973, or the appeal; that the sureties upon

the appeal having intervencd as volun- Matilda has, by certain meene conveyteers, and by their interposition got ances become vested in the plaintiffs. time for the principal debtor, to the The life estates are given by the prejudice of the prior sureties and of sevent! clause of the will. plaintiffs, they must be considered in

The sixth clause, however, provides equity as any other sureties, and their that the executors shall rent this proobligation enured to the benefit not perty, and pay from the rent so received only of the creditor, but of any and certain specified legacies. That after all who had become before them in any their payment they shall pay a third of way sureties for the payment of the such rent remaining into the three debts, and plaintiffs were entitled to children named, until all the trusts the benefit of their undertaking, and

are completed. the discharge of it withont their con

The eighth clause provides that if sent, was, in equity, a discharge of their either of said children shall die leaving property from the lien of the undertak- issne, that said isstie shall stand in their ing (1 W. & S., 155; 5 id., 352; 1 P.

parents stead taking per stirpes and not & W., (Penn.) 395; 49 Penn. St., 23;

per capita. Detendants demurred to 58 N. Y., 563; 2 Vern., 608), and they the complaint in partition on the were entitled to the relief demanded.

ground that Nicholas Cowenhaven Judgment of general term affirming being still alive the trusts mentioned in judgment of special term for plaintiffs, the sixth clause of the will were not affirmed.

yet completed, that until they were, Opinion by Allen, J.

plaintiff's could not show such an in

terest as would entitle them to proceed PARTITION.

in this action; the possession of the N. Y. SUPREME Court, General TERM.whole being in the trustees, for the FIRST DEPARTMENT.

purpose of executing the trusts. Chapman et al., respt., v. Cowen

Demurrer overruled. lioven impl’d, &c., applts.

I'm. J. Sayres for the respt. Decided May 5, 1976.

II. C. Place for the applt. An estate in fee, not subjected to any life estute, though subject to the pos

On appeal session of trustees, for the purpose

Ileld, That although by the

proof executing certain trusts, is a sutji. cient possession to uphold an action vision of the will the legal title is for partition.

vested in testatrix's children, yet the Appeal from order over-ruling de- trustees are entitled to possession under murrer to the complaint.

the sixth clause of the will as a necesOne Garretta Cowenhoven died sary incident to the carrying out of the seized of the property sought to be trust, and it would seem by the eighth partitioned by this suit, and by her clause that the testatrix intended that will devised one undivided third there- the trust should continue until the last of to each of her children, Tunis, of the three children had died. And Nicholas, and Matilda for life, re. this point is raised as an objection to mainder to their heirs. Turis and plaintiff's right to maintain the action Matilla have both died. The share of for partitio:1.

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