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graphed defendant that he had drawn cognizance. Plaintiff testified that after a check for $4,000 "my account." De- he had taken the papers, he said to defendant then owed him $3,000 for bor- fendant "I shall go to Buffalo to settle my matters." It appeared that the rowed money, and $800 for balance of salary. Plaintiff alleged that he drew plaintiff knew that defendant was a man of wealth, and that debts against him were collectible. The judge having charged that the jury were at liberty to give vindictive damages, was requestthat. "There is no justification offered ed by defendant's counsel to charge in the case for the plaintiff's possession of the malt-house receipts." The court in reference said, "I say the private rights of these parties are not before the jury," and defendant's counsel excepted.

and

Asher P. Nichols for applt.

John T. Hoffman, & William. II.
Gurney for respts.

the check to pay for the borrowed
money and arrears of salary due him,
including the whole month of Septem-
ber. At the time plaintiff held defend-
ants note for $3,000 for the borrowed
money. Defendant came to New York
immediately, reaching there on the 6th,
and found plaintiff at the office, and
demanded that he should return the
money, which he refused to do,
he therefore discharged plaintiff. The
latter went to the safe in the office and
took from it an envelop containing the
certificate of deposit for $4,000, some
private papers of his own and bank
vouchers, and three negotiable ware-
Held, That the facts in respect to the
house receipts for about 5,000 bushels taking of the warehouse receipts were
of malt worth $50,000 representing proper to be considered by the jury as
malt, which belonged to defendant, bearing upon the defendant's motive,
held in store for him in New York, and and as the charge withdrew material
deliverable on production of the re facts tending to mitigate the damages
ceipts indorsed by him. Plaintiff put
from the consideration of the jury, it
these
papers in his pocket and left the
office. Defendant testitied that after
plaintiff had gone, another clerk in-
formed him that plaintiff had taken
the receipts and papers, and this was
the first knowledge he had of the fact.
Police officers were sent for and plain-
tiff having returned, defendant de-
manded the papers of him, and he re-
fused to surrender them. Plaintiff tes-
tified that he offered to return them if
defendant would receipt them to him.
This was denied by defendant, Plain-
tiff was arrested and placed in a cell at
the station house where he remained
until the next morning, when he was
discharged on the ground that the mat-
ter was of civil and not of criminal

was erroneous.

Where exemplary or punitive damages are claimed, all the circumstances immediately connected with the transaction tending to explain the motive of defendant are admissible in evidence.

Judgment of General Term, affirming order, denying at new trial, and affirming judgment on verdict reversed and new trial ordered.

Opinion by Andrews, J.

TRUSTEE.

AS

ACCOUNTING. SIGNMENT OF CAUSE OF AC

TION.

N. Y. COURT OF APPEALS.

Helms, applt., v. Goodwill, respt.
Decided March 21, 1876.

action.. The contract was signed in accordance with the agreement, and

The period of the performance of his the premises deeded to defendant, who duty having passed, and there being entered into possession of one and oneno possibility of further perfor- half acres thereof and built a house mance, a trustee is bound to account thereon and occupied the same; the refor the trust estate, and is liable for mainder he mortgaged for $2,500, out any loss to it by his misfeasance or of which sum he paid the executors and neglectful non-performance. In serh case an action for an account ing will lie, although no damages ort raud is proven. the land in lots or sell any lots, and the An assignment of all claims, demands mortgage remaining unpaid was foreand causes of action legal or equit- closed, and the land except the one and able, passes to the assignee a right one-half acres sold thereunder. of action for an acccounting against court upon the trial found the facts

other debts of H., amounting in all to Defendant did not lay out $2,300.

The

a trustee.

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stated above. It also appeared that the land upon the foreclosure sale brought about $600 more than the amount of the mortgage, as a conclusion of law that defendant should pay plaintiff the value of one and one half acres of the land, less the $100 already paid and the $200 received by defendant upon the mortgage, less $28.18 deficiency arising on the foreclosure sale which defendant was obliged to pay.

i

In 1868, H., plaintiff's assignor, was the equitable owner of thirty acres of land. The legal title was held by the executors of C., and they brought an action to foreclose the contract of purchase under which H. held the land, and also an action to recover the value of certain personal property. H. employed defendant and his partner J. as his attorneys to defend said action, and they appeared and conducted the defense of the same. While these actions were pending H. and said executors Heid, No error; that as it was not had an accounting, and the latter agreed that if H. would pay them a certain foun,dand did not appear, that H. knew sum they would convey the land to him. that the deed was made absolutely to H. agreed to sign the contract of pur- the defendant with no declaration of chase to defendant, the latter agreeing the trust therein, that by that transacto take a deed of the premises and to tion a resulting trust was created in hold them in trust for H. and give a favor of plaintiff, 18 N. Y., 515-to mortgage to pay the executors, and lay wit: to raise money by the mortgage, out the land into village lots, and sell with the money to pay creditors, to pay enough lots to pay the mortgage, and the mortgage by a sale of the lands, convey the remainder to H.; and in con- and to pay to H. for the su.plus or resideration thereof defendant was to re- sidue, and thus the latter attained an inceive for his services, if he would build terest in the subject assigned, and dea house thereon, one and one half acres fendant had an active duty to perform of the land, he paying $100 thereon by as to that interest, and the period for applying the same on a note given de- the performance of the duty having tendant's firm for their services in said passed, and the possibility of fur

W. II. Henderson, for applt.
Frank W. Stevens, for respts.

ther performance gone by, defend- by plaintiff resulting from an accident. ant was bound to account for the caused by a misplaced switch.

It had been once tried, and been to the Court of Appeals.

estate and liable for any loss to it by his misfeasance, or neglectful non-performance. Quinn v. Van Pelt, 56 N. The Court of Appeals held that Y., 417 distinguished. That de- evidence offered by plaintiff as to the previous intemperance of the switchman, and that this previous intemperance was known to defendant's agents, was competent.

fendant was liable to the amount found, the $200 being moneys belonging to plaintiff, and the evidence warranted a finding that defendant by reasonable exertion could have sold the land so as save the $600.

This action could be maintained although no damages were proven, and although the management of the estate had been correct, as a demand for an subordinate employees for defendant

On the present trial the same evidence was offered and received, and tended to show that the conduct of defendant's agent entrusted with the power of employing and discharging

account of equity. It was not necessary to establish fraud.

was in this instance grossly negligent. The jury were instructed that they might give punitive damages. Defendant's counsel insisted that the question of negligence was determined, and proved, if at all, without this evidence, and the only object and tendency of the evidence as to previous habits was to inflame the minds of the jury against the defendants.

Also held, That an assignment by H. to plaintiff of all claims, demands and causes of actions, legal or equitable against defendant, passed to plaintiff a right of action for an accounting in regard to the trust estate.

Order of General Term, reversing judgment in favor of plaintiff reversed, and judgment affirmed.

Opinion by Folger, J.

Plaintiff had a verdict for $7,000. Held, 1. That the evidence being admissible in degree no exception would EVIDENCE. EXCESSIVE DAM- lie to its reception on the ground of its insufficient force or weight to establish the fact of culpable negligence. The

AGES.

N. Y. SUPREME COURT. GEN'L TERM, evidence being admissible, it was not FOURTH DEPARTMENT. the duty of the Judge to instruct the

Cleghorn, respt., vs. The N. Y. C. & jury to disregard it. H. R. R. R. Company, applt.

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2. That the power to grant a new trial on the ground of the excessiveness of damages is possessed, but rarely exercised by the Court, and plaintiff's injuries having been severe and having disabled her for many months and may be permanently, the verdict should not

be disturbed.

Decided January, 1876. Evidence that defendant's agent knowingly employed a switchman who was intemperate and incompetent is admissible on question of positive puniitive damages. Courts rarely exercise this right to grant a new trial on the ground of excessive damages. This action was for damages received J., and Gilbert J., concurring.

Judgment affirmed.

Opinion by Smith J.; Mullen, P.

PARTNERSHIP SETTLEMENT. except upon clearly proved allegations

of fraud or mistake.

N. Y. SUPREME COURT. GEN. TERM.
FOURTH DEPARTMENT.

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occasion the defendant stated the loss of the partnership at about $4,000, and also at this time sold and conveyed real estate to plaintiff, and gave other security to pay his proportion of such loss, and the plaintiff then assented to pay the debts of the firm, and released the defendant from such debts as were specified in a certain receipt.

The referee also found that when this arrangement or settlement was made or entered into the plaintiff knew, or was in a situation to know, what amount the defendant had paid on the partnership debts, and as there was no direct proof of mistake or fraud he dismissed the complaint.

L. J. Dorwin, for the applt.
B. Winslow, for the respt.

Held, That where parties have settled and liquidated their accounts courts of equity will not interfere to open them,

That the presumption in all such cases is in favor of the correctness of the accounts, and that the parties were possessed of ordinary capacity and intelligence, and competent to take care of their own interests.

If palpable errors are charged and result of imposition, mistake or fraud, proved, errors which are clearly the the account may be so far opened as to correct such mistake or error. The

burthen is on the parties alleging the error to prove it.

The plaintiff having failed to show that there was any fraud or mistake in the accounts and settlement, the judg ment of the referee is right, and must, therefore, be affirmed.

Judgment affirmed.

Opinion by Smith J.; Mullin P. J.
Gilbert J., concurring.

and

TESTAMENTARY CAPACITY. INQUISITION LUNACY. EVI

DENCE.

N. Y. SUPREME COURT, GENERAL TERM,
FOURTH DEPARTMENT.
Decided January 1876.

Searles et al, Executors, applt. v Harvey and others, respts.

In proceeding to have a will admitted to probate, an inquisition of lunacy previously found raises a presump. tion of testator's incapacity, which it requires some evidence to over

come.

This is an appeal from an order of the Surrogate of Jefferson County, refusing to admit a will to probate.

The appellants are executors.

Prior to testator's death, and on or about January 1873, an inquisition of

lunacy was found, and such inquisition dissolved. The defendants then defound, that at its date, and for more murred to the complaint. The demurthan two years then last past, testator rer was brought on for argument at was of unsound mind and incapable of special term and overruled. The plaindoing business. This date took his in- tiff duly appealed from the order discapacity back to a time prior to the ex- solving the injunction, and the defendants duly appealed from the order cution of the will in question. overruling the demurrer.

J. Mullen Jr., for applt. Hubbard & Watts for respt. Held, That such inquisition is not conclusive evidence of the incapacity of the testator to make a will. It is only presumptive evidence of such incapacity, but some evidence is necessary to overcome such presumption. The evidence given on the hearing before the Surrogate was insufficient for this pur

pose.

INJUNCTION. FRAUD.

N. Y. SUPREME COURT, GENERAL TERM.
FOURTH DEPARTMENT.

Both appeals were brought on for argument together.

Held, 1. It is the settled doctrine of the Courts of Equity that deeds and other contracts fraudulently obtained may be set aside or ordered to be delivered up and cancelled. Te complaint in this action set up a proper

Order of Surrogate reversed.

Opinion by Smith J.; Mullen P. J. case for the exercise of the equitable and Gilbert J. concurring.

power of the court, and the demurrer to said complaint was properly overruled and the order should be affirmed.

Robert, for plaintiffs.

Hiscock, Gifford & Doheny, for defendants.

Equity may decree the delivery up and cancellation of deeds and other writings procured by fraud, and will enjoin their transfer or dispo sition pending the suit.

This is an action in equity to set aside a policy of insurance upon the ground that its possession was obtained by fraud.

2. The order dissolving the injunction was doubtless granted upon the assumption that the plaintiff had a

The Globe Mu. L. Ins. Co., respt., v proper remedy at law, and that the Reals et al, applts.

Decided January, 1876.

complaint did not in this view state facts sufficient to constitute a cause of action.

The decision upon the demurrer dis affirms this view of the law of the case, and involves a reversal of the order dis

solving the injunction and a restitution or revival of the same.

The order dissolving the injunction should therefore be reversed and the in

At the commencement of the action

junction restored, with costs of the ap

an injunction was granted restraining peal and the order overruling the dethe defendant from transferring the murrer should be affirmed, with costs policy, with an order that the defend- of the appeal.

Opinion by Smith, J.; Mullin, P. J.,

ants show cause why such injunction
should not be continued. On the re- and Gilbert, J., concurring.
turn of the order the injunction was

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