« ForrigeFortsett »
See CHATTEL MORTGAGE, 8; CORPORATIONS,
4; Costs, 8; RAILROADS, 18; SUPPLEMEN-
See MORTGAGE, 6, 16.
See EXECUTION, 3, 4; TAXES, 1, 2.
number of different chattels but states
purchased goods of plaintiffs which de-
1. The complaint alleged that plaintiff's as-
signor became owner of the interest of a
Morrison v. Van Benthuysen et al., 62.
pendent in part, at least, on the testimony
v. Vetter, 234.
by a referee, where there is no exception
is that the finding of the referee upon the
of certain specified matters it is not error
See MORTGAGE, 19.
brought with knowledge of defendant's
thereby.-Hayes v. Midas et al., 495.
that one who is guilty of fraudulently
has no other means of information.-Id.
See SALE, 8, 9.
1. Where an action is to recover for two
causes, one of which survives and the
Brackett v. Griswold, 41.
See MANDAMUS, 1.
9. But in an action of replevin brought by
the vendor against an assignee for the benefit of creditors of the fraudulent purchaser to recover the property thus fraudulently obtained, an offer on the trial to return the purchase money paid at the time of the sale, less the value of the goods disposed of prior to the replevy, and the depreciation of the goods replevied, is sufficient and all that the law
requires.-Id. 10. When an assignee for the benefit of
creditors is not a bona fide purchaser.
Id. 11. One M. agreed to sell to a corporation
certain ties to be delivered at specified points, a certain sum to be paid on deliv. ery and the balance when they were taken and used. The ties were delivered and the advance paid, but they were never inspected or taken by the company. Held, That no title passed to the company.
-Cornell v. Clark, 566. 12. Subsequently M. sold the ties to plain
tiff, who had been a director of said company, who paid for and took them away. Held, That the legal title was vested in plaintiff, and that the property could not be taken under execution against the
company.-Id. See ACTION; BANKRUPTCY; EVIDENCE, 22;
FRAUD, 5, 6, 10; REFERENCE, 1; WAR
SCHOOLS. 1. In an action by a school teacher for
wages the complaint alleged a contract with the trustee; performance of services thereunder, and a refusal by the trustee to pay. On demurrer, Held, Sufficient. and that if plaintiff was not a qualified teacher or had omitted his duty such defenses should be brought in by answer.
Ellis v. Sharp, 202. 2. Defendant was elected collector of taxes
for a school district in Oct., 1882. He received the warrant for the collection of school taxes Dec. 11, 1882. He had not then been notified to give a bond nor had its amount been fixed. He however posted the statutory notices requiring voluntary payment, and in the lifetime of the warrant subsequently demanded payment of a tax of plaintiff which was refused. The warrant expired and was renewed by the trustee Jan. 23, 1883. The next day defendant gave his bond to the trustee. He again demanded payment, which was refused, and he levied upon and sold property of plaintiff. Held, That his action was legal The notices already posted were sufficient, as the bond once given related back and made him competent to execute the warrant.
See ASSESSMENTS, 9.
See CORPORAT.ONS, 3, 5; N. Y. City, 1, 2.
SALE. 1. Under a contract for the sale of wagon
hubs the vendees were to sort and count them after delivery. Held, That title passed to the vendees on delivery.- Price
et al. v. Heath, 131. 2. The proposition that fraud must be
proved and will not be presumed applies to civil as well as criminal trials.-Id.
3. The fact that vendees found themselves
insolvent five months after making the contract is not of itself evidence of their
fraud in making the purchase.-1d. 4. On a sale of goods which are clearly
identified, as bags of coffee distinguished by marks and numbers, the title passes to the purchaser notwithstanding a requirement that they be weighed; especially where the question affects an innocent purchaser or pledgee of the vendee.
-Sanger et al. v. Waterbury et al., 224. 5. A sale of property absolute in its terms
containing the condition that the vendee, as the purchase price of the property, should pay to each of the creditors of the vendor a certain percentage of their sev. eral debts pro rata, less than the full amount, in full of such debts, is not fraudulent as tending to hinder and delay creditors.-Chadwick v. Burrows et al.,
255. 6. Under such an agreement the vendee
cannot require that any of the creditors not consenting to the agreement receive such percentage in discharge and satisfaction of his debt, but such creditor is entitled to receive such sum in abatement of his claim.-Id.
7. Such vendee is in no respect a trustee,
but his payments are made in pursuance of an original undertaking to pay them as the purchase price of the property
bought by him.-Id. E. Where upon a sale and purchase of goods
possession is obtained by the purchaser by means of a fraud, the vendor has the right to repudiate and rescind the sale and bring an action of replevin for the goods. He is bound, however, to rescind promptly on discovering the fraud, and must restore, or offer to restore, whatever he has received of value on the sale. Schoonmaker et al. v. Kelly, 301.
The statute is mandatory as to the giving of the bond, but directory as to the time when it shall be given.-- Duntley v.
services through illness, and unless the contract provides some means to sever the services, the husband is not required
to proceed alone.--Costen v. Decker, 231. 9. That in such case the recovery must be
upon the quantum meruit, and the stipulated price for the services is some evidence of their value.-Id.
SEDUCTION. See INDICTMENT, 4.
See LIMITATION, 3.
1. In an action to recover for services per
formed for defendant's testator, defendant, who was the widow of said testator, was asked as a witness what proportion of plaintiff's time was devoted to the business of her testator. Held, Admissible; that the question called for a fact within her knowledge, and not for an
opinion.-Johnson et al. v. Myers, 50. 2. Another witness was asked if he had
been with J. when he was professedly in said business. Held, That this did not call for declarations of J. that he was at work for testator, but to show that witness knew the kind of business in which
J. was engaged.-Id. 3. Where the business requires the best
judgment, skill and ability and is largely of a confidential nature, is varied and in many respects responsible, proof of the capacity and ability of the person performing it is pertinent, and he is entitled to be paid for his services on that basis.
Id. 4. Construing the terms of a contract for
personal services in a mercantile business where the pay was to consist of a certain proportion of the “net profits” of the
business.—Eldredge v. Smith, 146. 5. An effort to obtain other employment is
not a condition precedent to plaintiff's right to recover damages from his employer for a wrongful discharge.—How
son v. Mestayer, 152. 6. Prima facie, plaintiff's damage is the
amount of the stipulated compensation, and the burden is on defendant to show that through plaintiff's negligence the damages have been increased.
Id. 7. A mere conjecture on plaintiff's part that
bs obtaining the discharge of another he might get employment in such other person's place, there being no evidence of the salary to be earned, etc., does not amount to proof that plaintiff could have
found other employment. — 1d. 8. Full performance of an indivisible con
tract for the services of a husband and wife for a definite period is excused by the inability of the wife to perform the
SET OFF. 1. A husband, acting as the agent of his
wife, leased her interest in a mill to plaintiff, who agreed to pay the rent in Hour and feed and otber mill products, to be delivered at the husband's flour and feed store, to which the wife assented. In an action against the husband for the price of the flour, etc., delivered at his store, Held, That the evidence warranted a finding that the husband was authorized by his wife to apply the amount of the rent due in payment for the goods; that he was entitled to set off such amount, and that the referee erred in finding to the contrary.-Whiting v. Hood et al.,
158. 2. Defendant's assignors, R. & Co., indorsed
and delivered to plaintiffs the note of B., representing that it was as good as the Bank of England, etc., and requesting them to indorse it and procure it to be discounted at the bank and forward the proceeds to them; all of which plaintiffs did. At this time plaintiffs were indebted to R. & Co. upon a claim not then due; and both said B and R. & Co. were insolvent, and shortly after the latter made a general assignment to defendants. Subsequent thereto said note became due and plaintiffs were obliged to take it up, and afterwards their indebtedness to R. & Co. became due. Held, That under the special circumstances of the case plaintiffs were equitably entitled to have their demands set off and applied in extinguishment of their indebtedness to R. & Co., although the liability of plaintiffs upon said note itself was but conditional and had not become fixed at the time of the assignment to defendants.-Rothschild et
al. v. Muck., 173. 3. Equitable set off is never justified save
where other remedies are impossible and where the demand allowed is put beyond reasonable doubt.-Armstrong et al. v. McKelvey et al., 367,
1. A sheriff may justify a return of nulla
bona to an execution issued upon a judgment after he has levied upon property under the preliminary process of attachment issued in the action before judgof inquiry, plaintiff, without proof, is en-
culty between them, and testified that
ment; but he is liable for his error in
Bk. of Buffalo v. Elliott, 242.
of execution, unaccompanied by proof of
after diligent search he cannot find the
that it ever existed.-Id.
sheriff conditioned for the faithful per-
et al., 492.
assignee in bankruptcy at auction and bid
2. An agreement to convey embraces an
agreement to sell, and an obligation as-
simple contract.-Martin v. Colby, 358.
of a deed of a portion of the premises, be-
question the obligation to pay for im-
pears to the contrary that a party is able
Lilly et al., 354.
he can the evidence on the part of plain-
aside on the ground that the damages are
proper evidence is admitted before the
be set aside.-Id.
to accept a conveyance less valuable than
made a crime.-Darrow v. The Family Fund Soc., 310.
7. When it is made to appear that a reason
able doubt exists as to the validity of a title the court will not compel a purchaser to take a title, but will leave the vendor to his action for damages. - Fer
ris v. Plummer, 467. 8. An objection based on a decision of a
General Term cannot be considered captious nor unreasonable on the part of a
purchaser.-Id. See ADVERSE POSSESSION, 3; CONTRACT,
SUMMARY PROCEEDINGS. 1. Semble, That in summary proceedings
the question of fraud in obtaining an alleged lease cannot be litigated. The tenant is confined to denials and cannot make affirmative allegations therein.Becker et al. v. Church, 134.
See MANDAMUS, 8; N. Y. CITY, 4; POOR.
STATUTE OF FRAUDS.
See FRAUD, 10.
STATUTES. 1. The provisions of the appropriation acts
of 1874 and 1875 in relation to the letting of contracts for work at the Buffalo State Asylum referred to future work and future contracts.--McMaster v. The State, 181.
See ASSESSMENTS, 3, 5; ASSIGNMENT FOR
CREDITORS, 4; EMINENT DOMAIN, 1; LIFE INSURANCE, 10; MUNICIPAL CORPORATIONS, 1; N. Y. CITY, 5; RAILROADS, 14.
See EXECUTION, 1 ; PRACTICE, 23; RECEIVER,
STOCKHOLDERS. See CORPORATIONS, 1, 8; LIMITATION, 1;
SUPPLEMENTARY PROCEEDINGS. 1. Where an order is made by a justice of
the Supreme Court to examine a nonresident debtor who has a place of business in another judicial district, the order must be made returnable before a judge of that district. --Browning v. Hayes,
26. 2. There is no remaining provision of the
statute authorizing a judge, in proceedings supplementary to execution, to order the application towards the payment of a judgment, or the delivery or transfer to the receiver for such purpose, of any other than personal property of the
judgment debtor. -Smith v. Tozer, 252. 3. A direction in an order that a judgment
debtor assign or convey real estate situate in the State of Illinois is not within the power of the judge, and the judgment debtor, in refusing to assign or to convey such real estate to the receiver,
is not guilty of contempt.-Id. 4. The only manner in which a receiver in
supplementary proceedings can become vested in the real property of the judgment debtor is by filing the order appointing bim, or a certified copy thereof, in the office of the clerk of the county where the property is situated, and its
situs must be within this State.-Id. 5. In case of real estate situated out of this
State the Code of Civil Procedure provides a requisite remedy by action.
Id. 6. Under $ 2, Chap. 309, Laws of 1883, the
surrogate of Steuben County has power, acting as county judge, to grant an order directing a defendant to appear and le examined in proceedings supplementary to execution in a case in which the county judge might have entertained such proceedings at chambers.-McIntyre
v. Allen, 328. 7. T., a judgment creditor of D., instituted
supplementary proceedings, and, after examining D. several days, no further
SUBMISSION OF CONTROVERSY. 1. The court has no power to amend the
Kingsland v. The Mayor, &c., of N. Y., 334. 2. A submission of controversy under $
1279 is limited to such cases as can be followed by an effectual judgment, and cannot be entertained for the purpose of obtaining an injunction.- The Cunard SS. Co. v. Voorhis et al., 468.
SUBSCRIPTION. See NEGOTIABLE PAPER, 1; RAILROADS, 23.
1. Suicide, when the attempt is successful,
is not a crime under the Penal Code. It is only an unsuccessful attempt which is