was occasioned by the giving away of a Where the master has left the control post which supported the tub.and the of his business to an employe, res rying to joist under it which had begun to decay. himself no discretio!, or where the busie. The decay was not visible, and could only ness is of such a nature as that it is neceshave been detected by boring. The de- sarily committed to agents as in the case fendant proved that he kept a carpenter, B., of a corporation, the principal is liable for whose business it was to keep the building the neglect or omission of duty of the oue in proper repair and buy the materials for thus representing him. the same.

That defendant was not a car Judgment of General Term affirming penter himself, but that he sometimes judgment on verdict for plaintiff reversed, conversed with B. about the repairs, and and new trial ordered. was in and about the building and saw

Opinions by Allen and Folger, J. J.,' what was going on. No personal neglect and Church, Ch. J., dissenting. or want of care was charged upon the defendant, or any omission of duty or want of proper care in the selection ol compe- MORTGAGE. UNRECORDED DEED. tént servants or agents to make repairs.

PRIORITY POSSESSION. : The Court charged the jury that it was

N. Y. COURT OF APPEALS. the duty of the master to see that the employe was not exposed to unreasonable

Brown, applt. v. Volkening et al, imrisks, and that he was bound to furnish a pleaded, &c., respts. reasonably safe and secure building, and Decided February 1st, 1876. was responsible for B.'s neglect; that the An actual, visible and open posscesion question was whether B. failed to exercise of the premises by the owner of un reasonable prudence in not examining the

unrecorded title, 18 necessary to uvoid joists and beams.

the lien of a subsequent mortgage Held, (Church, C. J., and Rapallo, J.,

executed by the owner of record ; an

equivocal, occasional, special or tern dissenting) error; that as there was no

porary possession will not take the evidence of a sirrender of power and con case out of the operution of the reg. trol of the business to B. by defendant,

istry laws. and as the latter was present himself This was an action for the foreclosure superintending the establishment in per- of a mortgage given by defendant, D., to son, it will not be presumed that B. was plaintiff, August 8, 1872. The answer of the representative of defendant, and he the defendant, V., set forth that in Juinnwas liable for his neglect and want of ary, 1872, he contracted with D. to pur

L. R. (1 S. & I., apps.), 326; L. cha: e the premises in question for $30,R. (2 Q. B.) 33; 19 C. B. N. S., 361; 16 000, subject to two mortgages amourting id., 669, 692.

to $21,000, which he was to assume,and the A master is not liable to his servant for remaining $9,000 he was to pay by making the negligence or want of proper care of alterations and improvements in nineteen a fellow servant who has not been negli- houses D. was building, of which the gently appointed or retained in service. mortgaged property was one; D. agreeing 2 N. Y. 562; 3 M. & W., 1; 55 N. Y., to have the house sold, finished, and to 608; and it makes no difference that the give the deed of it by May 1, 1872. That servant injured is inferior in grade and previous to May 1, 1872, V. performed subject to the orders of the negligent ser- $24,000 of work on the other honges, and raut if both are engaged in the same gen- more than fulfilled his agreement to the eral business. 39 N. Y., 468; L. R., 2 Q. satisfaction of D., and that D. at that B., 33.

time gave him possession and he took pos


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 npon 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 pet 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. Pos· from 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 The using of lands for pasturing or for long after the mortgage to plaintiff. The cutting timber is not such an occupancy case was tried before the court, without a ins will charge a purchaser with notice. 3 jury, and the judge found as a fact D. had Dutch, 357;3 Pick., 149; 10 N. J. Eq.,

surrendered the keys of the house to V. 419; 23 N. Y., 252. · June 15, 1872, prior to the execution of Also held, That V. was a proper party,

plaintiff's mortgage, and that V. hud en- and his rights could properly be detertered into and had exclusive possession of mined in this action. 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 trial granted. free from any such incumbrance as the

Opinion by Allen, J. plaintiff's mortgage ; that V.'s possession, at the time of the execution of that mort NEGOTIABLE PAPER gage was actual and exclusive, and could

N. Y. COURT OF APPEALS. have been easily ascertained by inquiry on

Barlow, et al., respts. v. Myers applt. the premises, and that such possession was notice to plaintiff of V.'s rights, and

Decided January 25, 1876. that plaintiff's lien was not valid as A general promise for a valuable conagainst V.

sideration to pay all the debts of

another, if it inures to the benefit of Amasa J. Parker, for applt.

the promisee's creditors, applies only Samuel Hand, for respts.

to those who were such at the time the Held, error; that neither the findings

promise was made, and any one

thereafter taking the promisee's outnor the evidence showed an actual, visibie

stunding note by endorsement from occupation by V., such as is required to

a then creditor, takes it subject to all take the case of a prior recorded lien out equities between the endorser and of the operation of the registry laws, but promissor, even th ugh it may be merely a constructive possession of an un taken for value before maturity.

*This action was brought to recover the judgment on report of referee in favor of amount of thi ee promissory notes made plaintiffs reversed, and new trial granted. by the firm of R. & W., payable to the Opinion by Andrews, J. order of N. R., and by him endorsed to plaintiffs 'before maturity. Plaintiffs claimed to recover upon a promise of the PRACTICE. APPEAL . d.fendant to pay the firm's debts. It

N. Y. COURT OF APPEALS. 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 ham, et al., respts. or naming the credi' ors, she agreeing to Decided January 25, 1876. pay the debts of said firm to the amount An order of the Special Term vacating of $22,000.

an order confirming the report of When this agreement was executed

commissioners appointed to appraise N. R. owed the notes in question, and de

land sought to be taken for publio

purposes is discretionary. It may fendant set up in her answer and offered

be reviewed at General Term, but is to prove upon the trial, as a set-off, a note

not appealable to this court. of $5,000, held by her against N. R. This

The Supreme Court has the power to evidence was rejected.

vacate such an order. D. Pratt for applt.

This was an appeal from an order of Jos. Larocque for respt.,

General Term, affirming an order of SpeHeld, Error. That assuming that cial Term, vacating an order confirming the principle of the case of Lawrence v. the report of commissioners appoi: ted to Fox, 20 N. Y., 268, applied, and that an appraise certain lands sought to be taken action might be maintained by a firm by appellants for railroad purposes, and creditor upon the promise, it was to pay appointing new commissioners. The the creditors who were such at the time railroad company claimed that by the the promise was made, and they thereby confirmation of the report of the commisacquired an additional security for the sioners, the title to the property taken bepayment of their claims; and while this came so vested in them as to make the security would, upon an assignment by a order vacating it an unauthorized exercise creditor of his claims, pass as an incident f power. thereto, yet the assignee takes it by de A. P. Laning for applt. rivative title from the assignor, and sub Spencer Clinton for respt. ject to the equities between the latter and

Held, That the order of the Gen'l Term the promissor.

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 reiv. 425.

port, and to appoint other commissioners. -Judgment of General Term, affirming The Special Term in vacating the prior

order was exercising its inherent power A partner is not liable for goods orover the proceedings of the court.

dered by his copartners, on his indi. The power to institute, control and re vidual account, where the goods, by view the proceedings of commissioners in mistake, were delivered to the firm, street opening cases, and in taking lands

if immediate notice is given the ven

dor. for railroad purposes, is given to the Supreme Court as a court, and not to the Appeal from judgment on report of Judges thereof in such way that they referee. must act as a tribunal of inferior jurisdic J. H. Salisbury, in his own name and tion, created by statute, or as commission- on his own account, ordered some whiskey ers appointed by the legislature. 11 N. of plaintiff. He was the senior member Y., 276; 2 id., 406; 40 How Pr., 335. of the firm of J. H. Salisbury & Co., The Supreme Court at Special Term has composed of Salisbury and defendant, and power in dealing with these cases to con- that firm had previously had dealings trol all the proceedings had before it, and with the plaintiff, and purchased whiskey to set them uside on sufficient cause of him for the use of said firm. shown. 49 N. Y., 150.

Plaintiff filled the order by the shipUpon a motion to set aside an order ment of the whiskey to the firm of Salisconfiming a report of commissioners, or bury & Co., and it was delivered to Salisan order appointing them, the court is to bury at his store, which was the common judge whether sufficient cause is shown ; place of business for Salisbury, and for and whether it shall be granted, is a ques- the firm of Salisbury & Co. On receipt tion of discretion, where there is not an of the whiskey at the store, with an inentire lack of merits. The exercise of that voice of the same, as sold to J. H. Salisdiscretion may be reviewed at General bury & Co., it was discovered that the Term, but not in this court. 56 N. Y., plaintiff had made a mistake, and Salis72; R. & S. R R. v. Davis, 43 N. Y. bury gave immediate notice thereof, and 137. It is good cause for the Special advised him said goods were ordered for Term to set aside the proceedings in such J. H. Salisbury and not for J. H. Saliscases if the commissioners had been bury & Co.; that said Salisbury ran the guilty of such carelessness or irregu- drug store alone, and only bad a partner larity as amounted to misconduct by in the butter trade, and directed him to which a party had been harmed; the charge the goods to him. same reasons which would lead to the A. Storm, for applt. setting aside of a verdict of a jury or Lanning & Willet, for respt. & 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 re-bury & Co. if after the receipt of this port of commissioners.

notice he was unwilling to trust Salisbury Appeal dismissed.

as the purchaser of the goods on his indiOpinion by Folger, J.

vidual 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 PARTIES. LIABILITY.

Salisbury individually, according to the N. Y. SUPREME COURT—Gen'l TERM original order anu bis subsequent notices. FOURTH DEPT.

Judgment reversed. Story, respt. v. Evans, applt.

New trial granted. Decided January, 1876.

Opinion by E. Darwin Smith, J.


Plaintiff then offered to prove that P, SUPREME COURT OF ILLINOIS.

had re-assigned said bond and mortgage Van Dusen v. The People.

to plaintiff, and the Court refused to allow

the proof on the ground that there are Decided February, 1876.

no allegations in plaintiff's pleadings ad. An extra-judicial oath is no ground mitting of such proof. for indictment for perjury.

Held, That the proof offered, even unError to Carroll.

der the pleadings as they stood, was comIndictment for perjury in making an petent. affidavit before a tax assessor. l: uid not The defense set up in defendant's answer, appear whether the oath was administered if proved, was a good one; and had plainin the township wherein the assessor was tiff been allowed to prove that P. had reelected.

assigned said bond and mortgage to him Held, That an oath administered out before suit, such defeuse would have been side the township of the assessor would be avoided and plaiztiff entitled to maintain extra-judicial, as the statute gives him no the action. N. reply to d fendant's ansofficial power outside of his territorial wer was necessary; and being unnecessary, limits; and, however false such an oath the allegation as to plaintiff's want of 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 give any evidence that avoided the new territorial limits of the official authority matter in the answer; defendant having of the officer.

proved the assignment to P. it was comConviction reversed.

petent for plaintiff to prove the assignOpinion by Walker, J.


Judgment reversed.

Opinion by Mullen, P. J.


Johnson v. White.
Decided January, 1876.

State ex rel. Harvey Woodford v. JoNo reply is necessary where the answer seph B. North, and others. sets up merely that plaintiff

' is not the real purty in interest.

Decided February, 1875. This was an action to foreclose a mort- The question whether a territory claim

ing to be a school district, is a legage.

yally existing district, cannot be tried. In his complaint plaintiff alleges that

upon an information in the nature he is the owner of the bond and mortgage of a quo warrunto against the perin suit.

sons elected as a coinmittee of the Defendant, in his answer, alleges that

district. one P. was the owner of the bond and Information in the nature of a quo mortgage in suit, and that plaintiff was warran/o, charging the defendants with not the rear party in interest. Plaintiff did usurping the office of school district comnot reply to the answer. On the trial de mittee within a certain area described in fendant proved that plaintiff bad assigned the information. The school district dethe bond and mortgage in suit to P., and ecribed in the information, and of the after some other proof rested.

school committee, of which the relator is


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