Volume 1 — Keyes's New York Court of Appeals Reports

<p>An offer to pay what is due, on a contract, provided the other party will give a release for all damages, etc., is not a tender of payment.</p> <p>When the contract has been completed, and the balance due thereon is withheld to compel a release of other claims, the plaintiff has his action for the recovery.</p> <p>Where, by the terms of the contract the commissioners were authorized to make any alterations in the “ form, dimensions, or materials of the work, ” a resolution ordering the excavation to cease at a certain point, or to go no farther is not a violation of the contract.</p>

<p>The administrator is entitled to the possession of the assets of the intestate, and may maintain an action for their recovery. .He is the owner in trust for the purpose of administration.</p> <p>In an action against an executor to recover such assets as come into the hands of his testator, and remained in his hands at the time of his death, it is unnecessary to allege in the complaint that such assets ever came into the hands of the executor. It is sufficient that they came into the hands of his testator, and were unadministored at the time of his death. ,</p> <p>Even where it is shown that the assets have come into the hands of the executrix, it is proper that the action to recover the samé, should be brought against her in her representative capacity.</p>

The appeal in this case is by the defendants from a judgment in favor of the plaintiffs, rendered in the sixth district. The action was brought by the plaintiff as administrator of Sally Dickens, his wife, under the statute, to recover damages resulting to her next of kin in consequence of her death, which it is alleged was caused by the negligence of the defendants. The cause has been twice tried. The verdict rendered on the first trial was set aside by this court.

<p>A gift by a husband to 'a wife will be upheld without the aid of the statutes of ' 1848, 1849, 1860 or 1862, where the rights of creditors are not concerned.</p> <p>The husband may act as the agent of the wife and what he said while acting as her agent at the time of taking a bill of sale, etc., is a part of the res gestee, and therefore competent evidence for the wife.</p>

<p>Questions of fact upon a trial before a judge without a jury, and before a referee, are open to examination only upon an'appeal to the General Term of the court in which the trial took place.</p> <p>If it cannot be made out from the findings whether the judgment is right or - wrong, it will be assumed to be correct and the judgment will be affirmed.</p> <p>Such judgment, to be reversed, must appear to be erroneous by applying the conclusions of law, or the general judgment pronounced, to the conclusions of fact stated in the findings.</p> <p>When, through the inadvertance of counsel, the facts are so presented that it is impossible, without violating well-settled rules of practice, to do justice between the parties, this court has power to suspend the judgment in order to enable the party, whose rights might otherwise suffer, to apply to the court from whose judgment the appeal was taken, for a re-settlement of the case.</p>

<p>No notice is required to be given to the owner of the land, claiming a freehold estate therein, of proceedings to admeasure dower as a mere supplement to an action of ejectment, in which the plaintiff has succeeded in establishing her right of dower.</p> <p>Such proceeding is governed by the provisions of section fifty-five of the title treating of the action of ejectment. (2 B. S., 303.)</p>

This is an action brought to recover damages for the alleged conversion of a quantity of coal, the property of the plaintiff. Griffiths was the sheriff of Ulster county. The defendant, Lefever, was a judgment creditor of one E. Elmendorf, and the defendant Schoonmaker was a co-defendant in another judgment with said Elmendorf, recovered in favor of one Styles.

<p>A paroi license given without consideration, to a party to build a dam upon the land of the licenser and across that portion of a stream included within his boundaries, is not an equitable estoppel operating by way of impediment upon the licenser and those deriving title from him.</p> <p>Equity never aids in subversion of legal rights; but on the contrary, it always assists in their security and preservation, by appropriate remedies, and in furtherance of justice.</p> <p>A mere verbal license to do an act. or a series of acts, upon the land of the licenser, necessarily excludes the idea of a contract right which equity might enforce.</p> <p>The doctrine of the case of Bench v. Kerr (14 S. & B., 207), not law in this state.</p>

James McGregor died in February, 1853, leaving a will with a codicil annexed by which three of his sons, the respondent, the appellant and Gregor were appointed executors. The will' was admitted to probate in December, 1855, after a contest before the surrogate. An appeal was taken to the Supreme Court, and from that court to the Court of Appeals, from that order, and much other litigation arose under the will delaying the issuing of letters testamentary.

Suit to foreclose a mortgage. The plaintiff isdhe-daughter of William Bucklin and Esther his wife, both now deceased. The mortgage was contained in. an instrument executed by the plaintiff’s father, William Bucklin, dated ’September 22, Í836, and which was duly acknowledged and recorded on the same day. It recites that .Esther.

<p>In the treaties on the part of Ogden and Fellows with the Seneca and also with the Tuscarora natigns of Indians, made in the presence of commissioners on the part of the state of Massachusetts, and commissioners on the part of the United States, for the purpose, on the part of said Ogden and Fellows, of purchasing from said nations their respective pre-emption right to their respective reservations in this state, the United States assumed no obligations, and undertook the performance of no duties, in respect to the said Ogden and Fellows, in their purchase of said reservations.</p> <p>Neither of said treaties contained any stipulations or agreements of anything to be done or performed in respect to said purchase, on the part of the United States.</p>

The action was upon a promissory note by an indorsee against the maker and indorser. It was made by the defendant, Joseph L. Chappell, to the order of the original defendant, James Chappell, whose executors have been made defendants in his stead, and was dated September 29, 1857, and was for the payment of $265 in two months from date, at a bank. The defense was usury.

<p>Defendants cannot claim the opening of an alleged settlement on the ground ot a mistake, without establishing affirmatively the existence of such mistake.</p>

This action, in the nature of a creditor’s bill, was brought by plaintiff, as assignee of a judgment obtained by David Lane, James G. Carpenter, and Henry W. Miller, against Lutz, Doll & Germann, upon the return of an execution unsatisfied, to set aside a sale made by them in May, 1854, of the “Manhattanville line” of stages, horses, etc., to the defendant, Lambrecht; and also to set aside an assignment, made at the same time, by Lutz, Doll, and Germann, to Brewer.

Action to foreclose a mortgage, brought in the Superior Court of the city of Hew York. Michael Cunningham, one of the defendants, in May, 1861, executed and delivered his bond and mortgage, for the payment of the sum of fifteen hundred dollars, to Samuel W. Dunscomb, or his assigns. Dunscomb on the 13th day of May, 1862, assigned and transferred the bond and mortgage to the plaintiff, who on the 16th day. of June, 1862, commenced this action to foreclose the mortgage.

The action was against Burdick, Finn and Gandall. The complaint averred that the defendants, Burdick and Finn, made their certain copartnership promissory note in the words and figures following, that is to say: “Fort Edward, July 11 ¿4, 1858. “§256.58. Four months after date, for value received, we promise to pay to the order of J. K. Gandall, two hundred and fifty-six dollars and fifty-eight cents, at the Bank of Fort Edward, with interest. .

The plaintiffs held a mortgage given in February, 1S56, for $5,500, on two building lots in the city of Hew York. In March, T857, certain parties who had become owners in fee of the mortgaged premises contracted to sell the lots to the defendant, Howell, he agreeing to erect a dwelling-house on each lot, of a description given in such agreement and to complete the same by the 1st day of March, 1858.

The action was brought by the plaintiff, a married woman, to recover the possession of certain personal property in carpets and paintings, alleged to belong to her, which was taken by the defendant’s intestate, as sheriff of the city and county of New York, under an execution issued upon a judgment recovered in favor óf one William L. Martine against her husband. ♦ The case was tried in the New York Common Pleas, before his honor, Judge Brady, in April, 1861, and the plain…

Court affirming a decree of the surrogate of Kings county, made upon the final accounting of the appellant, Clapp, as the administrator with the will annexed of Simon Kichafdson, deceased.

The statement upon which the judgment was entered was in these words: “ James Acker ) vs. James A. Acker. “I hereby confess judgment in this action in favor of James Acker, plaintiff, for the sum of three thousand five hundred and thirty-six dollars, and authorize judgment to be entered therefor against me.

These are appeals by William Clements, Jacob Eyder, and Cornelius Carpenter and others, as the plaintiffs in these several judgments rendered in the Supreme Court, upon confession against Daniel Gerow, from three several orders of the Supreme Court, setting aside said judgments on the application of the Middletown Bank, for a supposed defect in the statement of confession.

The plaintiffs are a corporation, incorporated hy act of Parliament of the United Kingdom of Great Britain and Ireland, passed in 1821, and are authorized hy their charter to make insurance on lives. They have never been incorporated in this State. They have sixty-eight agencies in the United States, and twenty-eight agencies in different counties in this state, for the purpose of receiving applications for insurance.

The action was in the nature of trover for two horses, a wagon, harness, etc. One Andrew Roosa was the former owner of the property, and he mortgaged it to Schoonmaker, the original plaintiff, in December, 1851, to secure a debt of $175, payable September 1st, 1852. By the terms of the instrument, the mortgagee had a right 'to take possession of the property, and sell the same, if at any time he should deem himself insecure.

Action- of ejectment to recover the possession of certain lands in the village of Fredonia, in the county of Chautauqua. The trial was had in that county before Justice Davis without a jury, and resulted in a judgment for the defendants,' which judgment was affirmed at a General Term of the Supreme Court. From the latter judgment the plaintiff appealed to this court. The facts are sufficiently stated in the opinion of the court.

The action was for the claim and delivery of a quantity of ■ upon the condition that he should pay for the same in his notes indorsed by a firm in the city of Hew York, and which ■condition had never been complied with, and hence title had never passed to White.

The action was brought by the plaintiff, as assignee upon two judgments rendered in a justice’s court in favor of George W. Bulkley and Gersham Bulkley, against the defendant on the 18th of April 1846; one for §101.15, and the other for $76.15. These judgments were duly assigned to the plaintiff on the 31st of March, 1856. This action was commenced July 10th, 1856. The defense was the statute of limitations.

The defendants having purchased the standing trees on a lot of land in the county of Saratoga, agreed with the plaintiff to cut, prepare and transport to the Hew Tork market for them, from the lot, dock logs and piles of specified sizes. The dock sticks were to be either 31, 36 or 41 feet in length, and not less than seven inches in diameter at the small end; and the piles fourteen, inches in diameter at the large end, and from forty-five to fifty feet long.

The action was brought to compel the defendants to discharge and surrender a certain bond and mortgage in their hands, and to have the mortgage canceled of record on the ground that the debt had been paid and satisfied. The lands in question are situated in the county of Broome, in what is known as the Bingham patent. The bond ánd mortgage in question were executed on or about the 19 th of June, 1826, to secure the payment of $4,664.66 by installments.

This action was commenced by the plaintiffs in the Supreme Court in equity, in September, 1847, to have their right to a stream of water declared and established; to obtain a perpetual injunction against the diversion of the stream from their factory, and to recover damages for previous diversions.

This action is brought to recover the amount of an award made by commissioners of assessments to the plaintiff’s testator, for a piece of land taken and appropriated by the defendants for the purposes of a ship-canal.

Appeal by defendant from judgment of the Superior Court of Buffalo in favor of plaintiffs. In the month of February, 1857, four parties, Bidwell, Banta &.

<p>Where the defendant has once been in possession of plaintiff's chattels, but has parted with the same, claiming ownership, a refusal to deliver them up on demand of the plaintiff will render him liable for the same.</p> <p>Where a party having possession of goods belonging to another, parts with hem without the authority of the owner, and the party holding such goods refuses to deliver them to the owner on demand, he will be liable in detinue equally with the party refusing.</p>

■ The action was brought by the plaintiff, as assignee of Anthony E. Hitchings, to recover for work done and materials furnished under a… Held: as a conclusion of law, that the plaintiff | was not entitled to recover, and judgment was thereupon entered in favor of the defendants. From this judgment the plaintiff appealed to the General Term of the Supreme! Court in the first district, where the judgment was affirmed, and he thereupon brought his appeal to this court.

Appeal, from an order of the General Term of the Supreme Court, in the sixth district, dismissing an appeal from a judgment at Special Term to General Term. A judgment was rendered against the defendant June 25th,. 1857, for $985.94, upon a verdict at the Circuit. The defendant appealed from the judgment to the General Term, and for the purpose of staying proceedings upon the judgment, filed an undertaking, •with sureties, who duly justified on the 8tli of August, 1857.

<p>This ease presents merely a question of the construction of the language constituting a clause of the contract.</p> <p>A patent ambiguity in a written contract cannot be explained by paroi evidence.</p>

<p>Where a party wishing to purchase chattel property which is mortgaged, pays to the mortgagee a part of the consideration of the purchase, upon, an understanding that the chattel shall be released, and the mortgagee will look to the mortgagor for the balance, such transaction is in itself a release of the mortgage,</p>

The action was brought in December, 1851, to recover the amount of four promissory notes made by the defendant; one dated March 2d, 1846, for $15; another August 10th, 1846, for $150; another November 18th, 1846, for $13; and another April 2d, 1849, for $99.84. The defense set up was payment and a set-off against Elijah Brown, an attorney-at-law, the former holder of the notes, and that the plaintiff was not the owner and holder.

The plaintiff sold to the defendant a tract of land for $1,500, and received in payment therefor lot number ten, on a map of lands made for 8. Cowell, lying on River street, in the city of Troy, valued at the same sum.

The action was for the escape of one Doughty, who was committed to the custody of the late James C. Willett, sh eriff of New York, under an execution issuing out of the third district court of the city. On the trial it appeared, that on the 12th November, 1857, the plaintiff recovered judgment against Samuel H. Doughty for §267.50, in the third district court of the city of New York.

<p>If a person admitted to the liberties of the jail limits is without such limits by virtue of a valid legal process which affords justification to the officer taking him thence, it is not to be deemed an escape within the meaning of the statute.</p> <p>When a person confined on the limits of a jail within this State is taken by virtue of the warrant of the speaker of the house of representatives to Washington to answer for a contempt in not appearing before a committee of the house when duly summoned, it is not an escape from such limits.</p> <p>To constitute an escape there must be some agency of the prisoner, or some wrongful act by a third person, against whom the law gives a remedy.</p>

. Appeal from an order of the Superior Court- of Buffalo setting, aside a verdict' rendered at the trial of the same court in favor of the plaintiffs, against the defendants, Cowing and Buell, and ordering a new trial, with- costs.

The action was to recover the amount of a draft or check, drawn by defendant, as follows: “New York, March 16, 1859. “L. S. Lawrence & Co., bankers, pay to Mr. William Fish, or order, 3,000 25-100 dollars. $3,000 25-100. “ISAAC JACOBSOHH.” Which check, the complaint averred was drawn by the defendant at the city of New Orleans on the 16th March, 1859, and delivered by him to the plaintiff, the payee named therein, in settlement of a balance of account due by Bernard Ulman,…

. The judgment in this case was rendered in- the county court of Erie county, on 30th April, 1859, under the provisions of the mechanics’ lien law. The specifications and papers required by the statute were filed in the cleric’s office, on 24th December, 1858. On 23d of February, 1859, a notice requiring the defendant to appear in the county court, on the fourth Monday-of March, and submit to an accounting, was served on defendant, dated 22d February, 1859.

This action was brought by the plaintiff to recover, for damages alleged to have been sustained by him by the breach, on the part of the defendants, of a contract safely to carry Certain goods from Geneva, in this State, into the State of Virginia, by reason whereof the said goods became wet and injured.

Action for construction of will. On the 25th December, 1858, Ann P. Sherwood, who owned personal estate of the value of $18,000, and real estate of the value of $4,500, died, leaving a will executed some nine days before her decease. This instrument contained the following bequests: “ Second. I give and bequeath unto the American Bible Society the sum of two thousand dollars. “ Third. I give to the American Tract Society two thousand dollars. “ Fourth.

<p>A constable levying upon the interest of defendant in execution, in property legally held by a third party in virtue of an existing lien, cannot remove the property from the possession of such third party; and if he does so he will be liable therefor.</p>

The appeal in this case is by the defendant, George 0. Warring (who was sued with James E. Warring and James E. Chapman), from a judgment in favor of the plaintiff, rendered in the fourth district against all the defendants.

<p>The provision of the State Constitution respecting trial by jury is not that it shall be used in all cases, but in all cases in which it had been theretofore used.</p> <p>The practice of referring issues, the trial of which would require the examination of long accounts, has prevailed by the practice of the courts from time immemorial, and is not in conflict with the provisions of the Constitution.</p>

The action was by the plaintiffs, a banking association, to obtain payment from trust property in the hands of the defendant Kirkland, of a judgment for $3,138 damages and costs recovered in December, 1855, against the defendant Mrs. Sarah Eames (now deceased), as a stockholder to the amount of $3,082 in the Manchester Manufacturing Company, which was dissolved in August, 1854.