Plaintiffs are, however, seized in fee same be not in all respects full, true, of the interests, which they claim to and correct, the said policy shall be void, have derived from the children of and all moners paid on account thereof Matilda, and their estate is subject to forfeited.” One of the questions anno existing life estate, although, if nexed was: “Have the parents, uncles, the trust is valid, it may be subject to aunts, brothers or sisters of the party the right of possession in the trustees been afflicted with insanity, consumpfor the purpose of continuing to tion, or with any pulmonary, scrofulous execute the trusts created by the will. or other constitutional disease?" The Having such an estate they are, accord answer was “No.” It appeared that a ing to the views expressed by Denio brother of deceased died of consumpCh. J. (in 15 N. Y., 623), entitled to be tion. There was evidence that the regarded as having sufficient legal mother, one or more brothers, and one possession to uphold their action for or more of the sisters of the deceased partition.

had been afflicted with pulmonary and Order affirmed.

scrofulous diseases, and had died from Opinion by Davis P.J.; Brady, and their effects. Daniels J. J. concurring.

A. M. Bingham, for applt.

L. A. Hayward, for respt. LIFE INSURANCE. FALSE ANS

Ileld, That this fact, whether known WER TO QUESTION. ACT OF to the applicants or not, at the time the AGENT.

policy was applied for it avoided the N. Y. COURT OF APPEALS. insurance. Baker, appli., v. Home Life Ins. Co., Plaintiff proved that the deceased, respt.

when the application was made, told Decided March 21, 1876.

defendant's agent that she had been inA false answer in an application for informed that one of her brothers had

life insurance avoids the policy, died of consumption. This was denied whether the insurer know its fulsity by the agent. or not, if the answer is a malerial iled, That if this brother had been

the only member of the family who had If a true answer is given by the appli died of consumption, there might have

cant to the company's agent who reduced the answer to writing, and in been a question of fact for the jury, so doing modified or varied its mean. whether the fact that he had died of ing, the company is extopped from consumption had been communicated to challenging its correctness.

defendant's agent. But the explana This action was brought by plaintiff, tion claimed to have been given in reupon a policy of insurance, upon the gard to this brother's death did not cure joint lives of himself and wife, the lat- the vice of the warranty as to the others. t-r having died.

Also held, That if true answers were The application for insurance contained given by the applicant to the defendthis clause: “It is agreed that the ans. ant's agent, who filled ont the applica wers to the airnexed questions shall be tion and reduced the answers to writ. the basis, and form part of the policy ing and the latter modified or varied granted on this application, and if the the answers so as to give them a differ





On May

ent meaning from the answers given the store through which the light and by the applicant, defendant would be air entered. It was proved that the estopped 1:om challenging the correct- tenants had access to the yard and the ness of the answers as modified, and privies. While the premises were in this written by its agent; and the ans- i condition the first story was leased to wers nomially proceeding from the in- plaintiff as a dry goods store for four sured would be regarded as the act of years. At that time plaintiff's occupied the insurer. (13 Wall. 222; 21 id., a sture the rear of which adjoined the 152; 36 N. Y., 550.)

rear of the premises in euit, and it was Judgment of general term, affirming agreed that the doors opening from the judgment of nonsuit, affirmed. store into the hall and yard should be Opinion by Allen, J.

bricked up to make a place for shelves,

and an opening made in the rear wall EASEMENT. LIGHT AND AIR. SO

make communication LEASE.

between the two stores. Plaintiffs did N. Y. COURT OF APPEALS. not use the privies in the yard as they Doyle et al. opplts., v. Lord et al., had one in their other store. respts.

1, 1874, defendants Jeased the whole of Decided March 21, 1876.

the premises in snit for ten years subThe lease of a building in the rear of ject to plaintiff's lease, and commenced

which is a yard, from which the the excavation complained of.
lessee receives light and air passes
the use of the yard as an appur-

A. J. Vanderpoel for the applt. tenant, and an action may be main

T. D. Pelton for the respdt. tained by the lessee restraining any lleld, That when plaintiffs took their interference with or obstruction of lease the use of the yard passed as an the easement so acquired. This action was brought to restrain appurtenant, and they acquired an

easement therein, and although they the deferdants from excavating in a

had the doors leading from their store yard, for the purpose of building an

into the hall and yard closed, and did addition to certain premises which had

not use the privy therein, they were been leased by them subject to a lease

under the terms of their lease entitled of a portion of them held by plaintiff's.

to enjoy the light and air which passed It appeared that in July, 1870, upon in through their windows from the the premises was a building, the lower

yard (19 Wind., 315, 2 Sandf., 316, 10 story of which was occupied as a store, Barb., 537, 19, Ohio St., 135, 33 Penn. and the upper stories by families. The

St., 365, 115 Mass. 204), and that, space cf 19 feet in the rear of the therefore, the action was maintainable. building was vacant except privies

Judgment of general term affirming thereon, and there was no communica

judgment dismissing complaint retion with any street.

There was a

versed, and new trial granted. hailway on the north side of the build

Opinion by Earle, J. ing with a door at each end giving access to the yard, and a door from the lower story into the hall, and REMOVAL OF CAUSE TO U. S

COURT. also from the rear of the store into the yard, and two in the rear of X. Y. COURT OF APPEALS.

Vose, respt. v Yulee, upplt.

removal could not have been made in Decided March 21, 1876.

the action as it originally stood. Under the act of 1866 (14 U. S., S. at

Also held, That a state court will Large 306) a cause cannot be re- not onst itself of jurisdiction unless a moved from a state to the U. S. plain case is made.

The party may Court, where there is but a single apply to the U. S. Court for a mandate

defendant. After trial, appeal and reversal, it is staying proc.edings in the state court,

and if he omits to do this he must at too late to remove under the act of 1789.

least show that he has strictly conplied A party seeking to remove a cause must with the statute, 49 N. Y., 238. comply strictly with the stutute.

Judgment of General Term, affirining This action was commenced originally judgment for plaintiff, affirmed. against defendant and several others Opinion by Church, Ch.d. upon a joint application in equity. The complaint was dismissed at the

BREACH OF WARRANTY. trial as to all the defendants, which

MEASURE OF DAMAGES. judgment was affirmed by the general term and by the Court of Appeals as N. Y. SUPREME Court. GENERAL TERM, to all the defendants except Y., the

TWRD DEPT. present defendant, and reversed as to

White v. Trustees of the Shakers. him and a new trial granted (50 N. Y.

Decided May, 1876. 369). After the remittitur had been sent down and made the judgment of

A religious society, given by the legis

lature power to appoint trustees to the Supreme Court, Y. filed a petition hold its property, with right of sucto remove the case into the Circuit cession to the trustees, are a corporaCourt of the United States under the tion, and the property of the society act of 1966 (14 U.S., Stat. at Large,

is liable for the contracts of such

trustees. 306), which provides for a removal in

Where admissions

competent case the action is against more than one

against the society on an executory defendant, one of whom is a citizen of

contract for the sale of "large Brisa state other than the one in which the tol cabbagescells, there is an impli. suit is, bronght, and as to whom a final ed warranty that the seeds sold will deter:nination of the controversy as to the measure of damages is the loss

produce large Bristol cabbages." him may be had without the presence

sustained by the failure of the crop. of the other parties.

The defendants, by their trustee, sold Frank W. Stevens, for respt.

seeds, which, with few exceptions, proW'. II. IIenderson, for applt. duced worthless plants.

lleu, That Y. being the only defend Action brought against all the trusant at th:e time the attempted removal tees for breach of warranty was made, the cause could not be re The defendants were a religious soci. mored under the act of 1866 legally ; ety, called Shakers, who had adopted a it was too late to apply under the act of covenant, and among other things, by 1789; also that the claim in the origi- it appointed certain persons trustees of nal action being against all the defend- the temporalities, to transact business. ants upon a joint liability in equity, the These trustees issued declarations of





trust as to the manner in which they statutory fees for recording a dern, held the property of the society. By mortgaye or other homogeneous in acts of the legislature the legal estates

strument is illegal and voiel ; non

can this result be evailed by means were confirmed to them and their suc

of an account statel. cessors perpetually, and power to ap- The fees of county clerk for sourching point trustees was given to the society are governed by the Revised Stitutex, by said acts.

and not by the Act of 1840, chu;).

342. Lyman Tremain, for applt.

Fees stated and the statute constil. E. Cowen, for respt.

The plaintiffs . testator thie Held, That the trustees were a cor:

County Clerk of Livingston County, poration, and analogous to trustees of re- and had recorded certain deeds, etc., ligious corporations, and that the prop. and made searches for defendant, and erty of the society was liable for their

had rendered to defendant an account contracts in the ordinary course of bus

for his services. Defendant had paid iness. Articles of association, though

a portion of the account, and this signed by many, may be introduced without proof of execution, where they There

action was brought for the balance.

a judgment dismissing are produced on a trial, upon notice;

plaintiff's complaint. and where there are subscribing wit

S. Hubbard, for the applt. nesses they need not be called where

S. J. Bissell, for the respt. the party producing the instrument claims a beneficial interest under it. Held, We have contined our

On an executory contract for sale of sideration of this case to the questions “ large Bristol cabbage " seed, there is relating to the charges for recording an implied warranty that the seed will deeds and those for searches. The fee produce “large Bristol cabbages.” Evi- provided by statute for recording indence that seed grown on the stock of struments of all kinds is ten cents for Bristol cabbage, though fructified by the each folio (2 R. S. 39, 530), and the pollen of red cabbage would be Bristol taking any greater fee or reward for cabbage seed, held properly excluded. such service is a misdemeanor (id. 650,

The measure of damage is the loss S 5,7). It clearly appears that there sustained by the failure of the crop. was an overcharge in this par icular, (Passenger v. Thorburn, 34 N. Y., 3614.) and the referee properly disallowed

Opinion by Leurned P. J.; Bockes the same. Any agreement express or and Boardman, J.J., concurring. implied involving a violation of the

statutes cited would be void. Nor can

the statutes be evaded by means of an FEES OF COUNTY CLERK FOR account stated, for that would be only RECORDING AND SEARCHING. evidence of an illegal agreement, which N. Y. SUPREME Court, GENERAL TERM. the court cannot sanction or tolerate. FOURTH DEPARTMENT.

With respect to the fees for searches Cartiss as Executor, &c., applt., v. the law is not so clear. We


with McNair, respt.

the referee that the fees for county Any agreement, express or implied, clerks for scarches, not required in fore

to pay a county clerk more than the closure cases, are governed by the

revised statutes, and not by the Act of " whenever in the revised statutes, or 1840, ch. 342, as was held by the late in any other statute, words importing supreme court in Trustees, &c., v. Van the plural number are used, any single

matter shall be deemed to be included, Horn, 3 Den. 171. The title of a

although distributive words may not statute, though forming no part of it, be used (1 Edm. St. 71). A requisition may be resorted to for the purpose to search a single record is within the of limiting its application (Bishop 1; duty enjoined, and the clerk may Barton, 9 Sup. Ct. 436, and cases cited

charge the prescribed fee therefor. For Jones v. Sheldon, 50 N. Y., 477). The

searching another record, if required, title of the Act of 1840, sl.ews that the he is entitled to charge a similar fee, intent of the legislature, in enacting the and so on. Statutes must have a reasonstatue of 1810, was merely to ac- able construction in order to carry out complish a reduction of the expenses of the intention of the legislature. We foreclosing mortgages, and its opera

are of opinion that the legislature intion should be restricted accordingly. tended to measure the compensation of The provision of the revised statutes the clerk, not by the period of time on this subject, gives to a county clerk embraced in his search, but by the “ for searching the records in his office, number of years, whether the same or or the records of mortgages deposited different years embraced in the separate in his office by loan-officers and com- records searched. In other words that missioners of loans, or the dockets of the term vear was intended to embrace judgments for each year five cents.”

the space in the records searched, and We are of opinion that the just interpretation of this language is that it not a period of time. Such an inten

tion is more plainly expressed in the entitles the clerk to charge for each Act of April 11, 1853, relating to fees year embraced in every record, which

of the Clerk of the City and County of he is authorised to keep, and which he New York; but that fact does not shew is required to search. It is his duty to that any other intention should be inprovide different sets of books for the ferred from the statute under considerarecording of deeds and mortgages, tion, or that the latter statute is not and other other papers, documents, &c.

plain enough. Besides, in the City of (1 R. 756, § 2, 376, § 53). The New York the records of deeds and right to receive a fee for perform

mortgages are kept by the register and ing any service carries, with it the cor- not by the clerk. The statute of April responding duty of performing the service on payment of the fee, and this 11, 1853, does not apply to the former

officer, or regulate his tees (Kent's duty is enjoined upon the clerk by char. 126, 127, 1 R. St., 97 id., 112 $ 4, statute (Laws 1847, ch. 470, 40, 4 Edm.

2 id., 286 $ 61, 1 Edm. St. 117). St. 588). The duty is “ to search the

It was suggested on the argument records when required to do so," and that the construction we have put upon the fee is for searching the records."

the statute might lead to an al use of it In both statutes the term “ records” is

by the clerk multiplying the books in used distributively. For the act con

which the records are kept, as, for excerning the revised statutes, passed ample, by keeping a record of warranty December 10, 1828, § 11, provi des deeds, another of quit claim deeds and

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