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LANDLORD AND TENANT. fused to rescind, defendant still held the N. Y. COURT OF APPEALS.

term and was liable for the rent. Becar, respt. v. Fleres, exr., &c.,

Judgment of general term, aflirining applt.

judgment on verdict, affirmed. Decided April 5, 1876.

Opinion by Church, Ch. J. A parol lease vests in the lessee a pres

TRUST. DELIVERY TO ent interest in the premises from the time the lease is malle. It is not an

TRUSTEE Erecutory contruct.

N. Y. SUPREME COURT. GEN’L TERM. This action was brought to recover

TWRD DEPARTMENT. rent claimed to be due. It appeared Lambert v Freeman, et al. that defendant's testator, who had been Decided May, 1876. in possession of certain premises under Where money of one is already in the a written lease, in February or March, han is of another, the owner may 1874, leased the premises by parol of create a trust with regard to such monplaintiff, by her son, for one year from

ey without further delivery to the the 1st of May thereafter. The testa

holder, provided the trust is sutji

ciently proved. tor died in April, 1874, and his family not desiring to retain the house, defend

Action to recover moneys remitted ant notified plaintiff, and on the first of by R. to F., one of the defendants, in May they abandoned possession of it 1863 and 1864, and which plaintiff and tendered the key, which was de- claimed had been given to her by R. clined. It was proved by defendant that

R. was deceased at the time of the plaintiff might have rented the house trial. The defendants are his adminisfor nearly as much as defendant's testa- trators. On the trial it was decided on

the evidence that R. created a trust in tor was to pay for it.

A verdict was directed for plaintiff. F., for the benefit of the plaintiff, the Defendant claimed that between the income to be paid her for life, and that, making of the contract and the time for subject to the trust, the principal betaking possession, the contract was ex- longed to the heirs and next of kin of

R. ecutory, and defendant having refused to perform it, plaintiff could only re

All parties appealed from the judgcover the actual damage, which within ment. the general rule, plaintiff was bound to C. S. Lester, for plaintiff. make as small as possible.

John 11. McFarland & llenry Smith,

for detts. Edwin More for respt. Wm. W. Badger for applt.

Lell, That the decision of the court Held, That the contract was not ex

below was correct, upon the facts. ecutory; that the parol lease vested in After the plaintiff rests it is too late defendant's testator a present interest

for the defendant to move to strike out in the term which was assignable before evidence. Where money of one is already entry, and upon which an action of in the hands of another, the owner may ejectinent could have been brought it create a trust with regard to such monpossession had been withheld, 1 N. Y., ey, without further delivery to the 307 ; 8 id., 115 ; and when plaintiff re

holder, provided the trust is sufficiently

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proved. The mere existence of the tember 17, 1859, the sums assumed by power to revoke or recall this trust, if the plaintiff and secured by the detendhe did not exercise it, does not prevent ant having been ascertained and agreed its validity. The defendant, F., should upon at $10,030.23, the defendant then not, up to the judgment, be charged with executed the bond in suit according to interest at any greater rate than the do- agreement of July 25, 1859, and dated nor tacitly consented that he should pay; back to that date. as, although he had invested the money A. Coburn for applt. in his own business, it was done without

N. E. Kernan for respt. objection on he part of the donor. Nor

lield, That the bond was prima should he be charged with costs up to facie evidence of the amount clairned judgment.

to be due upon it, and the burden of Judgment affirmed with costs.

proof was cast upon detendant to reOpinion by Learned, P.J.

pel such presumption.

That the agreement made and execuBOND AND MORTGAGE.

ted between these parties and IlungerN. Y. SUPREME Court. GENERAL Term. ford, July 25, previously to the actual FOURTH DEPARTMENT.

giving of the said bond and mortgage, Smith, respt. v. Smith, applt. does not affect, in the slightest degree, Decided April, 1876.

the subsequ.'nt transactions between the An agreement made prior to the bond in parties, and the giving of said bond

suit, although it refers to it, cannot and mortgage on September 17; that control it.

the transaction as to the agreement with Eetra allowance of costs are in the dis- H. and the -subsequent giving of the eretion of the lower court.

bond and mortgage were properly held This action was bronght on a bond by the referee as two independent agreein the penal sum of $12,500 and condi- ments. tioned to pay the sum of $10,950, and

The court at special term allowed also on two notes given by defendant plaintiff an extra allowance of costs, of to plaintiff.

$500. The answer, as one of the defences, sets-out an agree:nent between plaintiff allowance was a question particularly

Held, That the question of an extra and defendant and one Hungerford, directed to the discretion of the court and bearing same date as said bond, by

at special term, and this court should which H. agreed to assume and pay certain liabilities of detendant, and de- where the discretion has been abused.

not interfere except in a clear case fendant agreed to secure them separate

Judgment affirmed. ly by a bond and mortgage of $5,000

Opinion by Smith, J. to H., according to certain figures then present, and by a bond and mortgage to

BURGLARY. plaintiff for an amount not then fixed,

N. Y. COURT OF APPEALS. said papers to be executed and delivered and arrangements to be completed

McCourt, płff in error v. The People, within 15 days from that date.

defendants in error. The answer then alleges that on Sep-1 Decided April 11, 1876.

have any

In order to convict of burglary a break Samuel Iland for plff. in error.

ing and entering with a felonious in N. C. Moak for defts. in error. tent must be shown.

Ilelil, That the conviction was erThe plaintiff in error was indicted

roneous; that the evidence did not jusfor burglary and larceny, and sentenced tify an inference that the accused acted to state prison for two years. It ap- with a telonious intent; that there was peared that plaintiff

' in error, who was not only an absence of the usual indicia partially intoxicated at the time, in of a felonious taking, fraud, stratagem company with two other young men, or stealth, but all the circumstances drove up one morning between 8 and proved are consistent with the view 11 v'clock to the house of one C. where that the transaction was a trespass merehe had been in the habit of procuring

ly. cider. As the party drove up to the

That in order to convict the accused house one of them gave a call, and C., it was necessary to prove that he broke being away from home, his daughter into and entered the cellar with intent came to the door.

Plaintiff in error

to steal the cider. asked for some cider, said he would pay

Judgment of general term, affirming for it; the request was refused, and the judgment of conviction, reversed. girl told him they had none; that her

Opinion by Andrews, J. father was away and they could not

PRACTICE. The prisoner said he would have N. Y. SUPREME Court. GENERAL TERM. some, and went down into the cellar of

TurD DEPARTMENT. the house and broke a faucet uf a cider

Oliver Peake v. Calvin II. Bell. barrel and got some cider in a pail,

Decided May, 1876. which was pulled from his hand by one A verdict cannot be set aside as against of his companions and left in the cellar. evidence where the defendant has not

The cellar had double outside doors moved for non-suit nor asked the about eighteen inches apart, one open

court to direct a verdict in his favor. ing outwardly and the other inwardly, Action for conversion. The jury through which, the evidence slowed, found a verdict for the plaintiff. The the prisoner gained admission. verdict was set aside as against evi

By the breaking of the faucet a large dence. No motion was made by the quantity of cider leaked out, for which defendant at the end of the plaintiff's the prisoner and his companions after case, or of the trial, for a non-suit ; nor wards paid C.

was any motion made that the court The people gave in evidence the dec. direct a verdict for the defendant. A laration of the accused tüthe prosecutor mction was made and denied that the a short time atter the transaction upon court direct a verdict for the plaintiff. the settlement of the civil damages, in The plaintiff appeals from the order setanswer to the inquiry what his object ting aside the verdict. was in so conducting himself at the Youmans & Niles, for applt. house, that he was rum crazy.

C. II. Bell, for respt The court was requested by the lield, That a failure to move for a counsel for the accused to direct an ac- non-suit, or to ask the court to direct a quittal, and refused.

verdict for the defendant, is an adinis

sion that there is sufficient evidence to court, and will so leave unless restraingo to the jury, and that the de endant ed by order of this court. He is in the is thereby precluded from moving to Havana trade, and can readily go there, set aside the verdict as against evidence. and so avoid plaintiff' altogether. Order appealed from reversed with The writ of ne exeat was signed by costs.

the justice, and the bail fixed at $2,000. Opinion by Learned, P. J.; Buckes

The grounds upon which the motion & Boardman, J. ). concurring. to vacate the writ was made were as

follows: WRIT OF NE EXEAT.

1. The writ or paper by which the N. Y. SUPREME COURT. GENERAL TERM, defendant was arrested was void, beFIRST DEPARTMENT.

cause it is not in form of an order enterRose Viadero, respt., v. Manuel Via- ed in this action, and there is no order dero, applt.

directing such writ to issue. Decided May 26, 1876.

2. It is not in form a writ of ne creat; The practice with reference to the writ it is not issued by the clerk of the court,

of ne ereat requires the special allow- under his hand, nor is it subscribed by ance of the writ by in order of plaintifis's attorney. The court can althis court, and there should be an en- low a writ of ne exeat, but the clerk of dorsement upon the writ by the clerk, the court, not a justice thereof, issues showing the amount in which the de

the writ. tendant shoull be held to bail The liberal provisions of ss 173, 174,

3. The allegations in the complaint of the coole, with reference to amend are insufficient to sustain the writ. ment, applies to the writ of ne ereat. C. Burling, for respt.

Appeal from order denying motion Geo. Bell, for applt. to set aside a writ of ne exeat.

Ileld, As the plaintiff appears to The writ was allowed to issue upon have a meritorious cause of action, and the verified complaint in this action, she may be deprived of substantial rewhich has been brought for a divorce dress by dismissing the writ, that should because of the adultery of the defend- not be done if it can be consistently ant. The facts alleged are sufficient to sustained. And, that it may be, will constitute a good cause of action in appear from the inference which is warthe plaintiff's favor, and they are not ranted by the facts alleged. From the controverted. The facts set up in the business the defendant was engaged in complaint, eritied as an affidavit, and his interest would appear to take him which were made the basis of the writ to Havana, in case of his leaving the of ne exeat, are as follows: That de- city of New York. And that he confendant told plaintiff he intended to templated leaving is shown by his stateleave the city, and he has so told many ment to that effect, made to the of his friends; that he has no tie to plaintiff'. this city or state, and from the aban The practice prior to the Code with donment of plaintiff, and the refusal reference to the writ of ne exeat still preof defendant to do anything for the vails, and that practice requires the spesupport of plaintiit, she is satisfied he cial allowance and order of this court, intends to leave the jurisdiction of this together with an endorsement upon the

writ, by the clerk, showing the amount confirmation were the names of two in which the defendant should be held members of said common council. to bail, for the purpose of regularly is

Held, That that fuct alone does not

show that the Mayor thereby bribed suing it. In that respect the preceding

said members to vote in favor of conpractice has been continued, and is still

firming the rest of the appointments. required to be observed. (2 Barb. Chy. The appointees were confirmed by a Pr. 2 ed. 650-51; Code 469.)

single vote, and in yross. Held, the

confirmation was valid. This practice was not formally pur- At the next meeting of the common sued as it should have been in issuing council the Mayor sent in new apthe writ in this case. But its impor- pointments, in the place of the two tant requisites were, which were the ad. members of the Common Council, who judication of a justice of this court upon

had in the meanwhile refused the nom

inations, and the board thereupon the fact that the writ should be issued,

confirmed said new appointments, and determining the amount of bail to

together with those acted upon at the be required to entitle the defendant to

previous meeting, with the exception be set at liberty after his arrest.

of those refusing, by a single vote and That the informalities of the writ,

in gross. Held, That the Common

Council had not exhausted its power which have in no way prejudiced the

by the action taken at the previous defendant may be cured by amend

meeting. ment. (S$ 173, 174.)

By the charter of the city of Albany An order should therefore be made

the street commissioner is appointed by reversing the order appealed from, and

the mayor and confirmed by the comsetting aside the writ, unless within ten days after the decision of the appeal in mon council. He holds his office for in this case the plaintift shall procure been “ appointed and duly qualified.”

two ye irs, and until his successor has and cause to be entered nunc pro tunc, a formal order and allowance of the

The respondent, James Allen, was so writ, and have the endorsement upon it appointed in the year 1873, and now

claims to continue in office because, as of the amount of bail required by it

he alleges, his successor has not yet from the defendant. And in case of a compliance with this been appointed and duly qualified.”

The relator, Kilborn, cla ms the office direction, then the order appealed from should be affirmed without costs.

thus: On April 17, 1876, the then Opinion by Daniels, J.; Davis, P. J., mayor of the city, Mr. E. L. Judson,

sent to the common council a commuand Brady, J., concurring.

nication in writing, by which he nomi

mated several different officers, and upon APPOINTMENT OF PUBLIC

that list of rames was that of the reOFFICER.

lator, who was named for the office of N. Y. SUPREME COURT. ALBANY SPE

street commissioner. Among the parCIAL TERM.

ties thus nominated by the Mayor were The People ex rel. James Kilbourn v. the names of Frederick Andes and James Allen.

Peter C. Lauder, who were then AlderDecided May, 1876.

men of the city, the former being desig In a list of appointments sent by a nated for the position of Excise Con

Mayor to the Common Council for missioner, and the latter for that of City

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