R. II. Rosa, for applt.

ble upon proof of some fault or neglect Farkhurst & Baker, for respt. on their part, either in the construction

Held, That there seems to be no of the sewer or in keeping it in proper question of law. The court cannot re- repair ; that in order t) recover plainview a question of fact on such contra- tiff was bound to show a neglect by dedictory evidence.

fendants to remove the obstruction afOpinion by Learned, P. J.

ter notice of its existence, or some omission of duty on the part of the city of

ticers in lo king after it and seeing that MUNICIPAL CORPORATIONS.

no obstriction occurred. LIABILITY OF.

Also held, That the city does not inN. Y. COURT OF APPEALS. sure citizens against damage from Smith, applt. v. The Mayor, &c., of works of its construction, but is only New York, respt.

liable as other proprietors for negligence

or willful misconduct- 37 Barb. 292; Decided May 30, 1876.

36 N. Y.51; 5 Seld. 456; 15 N. Y. 194; A municipal corporation does not in- 59 Id. 500.

sure citizens against damage from works of its construction, but is only ing judgment in favor of detendant af

Judgment of General Term, affirmconduct.

firmed. This action was brought to recover

Opinion by Allen, J. damages sustained by plaintiff by reason of the stoppage and overflow of one

ADMINISTRATORS. SUITS BY. of defendant's sewers. The referee found that the overflow N. Y. SUPREME Court. GEN! TERM,

FOURTH DEPARTMENT. was caused by a stoppage of the sewer with sand and dirt washed in from the Nichols, respt., v. Smith, applt. street, and that at or just before the Decided April, 1876. flooding of plaintiff's premises there was On a judgment recovered in a foreign an unusually heavy shower of rain. country the administrators of the There was no proof of obstruc

deceased julgment creditor

any struction before that time, and there

maintain in action in their own

names in this State. was no evidence or finding that the sewer was liable to become obstructed

Appeal from an order sustaining a

demurer. under ordinary circumstances so as to require the watch and care of the offi.

In 1872, one Samuel Dixon, residing cials, or that it had been obstructed for

in Canada, recovered in that country a

judgment against defendants. a tine and under circumstances from

Plaintiffs are the administrators of which it might be assumed that the officers of the city knew or ought to have this state on such judgment. The com

Dixon, and commenced this action in known of the obstruction.

plaint stated that Dixon had no crediHenry Parsons, for applt.

tors in this State. D. J. Dean, for respts.

Defendants demurred that the comHeld, That defendants were not lia- plaint did not state facts sufficient to

that they could only be made lia constitute a cause of action, and that

creditor may




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plaintiffs did not have legal capacity to ness. In 1868, said L. desiring to make

reparation for this injury, and as he did The demurrer was sustained. not want her to be disgraced or become John H. White, for applt.

a woman of the town, assisted her in Rhodes & Richardson, for respt.

the purchase of the premises in quesHeld, That plaintiffs may maintain tion. The deeds were executed and this action in this State in their delivered. L. paid the purchase money,

The title to the judg- saying that $1800 of it were the carnment was absolutely in them and ings of defendant, and the rest a loan, may be prosecuted here. The judg- for which he took her judgment bond,

which ment is to be used on this trial to show was afterwards surrendered to

her and cancelled without payment. and establish their title, and the amount

L. and F. continued their illicit inthey are entitled to recover, There is no reason why a recovery

tercourse until 1871, when a judgment may not be had in this case in the indi- was obtained against L. and the preinvidual names of plaintiffs as well as in ises levied upon and sold by the sheriff an action on a promissory note or other as his property to one Koch, under chose in action.

whom the plaintiff's wife shows title. Order reversed.

On the trial the court charged the Opinion by Noxon, J.

jury that if they shonld find that the purchase money was paid by L., then

a resulting trust would be created in his EXECUTED CONTRACT. IM

favor, which could only be defeated by MORAL CONSIDERATION.

the declarations and acts of the parties SUPREME COURT OF PENNSYLVANIA.

accompanying the transaction. And Fasig, plff. in error, v. Levan et ux. the court further charged : defts. in error.

“In the absence of precedent we are Decided March 10, 1876.

to decide this case upon the well-known Although an action cannot be main-principle of law, that an iminoral con

tained upon an executory contract, sideration will never support a contract; the consideration of which is immor. to hold this title to be valid in Mary A. al ; when the contract has been ex- F., under the evidence in this case, the ecuted, the law will not restore them to their former condition.

court and jury would but set a pre

mium on immorality and enc urage inError to the Common Pleas of Berks

fidelity to the marriage relations." county. Ejectinent by L. and wife to the use from which the defendant took this

There was a judgment for plaintiffs, of the wife against Mary F. for a dwel

writ of error. ling-house and lot of grouud in Read

Held, That there is nothing in the in .

case to show a resulting trust; that the Mary F., the defendant, in 1866, was

purchase money was a gift from L. to an employee of L., the plaintiff, by

defendant. whom she was seduced, and who, after

That the doctrine that “An immorwards, during her pregnancy, caused

al consideration will not support a conher to submit to an operation for abor-tract,” does not apply to this case The tion which produced a dangerous ill. I defendant is not seeking to enforce such

a contract. If any contract existed, it him to come and get it when he pleased, was fully executed.

and that it was all understood, and This is a case of a man who has wrong- plaintiff replied he would g. t it in ed a woman, wl., has made her a com- good sleighing, &c. This testimony pensation for that injury, and who now was contirined by one of plaintiff's seeks to recover it back. In this the witnesses, and also denied by defendlaw will not help him.

ants and others. Judgment reversed, and a venire fa Finally defendants refused to give cias de novo awarded.

plaintiff any of the lumber, and this Opinion by Parson, J.

action was brought.

On the trial at the circuit plaintiff

was non-suited on the ground that he WEIGHT OF EVIDENCE.

had made no case. NON-SUIT.

J. B. Emmons, for applt.

E. S. Merrille, for respt.

Held, That the nonsuit was error. Hodgkins, applt. v. Van Amber, et. A non-suit should only be directed al., respts.

where the evidence on either side is so Decided April, 1876.

clear and undisputed that a verdict in A non-suit should only be ordered conflict with it would not be sustained. where the evidence on either side is

'Phat the question of fact in the case 80 clear and undisputed that a vir was a disputed one, and on a motion dict in conflict with it could not be

for a non-suit all the disputed facts sustained. On a motion for a non suit all dis- must be decided in favor of plaintiff,

puted facts are to be decided in fa- and this the court could not do. vor of plaintiff.

Judgment reversed. Appeal from a judgment at circuit. Opinion by Noxon, J.

This action was brought to recover a quantity of lumber claimed to be the

FIRE INSURANCE. WAIVER OF property of the plaintiff.

CONDITION. One G. purchased of defendants 10,

N. Y. COURT OF APPEALS. 000 feet of spruce lumber. Plaintifts

purchased of G. the lumber he bought of Church, applt., v. The Lafayette Fire defendants and paid him for the same. Insurance Co., of Brooklyn, respt. About the time of this sale by G. to Decided May 23, 1876. plaintiff, they saw Van A., one of de Payment of the premium at the time of fendants, who stated that G had 10,000 making a contract of insurance is teet of lumber at their mill. Plaintiff not necessary to bind the company; then asked Van A. if he would just as

and if a credit is given by the agent, soon deliver it to him as to Gates, and an agent may waive such payment and

the contract is equally obligatory. he said he would. G. then told Van

give such credit. A. to deliver the lumber to plaintiff and The question of waiver is for the jury Van A. agreed.

to determine. Plaintiff and Van A. also had other This was an action upon a policy of conversations in which Van A. told fire insurace. The cvidence showed a

prior dealing of plaintiff

' with defend-Plaintiff's counsel requested the court ant for many years, and that he was in to submit the whole case to the jury the habit of getting policies without whether or no there was a contract. paying the premium at the time; that The court refused to do so. He also plaintiff, on Sept. 6, 1871, called at the requested the court to submit to the company's office to get the property in jury the question whether or no defendquestion insured, saw defendant's sec ant had not given plaintiff credit on the retary, and tried to have the old rate policy in question. The court refused reduced, which the secretary refused to to do this, and nonsuited the plaintiff. do, and plaintiff then replied, “ Very N. C. Moak, for applt. well, I inust have it insured.” The

Philip S. Crooke, for respt. next day defendant made out the policy

Held error. That the fact that deby which it insured the building from fendant had on former occasions given September 6th. Plaintiit called again plaintiff

' credit for premiums was for on the 9th, and asked the secretary if the jury to consider on the question of he had taken the building; he replied waiver of the condition in the policy. he had at the old price. Plaintiff made 59 N. Y., 521; 26 Id., 463. That the no objection, and no further conversa evidence was sufficient to leave to the tion took place. On October 16, 1871, consideration of the jury the question plaintiff again called to obtain insur- whether a credit was not intended to be ance upon other property. The secre- given, and payment of the premium tary was not in, but the plaintiff stated when the policy issued waived, and conto defendant's clerk that he had another sidering the circumstances and previous policy, and would pay for the two to dealings of the parties, it could not be gether, and the clerk replied “Very held as matter of law that there was no well."' Plaintiff did not call again in- waiver and no credit given. til November 8th, after the fire, which

Payment of the premium at the t'me took place No: ember 7th. He inform of making a contract of insurance is not ed the secretary of the loss, and offered

necessary to bind the company, and if to pay for the two policies, but the sec

a credit be given by the agent it is retary refused to take anything on the equally obligatory. 59 N. Y., 171. An policy in suit, stating that defendant was not liable because the house was give such credit. 35 N. Y., 131; 26

agent may waive such a condition and unoccupied. A few days after the

Id., 460. plaintiff' paid the premium upon the

Judgment of General Term affirmsecond policy from its original date, ing judgment of nonsuit, reversed and which was accepted. At the close of

new trial granted. plaintiff's evidence defendant's counsel !! oved for a nonsuit on the grounds, Opinion by Miller, J. that there was no evidence of

RAILROAD COMPANIES. LIAtract of insurance, and that if a con

BILITY FOR ANIMALS KILLtract was proved it was the contract in

ED AT CROSSING. the written policy, and it never became

SUPREME COURT OF MISSOURI. binding on defendant because the policy provided that it should not be bind IIolman v. The Chicago, Rock Ising until the premium was actually paid. land & Pacific Railroad Co.

any con

Decided May, 1876.

to give the required signal, and the killIn an action against a railroad com- ing. No fact tending to connect the

pany for killing an animal at a two was shown. crossing, it is not sufficient to show

Judgment reversed, and cause rethat the employees of the company

manded. neglected to ring the bell or sound the whistle in order to authorize a ver Opinion by Hough, J.; Wagner, C. dict against the company, but it must J., and Napton and Sherwood, J.J., also be shown that such negligence concurring. caused the damage.

This was an action to recover dam SERVICE OF SUMMONS BY ages for the killing of a cow belonging

PUBLICATION. to the plaintiff, by a train on detend

N. Y. SUPREME COURT. GEN'L TERM, ant's railroad, in a street of the town of


In the matter of the application On the trial plaintiff introduced tes

of the Atlantic Giant Powder timony to show that the bell was not rung, nor the whistle blown, as the train Company and the Giant Powder approached and ran over the cow.

Company to vacate and set aside Defendant introduced one Riley, the

an order directing service by the conductor of the train, who testified

pubiication of the summons in that the bell was rung and the whistle

an action brought by Israel IIall sounded.

and others against the Atlantic There was a verdict and judgment

Giant Powder Company and

others. for plaintift, from which defendant appealed.

Decided May 26, 1876. lield, That conceding that the serv- An order directing service of summons ants of defendant neglected to ring the

by publication against a non-resident the bell or sound the whistle, the ques

corporation will be sustained under

$135 of the Code, when the subject of tion is, whether there is any evidence

the action is personal property, withtending to show that the cow was killed

in the State, and the transactions in by reason of such neglect; that there controversy took place here, and the is no necessary connection between the cause of action arose here. failure to ring the bell, or sound the Appeal from order denying motion whistle, and the killing; that both may of the Atlantic Giant Powder Company concur in point of time, and the latter and the Giant Powder Company to set not be the result of the former (58 Mo., aside order directing publication of 503); that the connection must be prov- summons and service of summons by ed by the party alleging its existence. publication. All the facts and circumstances attend The action in which the order directing the killing should be shown, so that ing the service by publication was made the jury may rationally conclude wheth- was an action brought by Israel Hall er it resulted from such negligence or and others, against T. P. Shaffner, the from other causes.

Atlantic Giant Powder Company, the In the case at bar no such evidence United States Blasting Oil Company was offered. But two facts were shown and others, by the plaintiff's as stockto fix defendant's liability; the failure holders of the U. S. Blasting Oil Com.

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