was occasioned by the giving away of a post which supported the tub and the joist under it which had begun to decay. The decay was not visible, and could only have been detected by boring. The defendant proved that he kept a carpenter, B., whose business it was to keep the building in proper repair and buy the materials for the same. That defendant was not a car

penter himself, but that he sometimes conversed with B. about the repairs, and was in and about the building and saw what was going on. No personal neglect or want of care was charged upon the defendant, or any omission of duty or want of proper care in the selection of competent servants or agents to make repairs. The Court charged the jury that it was the duty of the master to see that the employe was not exposed to unreasonable risks, and that he was bound to furnish a reasonably safe and secure building, and was responsible for B.'s neglect; that the question was whether B. failed to exercise. reasonable prudence in not examining the joists and beams.


Held, (Church, C. J., and Rapallo, J., dissenting) error; that as there was no evidence of a surrender of power and control of the business to B. by defendant, and as the latter was present himself superintending the establishment in person, it will not be presumed that B. was the representative of defendant, and he was liable for his neglect and want of are. L. R. (1 S. & I., apps.), 326; L. R. (2 Q. B.) 33; 19 C. B. N. S., 361; 16 id., 669, 692.

. A master is not liable to his servant for the negligence or want of proper care of a fellow servant who has not been negligently appointed or retained in service. 2 N. Y. 562; 3 M. & W., 1; 55 N. Y., 608; and it makes no difference that the servant injured is inferior in grade and subject to the orders of the negligent servaut if both are engaged in the same general business. 39 N. Y., 468; L. R., 2 Q. B., 33.

Where the master has left the control of his business to an employe, res rving to himself no discretion, or where the business is of such a nature as that it is necessarily committed to agents as in the case of a corporation, the principal is liable for the neglect or omission of duty of the oue thus representing him.

Judgment of General Term affirming judgment on verdict for plaintiff reversed, and new trial ordered.

Opinions by Allen and Folger, J. J., and Church, Ch. J., dissenting.



Brown, applt. v. Volkening et al, impleaded, &c., respts.

Decided February 1st, 1876.

An actual, visible and open possession of the premises by the owner of an unrecorded title, is necessary to avoid the lien of a subsequent mortgage executed by the owner of record; an equivocal, occasional, special or temporary possession will not take the "case out of the operation of the reg istry laws.

This was an action for the foreclosure of a mortgage given by defendant, D., to plaintiff, August 8, 1872. The answer of the defendant, V., set forth that in Jannary, 1872, he contracted with D. to purchase the premises in question for $30,000, subject to two mortgages amounting to $21,000, which he was to assume,and the remaining $9,000 he was to pay by making alterations and improvements in nineteen houses D. was building, of which the mortgaged property was one; D. agreeing to have the house sold, finished, and to give the deed of it by May 1, 1872. That previous to May 1, 1872, V. performed $24,000 of work on the other houses, and more than fulfilled his agreement to the satisfaction of D., and that D. at that time gave him possession and he took pos

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Bession, and has put large improvements occupied house; that there was nothing to on the property. The evidence showed indicate any difference in the proprietorthat D. gave to V. an unsigned deed of ship between this house and any of the the premises in April, 1872, and that this others, and that the lien of plaintiff's was not executed until the November fol- mortgage was paramount to V.'s title. lowing, and that he gave to V. the keys of The protection given by the registry laws the house in June, 1872, and that V. had to those taking title upon the faith of the mechanics and laborers in the house per-records should not be taken away except forming work, which was in substantial upon clear proof of a want of good faith compliance with his agreement with D. in the party claiming such protection, and for work upon the nineteen houses, a clear equity in him seeking to establish although the work put upon this house a right in hostility thereto. There should was of a better character and more exper-be proof of actual notice of prior title or sive than he had put upon the other. It equities, or of circumstances which should did not appear that V. accepted the house put a prudent man upon inquiry. Posfrom D. as finished, until long after the session to have this effect must be actual, mortgage was given to plaintiff, but that open and visible, not equivocal, occasionuntil late in the Fall of 1872 V. was urg-al, or for a special and temporary purpose. ing D. to complete the house as agreed, 3 Ker, 180; 2 Barb. Ch., 555; 2 Paige, and complained that it was not done, and 30; 2 Mass., 508; 6 Wend., 213; 3 Barb. did not accept the deed until November, Ch., 316; 20 N. Y., 400. 1872. The house was unoccupied until long after the mortgage to plaintiff. The case was tried before the court, without a jury, and the judge found as a fact D. had surrendered the keys of the house to V. June 15, 1872, prior to the execution of plaintiff's mortgage, and that V. had entered into and had exclusive possession of the premises as purchaser under and in Judgment of General Term, affirming pursuance of the agreement, and was en-judgment for defendant reversed, and new titled to a conveyance thereof from D free from any such incumbrance as the plaintiff's mortgage; that V.'s possession, at the time of the execution of that mortgage was actual and exclusive, and could have been easily ascertained by inquiry on the premises, and that such possession was notice to plaintiff of V.'s rights, and that plaintiff's lien was not valid as against V.

Also held, That V. was a proper party, and his rights could properly be determined in this action.

trial granted.

Amasa J. Parker, for applt.
Samuel Hand, for respts.

Held, error; that neither the findings. nor the evidence showed an actual, visib.e occupation by V., such as is required to take the case of a prior recorded lien out of the operation of the registry laws, but merely a constructive possession of an un

The using of lands for pasturing or for cutting timber is not such an occupancy as will charge a purchaser with notice. 3 Dutch, 357; 3 Pick., 149; 10 N. J. Eq., 419; 23 N. Y., 252.

Opinion by Allen, J.


Barlow, et al., respts. v. Myers applt.
Decided January 25, 1876.

A general promise for a valuable con-
sideration to pay all the debts of
another, if it inures to the benefit of
the promisee's creditors, applies only
to those who were such at the time the
promise was made, and any one
thereafter taking the promisee's out-
standing note by endorsement from
a then creditor, takes it subject to all
equities between the endorser and
promissor, even though it may be
taken for value before maturity.

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This action was brought to recover the amount of three promissory notes made by the firm of R. & W., payable to the order of N. R., and by him endorsed to plaintiffs before maturity. Plaintiffs claimed to recover upon a promise of the dfendant to pay the firm's debts. It appeared that R. & W., being largely indebted to the estate of A. M., of which In re application of N. Y. C. and H. R. defendant was sole executrix, sold to her R. R. Co. for appointment of Commissionthe firm assets in payment of such in-ers to appraise lands, applts., v. Cunningdebtedness, without specifying the debts or naming the credi ors, she agreeing to pay the debts of said firm to the amount


ham, et al., respts.

Decided January 25, 1876.

of $22,000.

When this agreement was executed N. R. owed the notes in question, and defendant set up in her answer and offered to prove upon the trial, as a set-off, a note of $5,000, held by her against N. R. This evidence was rejected.

D. Pratt for applt.

Jos. Larocque for respt.,

Held, Error. That assuming that the principle of the case of Lawrence v. Fox, 20 N. Y., 268, applied, and that an action might be maintained by a firm creditor upon the promise, it was to pay the creditors who were such at the time the promise was made, and they thereby acquired an additional security for the payment of their claims; and while this security would, upon an assignment by a creditor of his claims, pass as an incident thereto, yet the assignee takes it by derivative title from the assignor, and subject to the equities between the latter and the promissor.

judgment on report of referee in favor of plaintiffs reversed, and new trial granted. Opinion by Andrews, J.

An order of the Special Term vacating
an order confirming the report of
commissioners appointed to appraise
land sought to be taken for public
purposes is discretionary. It may
be reviewed at General Term, but is
not appealable to this court.
The Supreme Court has the power to
vacate such an order.

This was an appeal from an order of General Term, affirming an order of Special Term, vacating an order confirming the report of commissioners appoi: ted to appraise certain lands sought to be taken. by appellants for railroad purposes, and The appointing new commissioners. railroad company claimed that by the confirmation of the report of the commissioners, the title to the property taken became so vested in them as to make the order vacating it an unauthorized exercise of power.

A. P. Laning for applt.
Spencer Clinton for respt.

Held, That the order of the Gen'l Term was not appealable; that the right of the The rights of a transferee forbid us be- company to the land, if any, was the refore maturity of choses in action to hold sult of the proceedings, and depended them freed from the equities existing upon the upholding of them, and they against them in the hands of a prioraving been declared invalid, no such holder attaches only to negotiable instru- right existed; that the court had power ments, not to guarantees thereof, and se- to revoke the appointment of the first curities therefor contained in separate commissioners for good cause shown, and instruments. 19 Wend., 557; S. C. 26 to set aside the confirmation of their reid. 425. port, and to appoint other commissioners. Judgment of General Term, affirming The Special Term in vacating the prior

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order was exercising its inherent power over the proceedings of the court.

The power to institute, control and review the proceedings of commissioners in street opening cases, and in taking lands for railroad purposes, is given to the Supreme Court as a court, and not to the Judges thereof in such way that they must act as a tribunal of inferior jurisdiction, created by statute, or as commissioners appointed by the legislature. 11 N. Y., 276; 2 id., 406; 40 How Pr., 335. The Supreme Court at Special Term has power in dealing with these cases to control all the proceedings had before it, and to set them aside on sufficient cause shown. 49 N. Y., 150.

A partner is not liable for goods or dered by his copartners, on his individual account, where the goods, by mistake, were delivered to the firm, if immediate notice is given the vendor.

Upon a motion to set aside an order confirming a report of commissioners, or an order appointing them, the court is to judge whether sufficient cause is shown; and whether it shall be granted, is a question of discretion, where there is not an entire lack of merits. The exercise of that discretion may be reviewed at General Term, but not in this court. 56 N. Y., 72; R. & S. R R. v. Davis, 43 N. Y. 137. It is good cause for the Special Term to set aside the proceedings in such cases if the commissioners had been bury & Co.; that said Salisbury ran the

Plaintiff filled the order by the shipment of the whiskey to the firm of Salisbury & Co., and it was delivered to Salisbury at his store, which was the common place of business for Salisbury, and for the firm of Salisbury & Co. On receipt of the whiskey at the store, with an invoice of the same, as sold to J. H. Salisbury & Co., it was discovered that the plaintiff had made a mistake, and Salisbury gave immediate notice thereof, and advised him said goods were ordered for J. H. Salisbury and not for J. H. Salis

drug store alone, and only had a partner
in the butter trade, and directed him to
charge the goods to him.
A. Storm, for applt.




Appeal from judgment on report of referee.

J. H. Salisbury, in his own name and on his own account, ordered some whiskey of plaintiff. He was the senior member of the firm of J. H. Salisbury & Co., composed of Salisbury and defendant, and that firm had previously had dealings with the plaintiff, and purchased whiskey of him for the use of said firm.

guilty of such carelessness or irregularity as amounted to misconduct by which a party had been harmed; the same reasons which would lead to the setting aside of a verdict of a jury or a report of a referee for misconduct, Held, The plaintiff was not at liberty palpable mistake or accident, would to regard the goods as sold to J. H. Salissuffice for like interference with the rebury & Co. If after the receipt of this port of commissioners.

Lanning & Willet, for respt.

Appeal dismissed.

Opinion by Folger, J.

notice he was unwilling to trust Salisbury as the purchaser of the goods on his individual credit and account, he should have immediately reclaimed the same. His omission to do so was an assent on his part to treat the sale as a sale made to Salisbury individually, according to the original order and his subsequent notices.

Judgment reversed.

Story, respt. v. Evans, applt.

Decided January, 1876.

New trial granted.

Opinion by E. Darwin Smith, J.



Van Dusen v. The People.

· Decided February, 1876.

An extrajudicial oath is no ground
for indictment for perjury.
Error to Carroll.

Held, That the proof offered, even under the pleadings as they stood, was competent.

The defense set up in defendant's answer, if proved, was a good one; and had plaintiff been allowed to prove that P. had reassigned said bond and mortgage to him before suit, such defense would have been avoided and plaintiff entitled to maintain the action. N. reply to d fendant's answer was necessary; and being unnecessary, the allegation as to plaintiff's want of

Held, That an oath administered outside the township of the assessor would be extra-judicial, as the statute gives him no official power outside of his territorial limits; and, however false such an oath might be, it would not support a charge title was denied for all the purposes of of perjury. The place of administering the action, and plaintiff was entitled to the oath must be shown to be within the territorial limits of the official authority of the officer.

give any evidence that avoided the new matter in the answer; defendant having proved the assignment to P. it was competent for plaintiff to prove the assign


Indictment for perjury in making an affidavit before a tax assessor. It did not appear whether the oath was administered in the township wherein the assessor was elected.

Conviction reversed.

Opinion by Walker, J.




Johnson v. White.

Decided January, 1876.

No reply is necessary where the answer sels up merely that plaintiff is not the real party in interest.

Plaintiff then offered to prove that P. had re-assigned said bond and mortgage to plaintiff, and the Court refused to allow the proof on the ground that there are no allegations in plaintiff's pleadings admitting of such proof.


In his complaint plaintiff alleges that he is the owner of the bond and mortgage in suit.

Judgment reversed.
Opinion by Mullen, P. J.




State ex rel. Harvey Woodford v. Joseph B. North, and others.

Decided February, 1875.

This was an action to foreclose a mort- The question whether a territory claiming to be a school district, is a leyally existing district, cannot be tried. upon an information in the nature of a quo warranto against the persons elected as a committee of the district.

Information in the nature of a quo warranto, charging the defendants with usurping the office of school district com

Defendant, in his answer, alleges that one P. was the owner of the bond and mortgage in suit, and that plaintiff was not the rear party in interest. Plaintiff did not reply to the answer. On the trial de-mittee within a certain area described in fendant proved that plaintiff had assigned the information. The school district dethe bond and mortgage in suit to P., and scribed in the information, and of the after some other proof rested. school committee, of which the relator is

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