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Where, by the terms of a contract, a duty, on an executory contract, the consideration of though not by express covenant, is imposed on which is immoral; when the contract has been one of the parties to perform, and the other executed, the law will not restore the parties to party has an interest in its performance, the law their former condition. Fasig v. Levan et ur. 472 will imply a promise by the party to perform, and will sustain an action by the injured party

An agreement whereby, in consideration of to obtain compensation for a breach of it. Booth an assignment by a debtor of all his estate to v. The Cleveland Rolling Mill Co.

180 two of his creditors as trustees for the benefit of

all the creditors, they agree, upon realization of Where a contract provides for two ways of the estate, to pay the debtor £50, made without ascertaining the value of certain property, one the consent of the other creditors, is illegal as a of them must be resorted to before an action for fraud on their rights. Blacklock v. Dovie et al. the value can be maintained. Ib.

536 A construction given to a contract claimed to Under an agreement by a party, in considerarestrict the right to build to the street line. tion of the use and proceeds of a farm and titlo Clark v. The N. Y. Life Ins. & Trust Co. et al. to same on decease of owner, to take care of

269 owner and his family, &c., the death of such

party terminates agreement, and his representaUpon the sale of a business and its good will tives cannot recover for his time and labor as accompanied by an agreement not to carry on a improvements, but they can for what he originsimilar business within certain limits, the ven

ally brought on to the farm and its increase. dor is bound not only not to solicit but to de- Fox et al., admr. v. Fox.

551 cline all business from customers within the prescribed limits. Sander et al. v. Homan et al. As to the impairment of the obligations of a

270 contract by statute or constitution, see CONSTI

TUTIONAL LAW. A contract to sell and deliver potatoes and ship them on the cars, where the parties have As to supplying defects in contract by parol, had other dealings, is not satisfied by a delivery seò EVIDENCE. at the depot, and party cannot rescind because no one is at depot to pay for them. Kester v As to power of a board of public officers to al. Rey nolds.

289 ter the terms of a contract, without reopening

the bidding, see MUNICIPAL CORPORATIONS. To justify the reformation of an instrument, except in cases of fraud, it must be established

CONVERSION. beyond doubt, by the proof, that the parties agreed to something different from what is ex

See ACTION. pressed. Meade et al. v. Westchester Fire Ins. Co.

323

CORPORATIONS. The instruments sued on in this case, heli not to be instruments of writing for the pay. “

A corporation having declared a dividend, ment of money, but contracts for the delivery of and credited it to the stockholders on the books,

payable at such time as the board may direct,” lime. Gould et al. v. Richardson et al. 347

will be compelled, by a Court of Equity, at the The doctrine applied to simple contracts, exe

suit of a stockholder, to pay within a reasonable cuted by an agent for an unknown principal, time. Beers et al. v. Bridgeport Spring Co. 8 that the principal is liable thereon, cannot be In so far as the dividends are concerned, the extended to contracts under seal. Briggs et al; right of an individual stockholder is adverse v. Partridge et al.

371

to the corporation and to every other stockhold. Where, by the terms of a co tract a day is er: they become his several and distinct propnamed for its performance, and the parties sub- vrty, which cannot be disposed of or dealt with sequently, and before the maturity of the con- by the corporation without his authority or con.

1b. tract, agree upon a particular hour of the day named and a place for its performance, the lat

Their application to the enhancement of the ter agreement becomes a part of the original corporate business and property is unauthorized contract, and of the same effect as if therein and constitutes no reason for the corporation's contained. Levy et al. v. Buryess.

403
refusing to pay.

1b. A coniract between several parties to engage That the directors have ordered the dividends in the business of furnishing recruits under an already declared to be transferred trom the in. anticipated call for volunteers for the army, and dividual account of the stockholders to an acwhich fixes a minimum price at which they are count to be known as a Surplus Fund account, to be furnished, is not against public policy. from which all dividends were to be paid, does Marsh et al. v. Russell et al.

462 not affect the rights of any stockholder not as.

senting thereto. An agreement that in case buildings burn, one will pay the amount of the liens thereon, is

The dîrectors of a corporation unreasonably not an agreement for the sale of lands. Beach refusing, may be compelled to declare a divi. et al., trustees, v. Allen.

463 dend by a Court of Equity, whigh may also

protect the rights of the minority of the stockAlthough an action cannot be maintained up. I holders, where they are disregarded. 16,

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It is no defence to an action to recover an un cover by way of penalty for failing to file a cer. paid subscription, that there was a defect in the tificate of the condition of such company, a debt organization of the company, where there is a incurred by the corporation of which the defend. de tacto corporation from which defendant may ants were trustees, detendants muy contest plain. receive his stock. The Cayuga Lake R. R. Co. tiff's incorporation. Bank of California v. v. Kyle. 119 Garth et al.

593 A member of a corporation may not bring an As to power of officers of, to employ counsel, action individually for the distribution of funds see ATTORNEY AND CLIENT. belonging to the corporation but in the possession of a third party, without first showing As to liability of stockholders, see BANKRUPTthe corporation's refusal to do so, or collusion. CY. O'Brien v. O'Connell et al.

299 As to liability for acts of agent, see Prin.

CIPAL AND AGENT. Members of a corporation having no proprietary interest in its capital, may be expelled

COSTS. therefrom for a violation of its by-laws. T.e People ex rel. Pinckney et al. v. N. Y. Board of A notice of appeal from a Justice's Court Fire Underwriters.

321 where the recovery was over one hundred dollars,

to a County Court, which states as ground of A by-law of a corporation wlicn compels appeal“ that the Justice erred in finding that members to submit all their business contro plaintiff rendered services in a sum exceeding versies to arbitration, and requires them to com- in value the sum of twenty-five dollars," is suf. ply with the awards of the arbitrators, on pain ficient to entitle the appealing party to costs in of suspension or expulsion, is unreasonable, and the County Court, if recovery therein is reduced hence void. Saate ex rel. Kennedy v. Union more than ten dollars. Growx v. McCrum. 77 Merchant's Exchange.

337

Where by section 306 of the Code, the Court A by-law will not be set aside as unreasonable, has discretion as to costs, it may exercise that if there is any equipoise of opinion in the mat- discretion at every stage of the action. Chipits unreasonableness must be demonstra. man et al. v. Montgomery.

107 bly shown.

16.

The rule governing costs of cross appeals, apA by-law made in pursuance of an express plied to a particular case.

1b power in the charter to make such laws, is void, if contrary to the common law, or to a legal en Under a stipulation to allow judginent in acactment.

Iv. cordance with the determination of another suit,

with costs, the same as if a triai had been lad, A religious society, given by the legislature it is proper to allow such costs as were appropower to appoint trustees to hold its property, priate up to the time of the stipulation and trial with right of succession to the trustees, are a for issue of fact. Audenreid et. al. v. Wilson et corporation, and the property of the society is al.

108 liable for the contracts of such trusiees. White v. Trustees of the Shakers,

368 A referee under the provisions of the 3 R. S,

39, S536-7, cannot award costs against an unsucProceedings under section 36 of art. 2d. chap. cessful claimant. Hawkins v. Mosher et al. 152 8, part 3d revised statutes, cannot be instituted against a dissolved

extinct corporation. On recovery in an action of trespass, costs are Lake Ontario Bank v. Onondaga County allowed to plaintift, of course. Sinith v. Ferris. Bank. 400

16:3 A corporation can only be dissolved volunta Extra allowance should be granted only in rily as provided by statute, and proeeedings of cases that are both difficult and extraordinary. the directors not in conformity, are a nulli. Duncan v. Dewitt.

199 ty.

Ib

If defendant counterclaims without serving Nothing but an act of the Legislature or the offer to allow judgment for the excess of claim decree ot a competent court can dissolve a cor over counter-claim, plaintiff is not bound to enporation so as to affect suits, actions, &c. 16 ter judgment for such excess in order to avoid

costs, but may test the counter claim, and if he Trustees of stock company may purchase recover $50 is entitled to full costs. Phelan et property necessary for the business, and issue al. v. Collender.

252 stock to the amount of the value thereof. Del.

540

Where plaintiff's attorney taxed unlawful amiter v. Rhodes.

items in his bill of costs, a subsequent judgment If the property has no definite value it must creditor of the same debtor may apply by peti. be estimated.

16. tion to have the costs readjusted, and the excess

Goodinın et al. v. Proceedings under the statute for the volun- applied to his judgment.

Guthman et al.

338 tary dissolution of a corporation must conform strictly to the statute. Chamberlain v. Roch The motion papers are properly served upon chester Seamless Paper Vessel Co. 588 the first plaintiff's attorney.

lo In an action brought by one corporation Extra allowance of costs are in the discretion against trustees of another corporation to re-of the lower court. Smith v. Smith.

or

In an action to recover damages for the con against the grantor, with intent to defeat a reversion of chattels, where plaintiff claimed $500 covery, is fraudulent and void.

16. and recovered $35, defendant is entitled to costs. Plaintiff cannot by an excessive claim oust a A judgment recovered on notes given to settle justice of the peace of jurisdiction and thereby an action, the issue in which was joined before entitle himself to costs. The verdict is conclu. the extcutio i of the mortgage, held sufficient sive as to the amount in controversy, and in de- to slow an indebtedness prior to the making of termining whether a justice of the peace would the mortgage. Stowell v. Hazlett et al.

523 have jurisdiction.Powers et al. v. Gross. 561

As to setting aside conveyance where the con. As to allowances, see APPEAL ; PRACTICE.

sideration for it consisted of stale demands, see Hale v. Stewart et al.

505 As to costs on motion to amend pleadings, see PRACTICE.

CRIMINAL PRACTICE. As to costs on foreclosure, see MORTGAGE.

On an indictment charging a felony, the jury

may acquit of the felony, and convict of the COUPONS.

constituent misnemeanor. Hunter et al. v. The Coupons payable to bearer are promissory

l'ommonwealth.

207 notes and negotiable, and their validity is not

The Court of Oyer and Terminer will not destroyed by being separated from the bonds. ordinarily consider on motion to have recog. They are entitled to the benefit of the days of nizance declared forfeited, facts which go to the grace allowable on bills and notes payable at a question merely as to whether the recognizance given time. Evertsen o. National Bank of Neu- could be enforced, or whether c rtain facts con. port.

574 stitute a valid defense in favor of the bail. The

People ex rel. Devlin v. Court of Oyer and Ter. COURTS, miner.

226 The Justices of the Distrtct Courts, under the These are questions of fact for trial before a resolution of the Common Council, appr ved proper tribunal.

16. March 16, 1870, are authorized and empowered to appoini janitors for the District Courts. Mc

The office of the writ of error is to remove å Cullough v. The Mayor, &c., of New York. 169 criminal record from an inferior to a higher

criminal jurisdiction. The county clerk slould The provision of the charter, Chapter 335, make return the:eto. The People v. Woodin. Laws of 1873, Section 97, with reference to the

291 Board of Apportionment fixing the salaries of,

The writ of error should always contain the applies to public officials, not to mere servants judgment record in form required $4 of article or employees.

Ib.
1, chap. 2 revised statutes.

Ib. The Legislature may prescribe the form of

As to waiver of trial by jury, see WAIVER. proceedings in any court ; such an act would not be limiting their jurisdiction. Eno v. The

DAMAGES. Mayor, &c., of N. Y.

362

In an action for breach of the covenants of a New York City District Courts are not parts lease whereby the lessor covenanted to erect of the municipal government, and their officers and give possession of the demised premises, are not included in the restrictive clause of the which were to be used for hotel purposes, at a city charter (Sec. 114). Goettman v. The Mayor; specified time, and for which the lessee then &c., of N. Y.

482

owned and had on storage furniture sufficient Rents paid into court on application of plain. to fill, and the lessor failed to give possession, tiffs and by consent of defendant, are subject to the lessee is entitled to damages based upon the its con'rol and discretion, and the court has value of the use of the premises, as furnished, power, in the exercise of its discretiɔn, to award for hotel purposes. Hoxter v. Knox. that they be paid over to the party to whom the judgment gave a right to them, subject to be doue by the lessor, the lessee, where the

Under a lease providing that repairing shall the rights of the other party. Platt et al., ex’rs, v. Platt.

premises become untenantable by reason of les583

sor's neglect, may recover damages for the As to court officers' salary, see SUPERVISORS. whole time they are untenable ; he is not lim

ited to the time within which such repairs COVENANTS,

might have been made, inasmuch as he was not

bound, although he had the right, to make See DEEDB. thom.

Ib CREDITOR'S BILLS.

In an action to recover for injuries resulting

from negligence, whether gross or ordinary, To set aside a conveyance for fraud, absolute, exemplary damages are not allowable. The M. positive evidence of fraud is not necessary ; thé & St. P. R. R. v. Arms.

66 fraud may be inferred from all the facts. Ford V. Johnston.

The measure of damages in trover for con. 498

version by an involuntary trespasser, is the mar. A conveyance made pending an action for tort I ket value of the property at the point where it

53

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is sold by the trespasser, less the expense of

As to exemplary damages for acts of agent, get:ing it there.

Winchester v. Craig et al. 78 see PRINCIPAL AND AGENT. Where it is not so!d, or the market value does

As to damages for breach of warranty, see not cover the expense, the measure is its value

WARRANTY when first taken, together with any profits that might be derived from its value in the ordinary

DEBTOR AND CREDITOR. market, with interest.

If a creditor has a lawful and bona fide debt, Under chapter 382 of the laws of 1870. the it is lawful for the debtor to turn over to the action of the Board of Audit was judicial in its creditor any of his personal property as security nature, but the ordinary rule, that no action can for said debt, if the creditor takes immediate be maintained against one acting in a judicial possession and continues such possession. Archcapacity, is not applicable when the defendant ; er v. O'Brien, sheriff.

299 co raptiy agreed to make bills in which he was interested ; proceedings before a party acting

If the creditor make any arrangement to pro. in such capacity, who is directly interested, are tect the debtor by holding the property for corum non judue, and ihe party is not a judge. some purpose other than the payment of luis de. The People v. Tweed et al.

131 mand, he loses all advantage by the unlawful combination.

Ib. The damages in such an action are measured by the difference between the amount fraudu Where a third person purchases from certain lently drawn or paid and the amount which creditors of a failing debtor his debts at a stipucould honestly have been drawn or paid. Ib. lated per centum, and takes an assignment to

himseif, and such third person acts, not A party to a fraudulent combination to pro: agent for the debtor, but purely in his own be cure money is individually liable to the full alf, the debts are not compromised in such extent of the moneys wrongfully abstrected, manner that one creditor can enforce any ha). although they may have been partially received ance of the indebtedness by proving simply that by others acting with him.

1b. some other creditors received more than himself In an action against town supervisors for fail. I upon the sale of his claim. Goldenberg et al v.

Hoffman et al.

372 ure to piace certain judgments upon the tax list as required by law, the damages in the Where the appointmeni of a receiver has preabsence of proof of actual, are limited to nomi- vented a levy by a creditor, his rights will be nal damages; the supervisors do not become protected, and he will be permitted to show, debtors for the full amount of the judgments. without actual levy, that another creditor's seDow y. Humbert et al.

185 curity s void. Steroart v. Beale et al. 513 Where a mill-owner has a right to the use of

As to rights of secured creditor of bankrupt, a reservoir and dam, the fee belonging to a third

see BANKRUPTCY. person, and is charged with the duty of maintaining the dam, and a riparian proprietor below

DEEDS. erects a cam which sets the water back upon the reservoir dam, he can recover only for the A covenant against incumbrances, in a deed, injury to his easement. Robertson v. Wood. is a covenant in presenti, and there can be no worth.

200 breach unless an action thereon would lie at A diminished benefit from the use of the once. Barlow v. the St. Nicholas National Bank

28 reservoir, or an increase of the cost and trouble in keeping the dam in reprir, or an obstruction The entry ot the land in the assessment roll of the plaintiff iz his right of repairing, would is nou an imposition of a charge upon the land. constitute such an injury. 16.

lb. The owner of land at the time the change of grade is in fact cor pleted is the person who is the land as commencing at the intersection of

A grantee claiming under a deed describing damaged, and is the person who is entitled to the exterior lines of two streets takes only to the award for da ages done to property by : such exterior lines; the point thus fixed is as change of grade. The People ex rel. Kurzman controlling as any monument would have been, v, Green et al.

206

and necessarily excludes the soil of the street. In the absence of fraud or mistake the White's Bank of Buffalo v. Nichols.

54 amount agreed upon between parties to a con. tract as to deductions for defects must stand,

Where the grant contains no evidence that the and the fact that they were unreasonable makes parties contemplated a shifting boundary, the no difference. Stecle et al. v. Lord. 225 fact that the street is subsequently narrowed so

as to remove its exterior line towards its center, In an action under the Civil Damage Act to does not enlarge the area of the lots granted: support a finding of exemplary damages, there iheir lines are fixed permanently, and cannot be must be a finding of actual damage, and changed to conform to any altered condition or without this, exemplary damages cannot be circuinstances.

Ib. awarded. Roth v. Eppy.

596

The presumption is that the grantor does not As to measure ef damages in actions for fraud intend to retain the fee of the soil of the street, in sales, see FRAUDS.

but such presumption may be overcome by the

of N. Y.

66

92

use of any terms in describing the premises

DELIVERY. granted which may indicate an intent not to

As to what will constitute a good delivery, see convey.

1b.

CONTRACT. What will not exclude from the operation of a grant the soil of a street, stated.

Ib.

DEPOSITIONS. A deed of conveyance executed under a power

See PRACTICE. of attorney, and apparently within its scope, is presumed to be valid. Clement v. Macheboeuf et

DISCONTINUANCE. ul.

See PRACTICE. A mistake in a deed can be corrected as between the parties to the conveyance, but not

DISORDERLY HOUSES. as against a bona fide purchaser without notice. Caster v. Sitts et al.

A house of prostitntion wherein there is fight.

ing and drinking is within the statutory provisWhere the vendor agrees to sell land and exe- ion for disorderly house. Jacobowski v. The Peocute a deed, which he knows does not, and which ple.

10 he knows the vendee believes does convey the whole of the land, the vendor will be decreed to

DIVORCE. convey the residue. Beardsley v. Duntley. 490

Obstinate silence, laziness, or wilful neglect The fact that demands, in consideration of of household duties on the part of a wife, do which a certain conveyance was made were not constitute cruel and barbarous treatment as stale, does not render the conveyance fraudulent a ground for divorce within the meaning of the and void as to creditors; the demands being bona Act of May 8,1854. Harris v. Harris

120 fide. Hale, rec'r. v. Stewart et al.

505

Where a husband writes a letter to an absent Where the debts which are the consideration wife, who is residing with her parents, that he of alleged fraudulent conveyances are bora fide, will not receive her, and she does not return and very strong evidence will be required to show try to obtain admission, it is not such a turning that the conveyances themselves are fraudulent. out of doors as will entitle her to a divorce, Niles v. Fish et al. 150 Sowers v. Sowers.

548 As to effect of covenant against incumbrances

As to admissibility of affidavit of party on where assessment has been levied, see Assess-motion to set acide decree of, see PRACTICE.

As to evidence in actions for, see EVIDENCE. As to fraudulent deeds, see CREDITOR's BILL

DOWER.
DEFENCE.

A right of dower is not divested by the mere In an action brought under Chapter 49 of the finding of the referee that the wife has been Laws of 1875, it is no defence that some of the guilty of adultery; it can only be done by a warrants issued by the county autborities upon judgment of divorce granted upon such finding. the bank where the public money was deposited, Schiffer v. Pruden.

11 were not endorsed by the payees, if the defend. ant procured the money thereon; it makes no An agreement releasing a married woman's difference that the plaintiff's have a remedy right of dower made after marriage, will be de. against the bank also. The Pcople v. Tweed et al. clared void in equity, where it appears to be a

131 fraud upon her rights, unequal and unjust, and

executed under suspicious circumstances. In an action for negligently and carelessly Campbell et al. v. Hammett.

204 ejecting plaintiff from a railway car, whereby he was unnecessarily injured, it is no detence

DURESS. that he was a trespasser upon the car. Rounds v. The D. L.& W. R.R. Co.

260

See PAYMENT. The pendency of a foreign attachment against the payee of a note in which defendant is made

EASEMENTS. garnishee, is no defence to a suit by the holder

Nothing short of an intention to abandon an against the maker. Bank v. Marquis. 288

easement will operate to extinguish it, unless In an action against the City of New York to other persons have been led by the acts of the recover the contract price of material actually owners of the easement to treat the servient esdelivered to and used by the defendant, for the tate as if free from the servitude. Whate's Bank construction of sewers, which contract was made of Buffalo v. Nichols,

54 with the Commissioners of Public Works, in

The lease of a building in the rear of which April, 1871, it is po defence that there was no is a yard, from which the lessee receives light ordinance of the Common Council directing the and air, passes the use of the yard as an appur. contract, or other proof that the Commissioner tenant, and an action may be maintained by the was authorized by defendant to make the con- lesseu restraining any interferer.ce withı or obtract. Nelson v. The Mayor, &c. of N. Y. 313

struction of the easement so required. Doyle et. See PRACTICE; NEGOTIABLE PAPER.

al. v. Lord et. al,

307

MENT.

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