Volume 1 — Silvernail Supreme Court Reports

The special term granted an order dismissing the proceedings under an order for the examination of the plaintiffs be-before trial, and from the order defendant appeals.

<p>1. Change of claim.—A cause of action cannot be changed from negligence to one for maintaining a nuisance. '</p> <p>2. Negligence.—Landlord and tenant.—In an action depending upon negligence by reason of the broken and unsafe condition of leased premises, negligence on the part of the landlord can only be established by showing either that at the time of the renting, the premises were in such unsafe condition, or that at the time of the happening of the accident he had some control thereof.</p> <p>See Note 17 at the end of this case.</p>

Appeal by the administratrix of the deceased defendant, from an order of the special term granting plaintiff leave-to sever the action and revive it against the said administratrix, and to serve a supplemental summons and complaint, and for other relief.

<p>Filing exception after time expired.—The court has power, under the provisions of sections 724 and 783 of the Code, to permit the filing of an exception to the referees conclusion of law, after entry of judgment and time has expired, with the same force and effect aa though it had been duly filed and served within the time limited by the Code.</p>

The action was based upon a written agreement made between one George Humphreys and defendant Jebb.

<p>1. Contract. No implied promise.—A party is not entitled to recover for board and lodging if furnished, or services' if rendered, without any expectation on his part to charge, or on the part of the recipient to pay, therefor.</p> <p>See Note 10 at the end of this case.</p> <p>2. Payment.—The jury are not justified in finding from the fact that defendant had paid money to plaintiff’s wife and so informed plaintiff without stating why or on what account, that this money was paid to her as his agent, or that the defendant intended that it should be received by plaintiff as a payment towards any indebtedness which defendant might owe him.</p> <p>3. Bill of exception.—It is the duty of the appellant to prepare the bill of exceptions, and he should see to it that the points and exceptions upon which he relies, are clearly and distinctly stated.</p>

The action is to recover damages for an alleged breach of warranty on the sale by the defendants to the plaintiffs of a quantity of oil manufactured by the former, and known as “ Breton oil.” The plaintiffs are manufacturers of car pets, in the city of Auburn, and, as the evidence shows, were doing an extensive business.

<p>Amendment.—Power of Court.—The power conferred upon the court in the matter of amending pleadings, is largely discretionary, and is to-be exercised freely and liberally in the furtherance of justice.</p> <p>2. Same. Foreclosure.—An amendment setting forth, in substance, that. the mortgage, to foreclose which the action is brought, was given, to secure moneys, which were] used, at the mortgagor’s request in payment of a judgment of foreclosure and sale obtained in an action to foreclose a prior mortgage on the same premises, and asks that the plaintiff be adjudged the equitable assignee of that judgment, etc., alleges a good, and not an inconsistent, cause of action, and such as will enable plaintiff to enforce the-judgment as an equitablS assignee, in ease the foreclosure of his mortgage is defeated, and is properly allowed.</p> <p>3. Same.—A court will not, upon an application to amend a pleading, determine whether the proposed amendment sets forth a cause of action or defense, unless it conclusively appears that the amendment, if granted, can he of no possible avail to the party asking it.</p> <p>4. Framing issues.—A court of equity ought to frame such issues, as will enable the plaintiff to obtain the relief he seeks, if the evidence at the trial shall establish the truth of his allegations.</p>

<p>Action for the.forelosure of a mechanic’s lien.</p> <p>Appeal from a judgment entered on a referee’s report.</p>

<p>1. Chattel Mortgage. Bounty money.—A gift by husband to wife of money received as a bounty for enlisting as a volunteer in the United States service, is valid, and the loan thereof furnishes a sufficient consideration to uphold a chattel mortgage given by him to her, as against his creditors.</p> <p>See Note at the end of this case.</p> <p>2. Same. Fraudulent.—An understanding and agreement that the proceeds of mortgaged property, as sold by the mortgagor, should be paid to the mortgagee and applied in discharge of her mortgage, is valid, and does not impair its validity.</p> <p>3. Same, finding.—The determination of the jury that the mortgage was made in good faith, and without any intent to hinder, delay or defraud creditors, when the question was directly at issue on the trial, and the evidence sufficent to sustain it, is final.</p>

<p>1. Referee. Request to find.—No error is committed by a referee in refusing to find a request on conflicting evidence.</p> <p>2. Separation. Condonation.—An act of sexual intercourse, after acts of cruelty, inhumanity and misconduct, affords some, but not conclusive, evidence of condonation, nor is it, as a matter of law, a. condonation of such antecedent acts. See Note at the end of this case.</p> <p>Same. Section 1758. The provisions of section 1758 of the Code do not apply to an action for a separation.</p>

<p>1. Evidence. Objection.—An objection to the qualification of a witness, is not sufficient to raise the question of the competency or admissibility of his testimony.</p> <p>2. Same. Improper answer.—The admission of an answer, not responsive, to which no objection, or motion to strike out, was made, cannot be objected to on review.</p> <p>3. Same. Breach of warranty.—Where, in an action for breach of warranty on the sale of an engine, one ground of failure to comply was in the smallness of the spark arrester, evidence tending to show its sufficiency, and the kind used on the engines, with which the one sold had been compared on a trial to determine its compliance with the warranty, is admissible.</p> <p>4. Same.—Evidence to show its operation after its repair and before-its return to plaintiff, shortly before the trial of the engine, is admissible, where the defendant was not present at such trial.</p> <p>5. Same. Admission.—The statement of a party as to any fact in issue, or relevant to any issue, is admissible as primary evidence against the person by whom it is made.</p>

<p>1. Witness. Section 829.—A subscribing witness to a codicil, by an appointment as trustee under the will by the surrogate’s court, is not rendered incompetent under section 829 of the Code, to testify to personal transactions with the testator.</p> <p>2. Evidence. Objection.—An improper or irresponsive answer to a proper question, without objection or motion to strike out, cannot be objected to on review.</p> <p>3. Review. Probate of Will.—Where the general term has examined the whole evidence in probate proceedings, and is satisfied that it is amply sufficient to sustain the decision of the Surrogate, and that none of his rulings on the admission or rejection of evidence are necessarily prejudicial to the appellant, the decree should be affirmed.</p>

<p>L New trial.—A new trial will not be granted on the ground that the verdict is against the weight of evidence, where the testimony is contradictory. It is only where the verdict is so clearly against the weight of evidence as to furnish proof that the jury were influenced by passion, prejudice or mistake, that it should be set aside.</p> <p>2. Question of fact.—The question whether a receipt in full for a claim under an insurance certificate was obtained by duress, is a question of fact upon conflicting evidence, and properly submitted to the jury.</p> <p>3. Insurance. Recovery.—In an action on an insurance certificate, a recovery for the amount of one full assessment is not excessive, though a by-law adopted subsequent to the issuing of the certificate, provides for a payment of only five-sixths of that amount.</p> <p>4. Evidence. Section 834.—The burden of proof is upon a party, who seeks to exclude testimony under section 834 of the Code, to show, if it does not otherwise appear, that the information is such as the witness acquired in attending the patient in a professional capacity not only, but he must also show that it was such as was necessary to enable him to act in that capacity.</p> <p>See note at end of this case.</p>

<p>1. Note. Transfer. Per-existing debt.—A person, who takes a promissory note before maturity in payment of a pre-existing debt, without parting with any new consideration, takes it subject to the equities existing between the original parties.</p> <p>See Note at the end of this case.</p> <p>2. Same. Defense.—The fact that a note was given for money advanced upon an agreement to be repaid from the proceeds of certain sales, and on payment to be destroyed, and not to be transferred, is no defense in an action on the note by the payee, or an indorsee for an existing debt, though before maturity.</p>

Action brought to recover a penalty for obstructing? a highway. Appeal from a judgment entered upon a verdict in favor of the plaintiffs.

<p>1. Master and Servant. Instruction.—It is the duty of a master to instruct an inexperienced servant especially if of tender years and presumed ignorance, where he puts him in a place of latent or obscure danger, how to do the work, and at the same time be on his guard against the danger.</p> <p>See Note 3 at the end of this case.</p> <p>2. Same. Fellow-Servant.—Though the servant is injured while acting under the orders, and through the negligence, of a fellow-servant, if the instructions, which the law requires the master to give in such circumstances, will suffice to put the servant on his guard against the negligent orders of his fellow-servant, and thereby prevent the accident, a recovery may be had for the negligence of the master.</p>

<p>-Place of trial. Sheriff.—A sheriff, in an action against him for an act done in the execution of process, upon compliance with section 986 of the Code, is entitled to a trial in the county whose officer he is, and cannot be deprived of such right, by joining other persons as defendants with him; and in such case an order should be entered changing the place of trial to such county.</p> <p>■See note at the end of this case.</p>

<p>Appeal from an order compelling a purchaser at a partition sale to take title.</p>

<p>1. Judgment. Confession. Amendment.—The supreme court possesses power to amend a confession of judgment on motion; and, when the indebtedness mentioned in the confession of judgment is fairly and honestly due, this power may be exercised, notwithstanding the effect of such amendment may be to deprive subsequent judgment creditors of rights which otherwise would belong to them.</p> <p>See Note at the end of this case.</p> <p>2. Same. Execution.—An execution issued on a judgment on confession, where the statement on which it is based shows that only a portion of the indebtedness is due, for the full amount of the judgment, is irregular.</p> <p>3. Same. Subsequent judgment creditor.-—A subsequent execution creditor is entitled to question an execution issued on a judgment on. confession for the full amount where only a portion is due at the-time of such issue, and to set it aside on motion except for the: amount actually due thereon.</p> <p>4. Same. Subsequent agreement.—A subsequent agreement between the-debtor and the creditor in the confession judgment, that all the indebtedness mentioned in the statement should become and be-deemed presently due, without any amendment of the statement to that effect, cannot interfere with the rights of third parties, nor warrant the issuing of an execution on any part of the claim, except that which the statement showed to be due at the time it. was made.</p>

<p>Master and servant. Former’s liability for wilful acts of the latter.—A master is liable for an assault and false imprisonment caused by his-servant, who, while acting within the general scope of his duty, and assuming to act under his master’s authority, calls in a police officer, and has a party wrongfully arrested, though the acts were-not authorized by the master.</p> <p>See Note at the end of this case.</p>