Volume 1 — New York Miscellaneous Reports

<p>An order granting leave to amend upon terms, entered by consent of the parties, is not appealable.</p>

<p>Where on appeal from an order, resettling a former order, the facts are disputed, the certificate of the judge who granted the order, as to what. occurred before him, is conclusive.</p>

<p>The opinion states the case.</p>

<p>Appeal from judgment entered on a verdict in favor of plaintiff.</p>

Appeal by defendants from order denying motion to set aside order for examination of said defendants as witnesses before trial. The opinion states the case.

<p>If an administrator rejects a claim against the estate of his decedent, personal notice thereof prast he given to the owner of the claim.</p> <p>Plaintiff’s claim against the estate of defendant's intestate was presented to the defendant in writing, November 17, 1890. Written notice of the rejection of said claim was left at plaintiff’s house in her absence, with directions that it be given to her on her return. She did not return until December 6, 1890. On defendant’s refusal to refer the claim under the statute, action was commenced May 33, 1891. Held, that the claim was not barred by the Statute of Limitations. (Code Civil Proc. § 1833.)</p>

<p>Appeal from an order sustaining a demurrer and from the interlocutory judgment entered thereon. The opinion states the case.</p>

<p>The opinion states the case.</p>

<p>In an action by the payee of a note against the maker, the answer admitted the making of the note and did not deny any of the allegations of the complaint, and alleged affirmatively, that the note was given without consideration under an agreement that the same was to he paid only out of the profits of a certain business that had realized no profits. Held, that a denial of the right to open and close, excepted to, was error entitling defendant to reversal of a judgment against him.</p>

<p>Appeal by defendant from judgment entered on verdict for plaintiffs.</p>

<p>The plaintiff, doing business in South Carolina, having on September 15, 1891, sold to defendants, doing business in New York city, 200 barrels of cotton seed oil for October delivery, in New York city free onboard, shipped three lots of fifty barrels each, and at the time of each shipment, notified defendants by mail of the same who received the oil without complaint. Held, that a shipment in the same manner and reaching its destination on October thirty-first, was good though defendants did not receive it until next day.</p>

Action to recover a sum of money found by plaintiff in a bank where defendant was cashier, and left with him to keep for the owner. The following opinion was given on rendering judgment for defendant at the trial.

<p>A decree of a Surrogate's Court directing the payment of money must be satisfied as if it was a judgment of record.</p> <p>The certificate of satisfaction of a decree of a Surrogate’s Court directing the payment of money, was executed out of the state, acknowledged before a notary public, and had attached thereto a certificate of the county clerk, that the officer taking the acknowledgment, was a notary public, duly commissioned, etc... and was duly authorized to take the same. Held, that the certificate was insufficient, in that it failed to specify, that the officer taking the acknowledgment, was authorized by the laws of the state to take the proof and acknowledgment of deeds.</p>

<p>Appeal from an order of the Special Term of the Superior Court of Buffalo, denying a motion to dismiss defendant’s appeal, etc. The opinion states the ease.</p>

<p>Defendants’ agent employed plaintiff to render certain services in the interest of his principals, promising to pay therefor §300. On a claim being made by plaintiff for that amount, defendants repudiated the agent's authority in that respect, told her it was too much and refused to pay. Held, although the evidence justified an inference that the agent was authorized to employ plaintiff to render the services, there was no evidence that defendants ever agreed to pay, or ratified their agent’s agreement to pay plaintiff the amount she claimed.</p> <p>Under a complaint in an action upon a special contract to pay a given amount for services rendered, ho recovery can be had in absence of proof of the value of the services.</p>

<p>Appeal from a nonsuit. The opinion states the case.</p>

<p>Appeal by defendants from a judgment entered upon a verdict for plaintiff on a new trial.</p>

<p>Appeal by defendant from judgment entered on verdict for plaintiff. The opinion states the case.</p>

<p>Appeal from order directing defendant to furnish bill of particulars.</p>

Appeal by defendant, Samuel McMillen, from an order directing his examination before trial for the purpose of enabling plaintiff, Charles Gr. F. Wahle, as executor, to frame his complaint.

<p>Appeal by defendants, DeWitt C. Bates and others, from judgment in favor of Louis M. Howland, in an action upon a note.</p>

<p>If without the aid of a broker employed to sell or rent, the owner effects a sale or renting, the broker is entitled to no commission.</p> <p>Where the evidence warrants a finding by the jury in plaintiff’s favor, that she was the procuring cause of the letting, the verdict should stand unless error was committed in the exclusion of testimony tending to prove that other agencies brought about'the result.</p> <p>Evidence of conversations by defendants’ officers with persons in plaintiff’s absence was properly excluded as immaterial.</p>

<p>Appeal from an order of the General Term of the City Court reversing an order of the Special Term of that court, denying a motion to vacate an order of arrest in an action by Philip Markey against Charles Herbert Diamond to recover for false representations.</p>

<p>Appeal from a judgment of a District Court.</p> <p>Action to recover the amount paid for a railroad ticket, by the terms of which plaintiff and the members of his family were entitled to twenty-five trips upon defendant’s railroad within one year from its date, upon presentation of the ticket to the conductor and- ferry-master on the occasion of each trip, the ticket having been issued in consideration of the payment of a reduced rate of fare, and defendant having refused to issue a duplicate in lieu of the original, which was lost before its use was attempted.</p>

<p>In an action to recover moneys loaned, the fact of the loans and some repayments was admitted, but defendant claimed to have made certain other payments; this plaintiff denied. Held, that a judgment in plaintiff’s favor would not be disturbed.</p> <p>The failure of a party to use a book or document produced upon his notice does not make it evidence against him.</p>

<p>In an action on an undertaking given upon obtaining an order of arrest, it was admitted that plaintiff was sued; that the order of arrest obtained upon giving the undertaking sued upon was vacated by consent, after plaintiff’s arrest, and that plaintiff herein paid $250 for his release. Meld, that a verdict for plaintiff was properly directed.</p>

<p>Where the objection that a complaint does not state facts sufficient to constitute a cause of action is not taken until after trial, it is sufficient if the elements essential to a cause of action are alleged in the complaint.</p>

<p>An application "by a sheriff under Code Civil Procedure, section 1431, authorizing the substitution of indemnitors in place of the sheriff, may be granted without requiring him to furnish additional security to answer the final result of the litigation.</p>

<p>Appeal from judgment in favor of plaintiff.</p>

<p>Promises to marry, wrongfully broken, justify a recovery of damages.. These should include (a) all expenses justly incurred upon the faith of the violated contract and by reason thereof, and all pecuniary loss directly caused thereby; (b) a sum sufficient in the discretion of the jury, calmly and judicially exercised, to vindicate plaintiff’s character; (c) and in case defendant is shown to have acted maliciously, unfeelingly or with evil or dishonest intention, a further award must be made sufficient to be a punishment and a warning to others, and thus a safeguard to society.</p> <p>In an action for a breach of promise to marry, the jury rendered a verdict for plaintiff. On appeal therefrom, held, that while .the jury is the-primary and final arbiter of damages, to the appellate courts is intrusted and upon them enjoined the duty of reviewing verdicts which are challenged by appeal; that the verdict in question having been illegally-influenced, a new trial should he had.</p>

<p>A promise made by L. with F. to pay the debt of S. if F. would release S. and rely solely upon L.’s promise to pay, is an original obligation not within the Statute of Frauds and need not be in writing.</p> <p>Plaintiff made a contract with one Bell to do certain work about the latter’s premises. Before the completion thereof, said premises were conveyed to one Schmitt, at whose request plaintiff finished his work. Thereafter, defendant requested plaintiff to release Schmitt from the payment of said debt, and also to release the premises from a mechanic’s lien which he had previously filed against the same for the amount of such work, and verbally promised plaintiff that he would pay said claim. Said releases were given and thereafter defendant refused to pay, on the ground that his promise being verbal was void. Meld, that a judgment for plaintiff should not be disturbed.</p>

<p>Appeal from judgment entered on a verdict of the jury in favor of plaintiff.</p>

<p>Appeal from, judgment entered on a verdict of the jury directed by the court in favor of the plaintiff.</p>

<p>A married woman may make contracts and is liable thereon as if she were a feme sole, but such is not the case where she contracts as a married woman and not in her individual capacity ; in matters concerning the repair or management of her husband’s household or premises, she is only the agent of her husband, and cannot be held as a principal.</p> <p>The defendant, a married woman, applied to plaintiff to paint and decorate a flat occupied by her, which work was done according to agreement. Plaintiff, in payment therefor, accepted the promissory note of defendant’s husband, which was not paid at maturity. Plaintiff sued and recovered judgment thereon in New Jersey. In an action against defendant for recovery of the amount of the contract price, held, that the acceptance of the note and subsequent suit and judgment thereon, indicated that plaintiff intended to give credit to the. husband and not to defendant personally; that the evidence showed that plaintiff recognized defendant as a married woman and dealt with her as such.</p>

<p>An answer which alleges no knowledge or information sufficient to form a belief as to the truth of all the other allegations contained in the complaint, is bad as a conjunctive denial.</p>

<p>In an action against defendants as stockholders in a domestic corporation,, the complaint alleged the recovery of a judgment against the corporation, together with the issuing and return unsatisfied of an execution. The defendants denied any knowledge or information as to the fact of the judgment and execution, and rested thereon, for a defense. On proving the facts disputed, the answer, on motion of plaintiff, was stricken out as sham. Held, proper; that as the matters in dispute consisted of public records, the ignorance thereof by defendants was intentional.</p>

<p>The opinion states the case.</p>

<p>A lease provided that the landlord might enter the premises for the purpose of making repairs and alterations, and that the tenant would make no claim for damages by reason thereof. In an action for rent, the tenant defended on the ground that such repairs thereafter made rendered the premises untenantable. Held, that a direction of a verdict for the landlord was justifiable.</p>

<p>In an action against a street railroad company for negligently running its car into plaintiff’s cab it appeared that plaintiff’s driver had temporarily stopped on defendant’s track to receive directions and while there met with the accident. There were snow banks on each side of the street, which prevented a nearer approach to the sidewalk. Plaintiff’s driver did not see the car and had no warning of its approach. Held, that it was a case for the jury on the question of negligence, and as the verdict was sustained by the evidence, the damages inexcessive and no errors committed, the judgment should be affirmed.</p>

<p>Appeal from order reversing order granting new trial.</p>

<p>Appeal from order made by Judge Fitzsimons.</p>

<p>In an action for false imprisonment want of probable cause must be proven. Plaintiff, while walking peacefully on a public highway, was arrested by a police officer, who acted at defendant’s instigation, was compelled to go to the station house, where defendant made complaint, was locked up in a cell all night, and on the following morning was again taken by the officer through the public streets to the police court, where defendant charged him, in a written complaint, with using threatening, abusive and insulting behavior, with intent to provoke a breach of the peace. Plaintiff was discharged by the police justice. In an action for false imprisonment plaintiff recovered a judgment. Held, that in view of his testimony upon the trial and the criminal proceedings, and their termination, by his discharge, the trial justice did right in submitting to the jury the question “whether or not the defendant in such proceedings acted without probable cause.”</p> <p>The discharge by the police justice of plaintiff was prima, facie evidence of want of probable cause and sufficient to throw upon defendant the burden of proving the contrary. The testimony of plaintiff and the proceedings taken upon the criminal charge showed that defendant acted in a wanton and reckless manner, and willfully and knowingly preferred a false charge, which circumstances alone established that want of probable cause from which malice might be inferred.</p>

Appeal by plaintiff from an order granted under sections 1421-1423 of the Code of Civil Procedure, substituting as parties defendant, the indemnitors in place of sheriff.

<p>Plaintiff agreed with one C., for a stipulated price, to furnish and hang-certain gas fixtures in a house by a fixed day. Thereafter, for a valuable consideration, defendant guaranteed with plaintiff, in writing, the-payment thereof on a day certain. In an action on the guaranty, held, that the failure of 0. to have the building in condition to hang the fixtures on the day named, and the fact that they were only partially up. at that time, did not relieve defendant of his obligation to pay therefor; that plaintiff was entitled to recover, even though the contract with C. was only substantially performed.</p> <p>Held, also, that plaintiff was not required to actually pay to defendant the consideration price mentioned in the guaranty before he received the principal sum. A tender thereof required defendant to perform his part of the contract, and his failure to do so justified the suit in question.</p>

<p>Appeal from judgment in favor of plaintiff, entered on a verdict of a jury.</p>

<p>’Appeal from judgment in favor of defendant.</p>

<p>Where money is placed with a party as a deposit, subject to the call of the owner without any arrangement being made for interest thereon, it does not begin to draw interest until there is a demand and refusal to pay.</p> <p>It is well settled that where interest is allowable as a penalty and not by agreement, satisfaction of the principal obligation bars a claim for the interest.</p> <p>Claims against a decedent’s estate withheld during lifetime and sought to be enforced after death, should be carefully scrutinized and only admitted upon satisfactory proof.</p> <p>The widow of S., one of the executors of his will, presented a personal claim against his estate for interest on a sum of money belonging to her, held by testator in his lifetime, the principal of which she acknowledged full payment of. Held, that there being no direct evidence of the circumstances or conditions under which said money was received and held by the testator, whether by way of loan, or as a deposit, or as the agent of claimant to invest for her benefit, she could not recover.</p>

Action for injuries inflicted on plaintiff by defendant’s servants in ejecting him from the platform of defendant’s railway. Plaintiff had a verdict in the sum of $16,000.

Appeal by defendant from a judgment of the District Court in the city of ¡New York for the ninth judicial district in favor of the plaintiff. Action by the beneficiary to recover upon two policies of insurance on the life of her husband.

<p>A complaint alleged that defendants conspired for the purpose of ruining and injuring plaintiff’s assignor, and used in carrying out such conspiracy a warrant of attachment issued in an action by one of the defendants herein against plaintiff's assignor, for the purpose of unlawfully seizing the property of plaintiff’s assignor and procuring the delivery thereof to one of the defendants. Held, that evidence that the judgment in the attachment suit was entered on default, was admissible to negative the alleged conspiracy.</p>

Appeal by plaintiff from an order granting a compulsory reference, on motion of defendant. Action to recover the price of coal and wood and labor.

<p>Plaintiff furnished the house of defendant with gas fixtures under a contract with an intending purchaser who failed to carry out the contract of purchase. Held, that a complaint which alleged a demand of defendant for the return of the goods or that he pay for the same, a refusal to either return or pay for them, and that thereby defendant converted said goods, etc., to his own use, and has become and is liable to pay plaintiff therefor, states a cause of action on contract, and not for conversion.</p>

<p>Plaintiff, a girl of fifteen years, was employed in defendant’s laundry, and. while smoothing out wrinkles in the muslin covering of the rollers of the ironing machine, at which she was at work, caught her fingers in the rollers and amputation became necessary. On the trial, it appeared that the foreman knew it was dangerous for any one to put their hand' on the moving roller, though he had instructed plaintiff how to take out the wrinkles while the roller was moving at the usual speed. Held, that a motion to dismiss the complaint was properly denied.</p>

Appeal by the plaintiff from a judgment recovered against him by the defendants for the sum of $5,989.08 on their counterclaim, entered on the fifteenth day of January, 1892, upon the verdict of a jury, and from an order denying plaintiff’s motion for a new trial.

<p>It is always presumed that a jury in the proper discharge of its duty, followed the instructions of the court.</p> <p>'Jurors cannot he heard by affidavits, or otherwise, to impeach their verdicts.</p>

<p>In an action to recover a balance due on account of goods sold and delivered the defense consisted of a denial, and that the materials furnished, etc., were inferior to those contracted for. On the trial plaintiff and defendant each produced two witnesses, their testimony constituting all the evidence in the case. The only issue presented was whether plaintiff had substantially complied with his contract. After a verdict for plaintiff, defendant moved for a new trial, which was denied. Defendant, on the trial, did not ask for a nonsuit or move the court ta direct a verdict, nor were any exceptions taken by him to the judge’s charge. Held, that the case involved a question of fact which was fairly submitted to the jury, and as no errors were committed on the trial, the judgment should be affirmed.</p>

<p>Plaintiff entered into a written agreement with defendants for 1,000 reams of paper at a stipulated price. Defendants failed to deliver on demand, whereupon plaintiff went into the open market and purchased the same at a loss. In an action to recover therefor, defendants admitted substantially all the material allegations of the complaint, and for a defense, by way of avoidance, alleged fraud in the procurement of the contract, and further, a custom of trade to modify said agreement. On the trial, evidence of the existence of such trade custom was rejected. At the close of the testimony, plaintiff’s attorney asked the court to direct a verdict for plaintiff, which was granted. Defendants’ attorney thereupon moved that the case be allowed to go to the jury on the question of fraud, which was denied. Held, that the rulings of the trial justice were proper; that as the contract was clear, unequivocal and free from any ambiguity or doubt as to the meaning of the language therein used, and as there was no evidence of any conversation between the parties at the time of or prior to the signing of the contract, other than that embraced therein, there was no evidence of fraud to submit to the jury.</p>

<p>Plaintiff recovered a judgment against defendant for services rendered it after incorporation and before the election of its first board of officers. It was proven that the services performed were clearly for the benefit of the defendant and was accepted by its incorporators and on the authority of all its officers; defendant, at the close of the case, moved for the dismissal of the complaint, and plaintiff thereupon moved for judgment. Held, that defendant, from the time of the granting of its charter, became a corporation for all intents and purposes; that its incorporators were liable from that time for all acts, whether it had a president or other officers; that the officers were only the medium through which it acted, and the incorporators could delegate its power to any of its members, or require all to act together. That by making its motion to dismiss, defendant thereby left the matter with the court, and plaintiff thereupon having moved for a direction in his favor, the question became one of fact for the court; that judgment for plaintiff was properly rendered.</p>

The defendant is the sole executrix of Delia Bathgate, deceased, and as such, she executed an assignment to the plaintiff, of a mortgage held and owned by the said Delia Bathgate, during her lifetime, made by one Ann McKiernan to the said Deha Bathgate. The assignment bears date and was executed on the sixteenth day of July, 1890.

<p>In an action by plaintiff, a member of the defendant benefit society, to recover a benefit due him upon the death of his wife, the answer specifically set forth the requirements of the constitution, rules and by-laws. Held, that it was not error to allow plaintiff to prove by parol so much of said by-laws as the answer contained.</p> <p>It seems, that defendant is estopped from questioning the physician’s certificate of the good health of plaintiff’s wife where it is proven that plaintiff had paid dues as a single member before his marriage, and after-wards as a married man, and so continued to pay until the death of his wife, all of which were accepted by defendant,</p>

Appeal by defendant from order denying new trial and from judgment, entered against him on verdict rendered by a jury, in an action by a husband to recover for damages sustained by him by reason of personal injuries inflicted on his wife through the negligence of the defendant.

<p>Appeal by defendants from judgment entered against them on verdict rendered by jury and from order denying new trial.</p>

Appeal by defendant from judgment entered against him on verdict directed by the court and from order denying new trial.

<p>Appeal by defendant from judgment entered against him on verdict returned by jury.</p>

<p>In an action against husband and wife to compel specific performance of a contract for the sale of real estate made by the authorized agent of the husband, the husband denied the making of the contract, and the wife demurred on the ground that the complaint did not state a cause of action. Judgment was rendered directing specific performance, plaintiff to deduct from the purchase money the value of the wife’s dower right should she not join in the conveyance. The judgment overruling the demurrer, directed the wife to unite in a conveyance of her dower, but there was no order overruling the demurrer. Held, that an appeal by the wife should be dismissed.</p>

<p>A railroad company, for the safety of its employees, is hound to use suitable care and skill in furnishing a safe and proper track and roadbed. Plaintiff, a brakeman on one of defendant’s trains, while forcing an intoxicated passenger to get off the side step and into the car, was knocked off and injured by a train moving in an opposite direction. . It appeared that the tracks were improperly laid, being too close for trains to pass safely; that the outer rail was not raised, and that the curve was made of straight instead of curved rails; that it was not safe for trains to pass each other on the curve. There were no rules that trains should not pass each other upon the curve, or, if they did, that they should slacken speed, or that all persons must keep off the steps while rounding the curve. Held, that these facts unexplained, would warrant a jury in finding defendant guilty of negligence, and a motion for a nonsuit was properly denied.</p>

<p>Appeal from judgment in favor of plaintiff and from an order denying a motion for a new trial. The opinion states the case.</p>

<p>In an action against defendants as partners, the judgment-roll in an action brought by a third party against defendants in which judgment by default was entered against the defendant herein, as a member of the firm, was admitted in evidence in this action. Held, that the judgment by default was evidence of the partnership of the defendants herein and that a dismissal of the complaint was error.</p>

The facts are stated in the charge of the trial justice, Osbobne, J.: “ Gentlemen of the J uby — There is just one issue in this case for you to determine, and as you determine that issue so will your verdict be, and that is what was the bargain or arrangement or agreement between these parties on the 1st of June, 1891, when the plaintiff went to the defendant’s glass works and entered into this transaction in reference to these lamps and chimneys. “ It is not disputed that,…

-Action to recover' the value of a diamond ring of the alleged value of $150, the property of plaintiff and converted by defendant to his own use. Answer, a general denial.

<p>Appeal from a judgment entered upon the verdict of a jury and from an order denying defendant’s motion for a new trial made upon a case and exceptions.</p>

<p>A statute (Laws 1873, chap. 151), providing an adequate remedy at law for the refusal of a company incorporated in this state to issue a new certificate of stock in place of one issued by it, but lost or destroyed, does not divest the court of its equity powers over the same subject.</p>

<p>The proceedings of the board of police of New York city, while acting judicially, are to be reviewed with liberality, with a view of sustaining rather than reversing their judgments.</p> <p>The relator, a member of the New York city police force, was fined three days’ pay for neglect of duty in not arresting a brother officer, who was in a saloon, “ loaded with rum.” The relator, who was at the time in uniform, though nominally off duty, was taken by the sergeant before the captain, who made a formal charge against him of being under the influence of liquor and unfit for duty, and after trial had before the police board, relator was dismissed from the force. Held, that the fine for neglect of duty, was no bar to the second charge; each charge was complete in itself without reference to the other.</p>

<p>.In an action to recover for personal injuries to a boy thirteen years of age, the court having charged that the plaintiff was sui juris, on request of plaintiff’s counsel also charged, that the same degree of care is not exacted from an infant as from an adult. Held, no error.</p>

<p>Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.</p>

<p>Appeal from judgment entered on verdict directed in favor of plaintiff.</p> <p>The facts are stated in the opinion.</p>

<p>Premiums paid upon policies of insurance, void ab initio, may be recovered back in an action for money had and received.</p>

<p>Plaintiffs declared upon and proved a special contract, by which the defendant’s intestate, prior to his death, agreed to pay plaintiffs a specified sum of money as a fee, if they succeeded in accomplishing certain results, which they ultimately did. The trial judge directed a verdict in favor of plaintiff. The evidence of M., plaintiff’s clerk, as to the contract, relied upon, was full, positive, clear and uncontradicted. Held, that the ruling of the trial justice was proper; that where an unimpeached witness gives testimony uncontradicted, either by witnesses or circumstances, and, moreover, natural, plausible and proper, such testimony is conclusive, must be accepted by the court, and need not be submitted to the jury.</p>

<p>On an appeal from an order striking out defendant’s answer as sham, the proofs on the part of plaintiff clearly showed that defendant never supposed he had any defense to the action, and that he practically acknowledged the debt in a letter written after suit was threatened, and promised to make no trouble, but confess the debt. The affidavit of defendant in opposition to the motion failed to point out any defense. Held, that the order was properly granted.</p>

<p>Appeal from judgment entered on verdict in favor of plaintiffs.</p>

<p>Appeal from orders severing an action and granting plaintiff two bills of costs.</p>

<p>Appeal from an order denying defendant’s application to set aside a judgment, and for leave to defend.</p>

<p>Appeal from judgment entered on verdict of a jury in favor of the plaintiff.</p>

<p>Appeal from judgment rendered at equity trial term in favor of plaintiff.</p>

<p>Appeal from judgment entered on a verdict of a jury in favor of plaintiff.</p>

<p>Appeal from order of the Special Term.</p>