« ForrigeFortsett »
letters testamentary, administration, or want of jurisdiction on the part of such guardianship.
Surrogate, except in the manner and It is claimed by counsel for the peti- for the causes that the same could be tioner, that it is the duty of the Surro- impeached or invalidated, if made purgate under Sec. 30, 2d Revised Stat- suant to the order of a court of original utes, page 109, to confirm the report of general jurisdiction. sale in this matter, because it appears The second section provides that to have been legally and fairly con- such sale shall not be invalidated or ducted, &c., but in order to determine impeached for any omission in any peunder that section whether the sale tition for such sale, provided it shall has been legally made, it becomes substantially show that an inventory necessary primarily to enquire whether has been filed, and that there are debts jurisdiction was obtained of the sub- which the personal estate is insufficient ject matter and of the parties inter- to discharge, and that recourse is neces ested by the petition and order to show sary to the real estate. cause and the service thereof.
The third section provides that such It is clear that the petition does not sale shall not be invalidated by reason conform to the 4th subdivision of Sec-of an irregularity in any matter or protion 2, 2d Revised Statutes, 104. That ceeding after the presentation of any section prescribes, as it seems to me, the petition, and the giving notice of the facts that are necessary to be inserted order to show cause, &c., and this proin order to obtain jurisdiction: the vision is substantially preserved in the language of the section is “Petition several acts amending the 3d Section. shall set forth," and the omission of It is also claimed by said counsel that any of its requirements fails to secure Section 1 of Chapter 359 of the Laws jurisdiction.
of 1870, precludes the purchaser from It cannot be denied that the petition objecting to the completion of his purin this matter was defective in the par-chase because he has not appealed, or ticulars above referred to, and if the taken proceedings to set aside, open, requirements of the Statute, prescribing vacate, or modify the proceedings in what the petition shall contain, may be this matter, and several authorities are disregarded in one particular, it may cited to sustain this view. be in all, but it is urged by the peti The case of Forbes v. Halsey is cited tioner's counsel that under the act of as authority for the doctrine that no 1850, Chapter 82, Sections 1, 2 and 3 sale shall be invalidated by reason of and the amendments of Section 3 by any irregularity occurring after the Chapter 260 of the Laws of 1869, and presentation of the petition, but that 92 of the Laws of 1872, the objections was a case of ejectment, and clearly referred to are cured.
within the provision of the act of 1850. By section 1 of the act of 1850, it is The learned counsel has evidently provided that the title of any purchaser failed to appreciate the object of that at any such sale, made in good faith, act, when he seeks to make sections 1, shall not be impeached or invalidated 2 and 3 of that act applicable to proby reason of any omission, error, defect ceedings before the Surrogate, and gives or irregularity of the proceeding before no furce to section 4, which seems to be the Surrogate, or by any allegation of the only section affecting the Surrogate,
and one which specifically provides that make the order of sale, it is not perhaps he shall not confirm any such sale, un- necessary that I should consider the less, upon due examination, he shall be other questions involved in this matter, satisfied that the provisions of said title but it may be proper to state that after have been complied with, as if this act the Surrogate acquires jurisdiction, any had not been passed, showing conclus- other proceedings required by the staive y that the act in question was not tute, that may have been omitted in intended to relieve the Surrogate from the progress of the proceedings, might strict conformity to the Revised Stat- be supplied by being taken nunc proutes, but only to throw such guard tunc, such as the proof and adjudication around the purchaser, by presumptions of claims, the entry of the order for of regularity, after the Surrogate has sale, the execution and approval of the acted.
bond, as this court possesses the same anI think the act of 1870, in its 1st thority as other tribunals to remedy and section, does not contemplate any limi- correct errors or mistakes in the course tation of the strict requirement of the of proceedings, in cases where jurisdicRevised Statutes in conducting such tion has been regularly acquired. proceedings, and are not applicable to See Farrington v. King, above cited, such proceedings pending before that at page 191. officer ; otherwise it would nullify the For the defective character of the 4th section of the act of 1850. I am petition in this matter, the motion to therefore of the opinion that the sever-confirm the sale must be denied. al acts referred to do not relieve the Surrogate from strict conformity to the CHARGING SEPARATE ESTATE. Revised Statutes in respects to all the
N. Y. SUPREME COURT. GENERAL TERM. proceedings required by their provis
FIRST DEPARTMENT. ions, and that it is my duty to recognize and act upon any objection of ir
John G. C. Todicker, respt. v. Mary regularity as well as of jurisdiction, on A. Cantrell, applt. this hearing
Decided May 1, 1876. And as I am not satisfied that the Insertion in note of married woman, provisions of the Revised Statutes in after its execution, of words mukrespect to the sale and disposition ing it binding on her separate estate, of the real estate of the intestate
if authorized by her, is valid. have been complied with, I should re Appeal from judgment entered on fuse to confirin the report of sale. verdict of a jury. Ackley v. Dygert, 33 Barb. 176; Far
Defendant, who is a married woman, rington v. King, 1 Brad. 182; Wood v. applied to one of her tenants, (ne McChesney, 40 Barb. 417.
Harms, for a loan, and he being unable It is well settled upon authority that to furnish it, she asked him if he knew any recitals of jurisdiction in any of any one who would, agreeing to pay the orders of the former Surrogate him a bonus if he would get the loan cannot affect the question of jurisdic for her. tion. See Sidley v. Waffle, 16 N. Y. He called upon plaintiff, who loaned 189. Having reached the conclusion the amount desired, $700, taking dethat there is a defect of jurisdiction to fendant's notes therefor. These notes
Harms endorsed at the time of making, ACCIDENTAL INSURANCE. and was paid by defendant $45 as a bo N. Y. COURT OF APPEALS.
Shader, adm’r, &c., applt., v. The When the notes were given, as al. Railway Passenger Assurance Co. of leged by plaintiff, he said that he would Hartford, respt. see his counsel, and if there was any
Decided June 20, 1876. change in their form necessary he would where a policy of accidental insurance make it, to which defendant assented, contains a provision that “no claim and thereafter was added : “I hereby shall be made * * where the death charge my separate estate with the pay or injury may have happened while ment of the above."
the insured was, or in consequence of Defendant denied that she had au
his having been under the influence thorized the change, and alleged that
of intoxicating drinks,” and the in.
sured, while in that state, was shot, the bonus of $45 had been given plain Held, that the limitation related to tiff, and that the notes were therefore his condition, not to the cause which usurious.
might produce his death. Both the question of authority to
It was not essential to work a forfeit inake the change and of usury were put
ure that the injury or death shoula
occur in consequence of the use of to the jury, which rendered a verdict intoxicating liquors. for plaintiff.
This action was brought upon an Dan'l T. Robertson, for respt. accidental insurance policy, which pro II. H. Morange, for applt.
vided that " no claim shall be made On appeal.
under this policy where the death or Held, That the question of defend- injury may have happened while the ant's having authorized the change insured was, or in consequence of his was fairly put to the jury, and having been under the influence of inthey found for plaintiff. The authority toxicating drinks.” It appeared that conferred by defendant and in the man- after receiving his insurance ticket, the ner described, was abundant. The de- assured spent the day with one W., and sign was to make the notes valid instru- during the day he and W. drank from ments against her as feme covert, and a bottle of champagne and a bottle of this was plaintiff's right for the consid-Irish whiskey, but neither appeared eration given.
under the influence of liquor when But if the notes had not been thus al. they sat down to dinner at five o'clock. tered plaintiff could still have recovered Champagne and whiskey were put upon as he proved that the loan was made the table, and toth drank. Several for the benefit of her separate estate. witnesses swore that the assured showed
The question of usury was given on by his manner and speech that he was conflicting evidence to the jury, and under the influence of liquor. Others they found against defendant, and the who saw him either shortly before or proof showed that plaintiff received at the beginning of dinner thought him none of the bonus, and that it was not not under the influence of liquor, if he intended he should.
had drank any. While at dinner, W. Judgment attirmed.
shot the insured, inflicting a wound of Opinion by Brady J.; Davis, P. J., which he died. The judge stated to and Daniels, J. concurring.
the jury, that the question was not sim
ply whether the deceased was under Where detached coupons and interest the influence of intoxicating liquors at
warrants have been stolen, a bona the time he was shot, but whether the
fide transfcree for value acquires a
valid title to the coupons, but not injury occurred in consequence thereof,
to the interest warrants. and was the natural and reasonable re- Coupons payable to bearer are promissult of his being in that condition, and sory notes and negotiable, and their he charged, in substance, that if the validity is not destroyed by being injury happened in consequence of his
separated from the bonds. They are
entitled to the benefit of the days of being under the influence of intoxi
grace allowable on bills and notes cating liq:ors, the plaintiff could not
payable at a given time. recover. Defendant's counsel requested Interest warrants of a railroad comthe court to charge that if, at the time pany are not within the provisions the assured was sliot, he was under the
of 1 R. S, 768 negotiable instru
ments as between third persons. influence of intoxicating drinks, plaintiff could not recover, and this was so
This action was brought against the whether the influence of the liquor oc- I. B. & W. R. Co. to enforce the paycasioned the discharge of the pistol or ment of ten coupons of the said coinnot. This was declined and exceptions pany, and forty-seven interest warrants taken.
of the D. U. B. & P. R. R. Co., each J. B. Adams, for applt.
of which represented the semi-annual
interest due April 1, 1871, on a $1,000 Geo. F. Danforth, for respt.
bond. The present defendant, having Held, That the proposition laid down claimed tle interest, was substituted as by the judge was erroneous, and he defendant in place of the Railway Co., also erred in refusing to charge as re- the latter having paid the amount due queeted ; that the limitation in the into court. The coupons promised to policy related to the condition of the
pay the bearer $35 at a day and place assured, not to the cause which inight named, for semi annual interest on produce his death; that it was not es- bond No. The others were as sential to work a forfeiture that the follows: “$35. Interest warrant for injury or death should occur in conse- thirty-five dollars, $35, upon bond No. quence of the use of intoxicating
of D. U. B. & P. R. R. Co., payliquors. Bradley v. Mut. B. L. Ins. able in gold coin at the office of the Co., 45 N. Y., 222, and Weltz v. Conn. Farmers' L. & T. Co. in the City of M. L. Ins. Co., 48 Id., 34, distinguished. New York, April 1, 1871,” the num
Judgment of General Term, revers- ber of the bond to which they were ing judgment for plaintiff on verdict attached being inserted in each. It and granting a new trial, affirmed.
appeared that the coupons and i. terest Opinion by Miller, J.
warrants were stolen from defendant
and were purchased by plaintiff, who BONA FIDE HOLDER. COU
was a broker, in good faith, withont PONS. INTEREST WARRANTS. knowledge or notice that they had N. Y. COURT OF APPEALS.
been stolen, and that he paid full Evertsen, respt., v. The National value therefor. Bank of Newport, applt.
Samuel Hand, for applt. Decided April 18, 1876.
N. C. Moak, for respt.
Held, That as to the coupons of the I. poel, applt., v. The Mayor, &c., respt. B. & W. R. Co., they were promissory Decided July 6, 1876. notes and negotiable, and the rule of The records of proceedings in an assesscaveat emptor did not apply and plain ment cannot be reached by certiorari tiff's title to them was valid. 102 to the Mayor, &c., by one seeking to Mass. 503; 29 N. Y., 220. That their
vacate the same. validity was not destroyed by their Proceedings to vacate should be taken
under the statute. being separated from the bonds, nor was the title of one purchasing them
Appeal from order denying applica
tion for certiorari. without the production of the bonds to
The relator is the owner of certain which they referred, impaired. 21 How., [U.S.,] 575;1 Wall, 175; 20 14., property on 5th avenue, New York, on 583; 25 N. Y., 496; 57 14., 573 ; 109 which an assessment for repaving has
been laid. Mass., 88. Myers v. Y. & C. R. R. Co., 43 Me., 232; Jackson v. same, 48 Id.,
Desiring to vacate this for certain 147, disapproved.
alleged irregularities, he applies as a Also held, That the interest warrants preliminary step, for a writ of certioof the D. U. B. & P. R. R. Co. were not rari directed to the Mayor, Aldermen within the provisions of 1 R. S., 768, and Commonalty, requesting them to negotiable instruments as between th rd certify and return all papers, &c., relapersons. They were neither promis- ting to this assessment. sory notes nor checks nor bills of ex A. G. Vanderpoel, for applt. change. 1 Pars. on Bills, 33; 13 Mass., W. C. Whitney,, for respt. 158; 1 H. BI., 569; 6 Wend., 637; 4
On appeal. Id., 575; Smith v. Clark & C., 54
Held, That the irregularities comMo., 58, and McCoy v. Wash. Co., 3 Wall. Jr., 381, distinguished ; and that dehors the record, and the production
plained of by the relator are apparently therefore plaintiff, although a bona fide of the records of the proceedings contransferee, acquired no title thereto.
cerning the assessment is not necesAlso held, That the coupons of the I. B. & W.R. Co., being promissory that appears.
sary therefore to his case for aught notes they liad all the characteristics of
He complains only of irregularities such instruments and were entitled to
which are the subject of proof, and the benefit of the days of grace allowable on bills and notes payable at a
which the proceedings referred to would
not necessarily disclose. The allowgiven day or time.
Judginent of General Term, affirm. ance of the writ of certiorari is not ing judgment for plaintiff on report of exercise of a sound discretion should be
always a matter of right, and in the referee, reversed and new trial granted. Opinion by Allen, J.
granted only ex debito justitiæ, when apparently necessary for the accom
plishment of the relief sought (5 Wait's CERTIORARI.
Pr. and cases c:llated). N. Y. SUPREME COURT. GENERAL TERM, Besides, Ch. 338 of act of 1859, and FIRST DEPARTMENT.
312 of act of 1874, seem to confine The People, ex rel. Jacob Vander-wners of property who seek to vacate