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reason of the arrest if judgment should be recovered by them, or either of them, in the action, or it should be decided that plaintiff was not entitled to the order and upon such an undertaking being given, order affirmed.

Opinion by Daniels, J.; Davis, P.J., and Brady, J., concur.

NEGLIGENCE. LIMITATIONS.

NONSUIT.

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Joseph B. Dalrymple, applt., v. The City of Oswego, respt.

Decided Jan., 1887.

An action against the city of Oswego for injuries sustained by reason of a defect or obstruction in a street, brought more than a year after the accident occurred, is barred by the statute of limitations. If any of the grounds urged for a nonsuit are right the nonsuit will not be set aside, although it was put on another ground.

Appeal from judgment entered after nonsuit granted at Circuit.

Action for negligence of defendant in regard to obstructions in the street, and for injuries received by plaintiff to his eye and face by reason of being struck by a ball batted or thrown while a game of base ball was taking place in one of defendant's streets.

The injuries were sustained June 27, 1884. Action brought Aug. 28, 1885. The answer alleged as a defense that plaintiff did not commence the action within one year as required by $15 of Chap. 127, Laws of 1877.

At the trial defendant moved

for nonsuit on several grounds, one of them being that the action was not commenced within one year from the time of the alleged injury. The case states that the court "disregarding all grounds of motion for nonsuit, ordered and decided that a nonsuit be granted, and a dismissal of the complaint be taken, upon the ground that it did not affirmatively appear that the injury complained of was the result primarily of the alleged obstruction, but that the primary cause, the alleged "ball playing," being apparently the direct cause of the injury sustained, plaintiff cannot maintain his action."

The case and exceptions were not settled or signed by the trial judge.

Section 15 of the act of 1877 provides that claims for damage or injury alleged to have arisen from defective, unsafe or obstructed condition of any street, etc., or from negligence of the city authorities in respect to such street, etc., shall be presented to the common council within three months after the happening of such injury, and that "no action for such damages or injury shall be maintained unless commenced within one year from the happening of the same."

W. H. Gardenier, for applt.
W. J. Boggs, for respt.

Held, That the complaint was properly dismissed and the nonsuit properly granted. That plaintiff's claim was barred by the statute. Though the nonsuit was put on another ground we are at liberty to sustain it upon this

ground, as we think this ground | damages specified in a contract.

lies" in the way of plaintiff's recovery." 6 Hill, 486.

In Stevens v. Hyde, 32 Barb., 184, it was said by the court, viz.: "if the nonsuit is right upon any of the grounds urged at the trial, or otherwise, it cannot be set aside." See also 10 Barb., 663; 36 id., 618; 60 id., 103.

Judgment affirmed, with costs. Opinion by Hardin, P.J.; Boardman, J., concurs; Follett, J., holds that there is no case on which the court can affirm or reverse on the merits, nor can it affirm by default, as both sides appear, and that it should refuse to hear the appeal.

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N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Frances A. Parr, admrx., respt., v. The Village of Greenbush, applt.

Decided Nov., 1886.

Trustees of a village who have entered into a contract for laying a sidewalk may therein fix a sum which shall be paid by the failing party, and upon the failure of the village to perform the sum may be recovered.

Where the village had no seal and the trustees entered into a contract contain

ing the word "covenant," to which they signed their names and affixed seals, Held, That the instrument was under seal.

The village failed to furnish certain materials, but allowed plaintiff to furnish them; this was contrary to the charter, and in another action it was held that for these plaintiff could not recover. Held, That that judgment was not a bar to this action, which was for the sum agreed to be paid by the failing party. Action to recover liquidated

The contract was made between plaintiff's intestate, Richard Parr, Jr., and the president and trustees of defendant, and was to flag, pave and curb the west side of East street. In 72 N. Y., 463, this contract came before the Court of Appeals. It was held valid in part and invalid in part. By the contract the village agreed to furnish sand and gravel and to grade the street. It failed to do this, and after about two years it passed a resolution allowing Parr to furnish the sand and gravel and do the grading. But the charter required that such a contract should be advertised and let to the lowest bidder. As this had not been done the Court of Appeals held that could not recover for what he had although Parr had performed he thus furnished. That action went back for a new trial and while pending on appeal was settled. The original contract contained a clause fixing $5,000 as "damages to be paid by the failing party." The present action is on this clause. Plaintiff recovered.

J. B. O'Malley, for applt.
E. Countryman, for respt.

Held, That the judgment was right. The sand, gravel, etc., exceeded in value $6,000. For this plaintiff's intestate did not recover in the first action. These materials were necessary to performance. It has been adjudged that he could recover nothing for them. The action is barred unless the contract is under seal. We think it is. The word "covenant" is used; it is stated to be under seal.

A seal or wafer is placed after each nanie. The village had no corporate seal. It could then adopt what seal it chose. 30 Vt., 160; 43 N. H., 343; 90 N. C., 282; 21 Pick., 417; 18 Barb., 36; 1 Dillon Mun. Corp., 3d ed., § 190.

The breach of contract by the village is established. What Parr did at the void request of the village was not done by it, and it could not adopt what it could not originally authorize. The judgment of the former action is not a bar. There a recovery was sought for work and materials furnished under a void resolution. Here a recovery is asked for the breach of a valid contract. In the former action nothing was recovered for

collusion might be inferred and the injury redressed. But see Little v. Banks, 85 N. Y., 263, where in relation to liquidated damages it is said that the State officers, having power to make a contract, have a right to impose reasonable provisions to carry it out, even though no statute gives them a right to fix such damages. It is not necessary to say whether this $5,000 is a penalty or liquidated damages. It appears that the amount is below the damage which Parr suffered.

Judgment affirmed.

Opinion by Landon, J.; Learned, P.J., and Bockes, J., concur.

SUBMISSION. AMENDMENT.

sand and gravel and the present N. Y. SUPREME COURT.

claim was not made; hence a recovery may be had. 60 N. Y., 276; 79 id., 391; 85 id., 345. In the former action he insisted that the resolution was valid. He does not insist upon that now. In fact it would be fatal to this action. Plaintiff accepts the determination there made. It follows that the settlement of the former action did not settle this. It did not do so in terms, and there is nothing to show that such was the intention. Defendant says it had no power to agree to pay $5,000 as damages. It had power to make the contract and to agree to furnish the sand, etc. For non-performance in this it would have become liable to Parr, he being ready to perform. What would the damages have been? This was uncertain, but could be estimated and limited. If grossly excessive

GENERAL

TERM. FIRST DEPT.

William M. Kingsland et al., v. The Mayor, etc., of N. Y. et al.

Decided Dec. 31, 1886.

The court has no power to amend the claim for relief in an agreed case submitted under § 1279 of the Code Civ. Pro. when one of the parties thereto objects to such amendment.

Plaintiff's right to damages for an alleged unlawful interference with his property, consisting of a bulkhead and wharf on the Hudson River, by the building of a structure by defendant in front thereof, thereby cutting off all access to the river from plaintiff's said property, was submitted to the court under the authority of § 1279, Code Civ. Pro., upon an agreed state of facts. The only relief which it was agreed should be awarded to plaintiff, if he should be successful,

was damages for said interference of defendant. The controversy was considered by the court and a judgment awarding damages rendered in plaintiff's favor. Thereafter, upon the statement that since said decision was made the Court of Appeals had decided in the case of Steers v. City of Brooklyn, 22 W. Dig., 530; 101 N. Y., 51, that the owners of the wharf were entitled to the structure erected in front of it by the city, a motion was made by plaintiff to amend the claim for relief made in the agreed case so that plaintiffs might be awarded the possession of said structure instead of damages. Defendant opposed this motion.

action in the court to which the provisions of the law relating to proceedings in actions are subsequently applicable, this section was not designed to confer upon the court the power to change the agreement of the parties, but only that of conforming to the provisions applicable to proceedings in actions in the determination and disposition of the controversy.

That even if the court had the authority, it would not be a provident use to make of it to interfere with and change this part of the agreement after the case itself has been heard and decided and the rights and obligations of the parties have been declared and defined by the judgment which has been

W. W. MacFarland and Stewart entered. & Boardman, for plffs.

James C. Carter and E. Henry Lacombe, for defts.

Held, That the authority conferred upon the court over the subject matter of the action was defined and limited by the agreement of the parties, and it was to award to plaintiffs, in case of their success, remuneration by way of

Motion denied.

Opinion by Daniels, J.; Brady, J., concurs; Davis, P.J., concurs upon the ground that it would be an injudicious exercise of the power of amendment under the circumstances of the case.

BENEVOLENT SOCIETIES.

damages and no other or different N. Y. SUPREME COURT. GENERAL

relief; and that, inasmuch as the parties had thus limited the court in the relief which should be awarded to that of compensation by way of damages, it probably had no further control or authority over the controversy than that which they have in this manner specified and declared. 55 N. Y., 486.

That although by § 1280, Code Civ. Pro., upon filing the submission, the controversy becomes an

TERM. THIRD DEPT.

David Ireland, exr., respt., v. Myra A. Ireland, by guardian, applt.

Decided Nov., 1886.

A beneficial certificate in the "Grand Lodge Ancient Order of United Workingmen of the State of New York," and the rules of the order to which the insured had agreed, required that any member desiring to make a direction as to payment different from that stated in the certificate might do so in a prescribed form

and with certain formalities. The insured, believing himself dying and desiring such change, told a friend he wished this done and asked him to have the forms gone through with. Before anything was actually done he died. Held, That the designation in the certificate must stand and that the person designated was entitled to the money.

This was an action for the pos session of $2,000 paid into court by the "Grand Lodge Ancient Order of United Workingmen of the State of New York." Of this order Delbert Ireland was a masterworkman. He held a beneficial certificate for $2,000, to be paid at his death to his sister, Jennie Ireland. This certificate was issued "upon the express condition that said Delbert Ireland shall in every particular while a member of said order comply with all the rules and requirements thereof." One requirement was that any member desiring to make a new direction as to payment might do so in the form prescribed (printed on the back of the certificate), to be attested by the recorder of the lodge and reported to the grand recorder, surrendering the old certificate and taking a new one. Ireland Ireland subsequently married plaintiff. On June 21, 1885, he thought he was dying; sent for a friend, one Wing, told him he wished his wife to have the benefit of the certificate and wished it changed. The friend took the certificate, but the change in the manner prescribed was not done, nor any of the prescribed formalities performed, when Ireland died. The sister sued the order, which paid the money into court. The action is by her ex

ecutor against the wife substituted as defendant. The executor succeeded.

J. W. Crane, for applt.

J. W. Houghton, for respt.

Held, That the gift was not executed. The position of the parties is not changed by payment into court. 15 Abb., 254; 27 N. Y., 260; 50 Wis., 619. Ireland had agreed to conform to the rules of this association. The sister is still the designated beneficiary. The association would have no answer to her demand. swer to her demand. 95 N. Y., 474; 94 id., 580. We are cited to the case of Madeira v. Madeira, 5 Eastern, 484, and the Scott case, id., 749. In the Madeira case the policy was payable to the heirs or representatives and the insured gave it to his wife. The gift was upheld. In this State such a policy passes by assignment, and we think might also by gift in the absence of restrictions, and especially if the donee had an insurable interest. 13 N. Y., 31; 29 Hun, 470. In the Scott case the policy was reformed. The name of the beneficiary had been omitted. Both the insured and the company understood that it was to be inserted.

In the present case Wing was only Ireland's agent to do for him what it was competent for him to do for himself. It may be conceded that Wing was for the time being trustee of the certificate, but only to execute his agency respecting it. But Ireland died and the agency with him.

Judgment affirmed.

Opinion by Landon, J.; Learned, P.J., and Bockes, J., concur.

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