Volume 10 — Abbott's New Cases

Motion to dissolve injunction. This action was brought by the First Reformed Presbyterian Church of York against Samuel Bowden and others. The facts were as follows: The church members of the religious corporation which is named as the plaintiff, belong to the religious denomination known as the Reformed Presbyterian Church in North America. Eleven elders, who are church members, commonly compose -what is known as the session of the plaintiff.

Trial of cause. Theodore A. Havemeyer sued Lawson H. Fuller in the superior court for 8100,000 damages, for alleged slanderous words uttered by the defendant at a public meeting in Chickering Hall, on January 6, 1879. The judge dismissed the complaint.

Reference to ascertain the proper compensation to be awarded to the counsel for Willis S. Paine, receiver of the Bond Street Savings Bank, for their professional services from September 26, 1876, to January 1, 1881.

<p>Motion for new trial by defendant Quirk Quam.</p> <p>Ann Fitz Gerald sued Charles Quirk Quam and Mary L. Quam, his wife, for damages for her slander</p>

In July, 1880, on the petition of The New York Elevated Railroad Company, The Metropolitan Elevated Railway Company, and the Manhattan Railway Company, writs of certiorari were issued to review the determination of the commissioners of taxes in relatian to the taxation of the property of the petitioners, and to determine the validity of the taxation.

<p>Taxes.—Certiorari.</p> <p>A certiorari to review proceedings of tax commissioners should not require the return of records not affecting the particular property of the relator. Facts affecting other property relied on as showing disproportionate valuation, should be left to be shown by evidence.</p>

Motion to confirm referee’s report of a sale in partition, “subject to all taxes, assessments, and other incumbrances.” A search was made, prior to the sale, by the county clerk, but owing to error in the index in writing Jacob instead of James Townsend, a small mortgage was not discovered. The referee, the purchaser, and all parties supposed there was no such incumbrance.

<p>Purchaser, -when Compelled to Take Title.—Unpaid Tax, when no Ground for Refusal to Take Title.—Satisfaction of Mortgage.—Description in Deed.—Practical Location of Boundary. —Title, when Doubtful.—Purchaser, when not Chargeable with Costs of Action.</p> <p>The existence, at the time for performance, of a lien previously unknown to the vendor who then immediately offers to pay it or to allow the purchaser to deduct the amount from the purchase-money, is not a good ground for refusing to take title.*</p> <p>A mortgage may be presumed satisfied from lapse of time; and where a purchaser at the time for closing title refuses to accept, on the ground that a mortgage thirty years past due, appears to be an incumbrance, and it is proved on the trial that the mortgage has been satisfied, by the production of a satisfaction-piece, executed by the mortgagee, though not so authenticated as to entitle it to be recorded, the court will decree specific performance.*</p> <p>The lot, the boundary of which was in dispute, together with the adjoining lot, which was a corner lot, originally belonged to one owner, who, in granting them, bounded each by the other. The corner lot, which was first granted, was described as being eighteen feet and seven inches wide. The lot in question was described as being twenty feet wide, but its distance from the corner was not directly stated. Both deeds referred to a map which gave the width of both of the lots as twenty feet. Reid, that the original owner had made his grantees adjoining owners, and had reserved nothing to himself, and that the boundary of the lot in question was eighteen' feet and seven inches from the corner, the lot having been possessed accordingly and that line having been acquiesced in by practical location.</p> <p>The existence of a mortgage, although over thirty years past due, renders a title doubtful, as the mortgagee may have in his possession a promise to pay, or facts may exist which would continue it; and a purchaser is therefore justified in adopting measures to remove the doubt. Hence, in an action by a purchaser to recover back payments made on account of the purchase, the defendant having produced on the trial a satisfaction-piece of the mortgage and recovered an affirmative judgment for specific performance, it is error to charge the purchaser with costs, the satisfaction-piece not having been previously exhibited to him.</p>

<p>Summons.—Designation of Place of Trial.-—Stax of Proceedings.—-Attorney and Client.—Service of Notice of Motion to Vacate Judgment. — Substitution by Appearance after Judgment.—Prayer for General Relief in Notice of Motion.</p> <p>The words “city and county of New York,” in the caption of the summons, in an action brought in the supreme court, are a sufficient designation of the county in which the plaintiff desires the trial.</p> <p>Obtaining an order permitting the filing of a complaint, rmnopro tuna, is a violation of a stay of proceedings granted upon an order to show cause why judgment should not be vacated because entered without a complaint.</p> <p>An ex parte order obtained in violation of a stay of proceedings may be vacated ex parte by the judge who granted it, upon his attention being called to the facts.</p> <p>The entry of judgment, though without jurisdiction and void, terminates the functions of the attorney; and the employment of a new attorney to issue execution and enforce the judgment, and his issuing execution, is a complete substitution, so that subsequent service of papers for a motion to vacate the judgment with a stay of proceedings meanwhile, is properly made upon such new attorney.</p> <p>In such case neither the plaintiff nor his former attorney can disregard the stay.</p> <p>Where, on the granting of a motion to vacate judgment for irregularity, the plaintiff might proceed to enter judgment anew, defendant may, under the prayer for other and further relief, be permitted to appear and demand a copy of the complaint.</p>

<p>Facts Required to be shown on Application to Change Fame.</p> <p>.On proceedings to change the name of an individual, he should show whether he is married or single, whether there are any judgments or actions pending against him, whether there is any outstanding commercial paper in the name sought to be abandoned, and also his age and birth-place, and the names of his parents.</p>

The plaintiff brought this action against the defendant to recover the sum of $25,000 damages for crim. con.

Motion to strike on t the answer of the defendant, Sarah N. Churchill, as sham. The action was brought for the foreclosure of a mortgage which had become dne by reason of a failure to pay interest and the election of the plaintiff to treat it as a forfeiture.

This action was brought by the Irving National Bank against David Corbett, to recover on a promissory note. It was not alleged in, nor did it appear by the complaint, except by the name of the plaintiff, that it was a corporation. The defendant demurred. cited: Code Civ. Pro. § 1776; Phœnix Bank of N. Y. v. Donnell, 40 N. Y. 410; Davenport v. Sniffen, 1 Barb. 228.

<p>Restitution.—Principal and Surety.—Demand.</p> <p>Where a judgment against sureties on an undertaking is reversed, ' and a decision rendered in their favor, the plaintiff will, on the sureties’ motion, be compelled to pay over to them money paid to him upon the judgment by their principal, as the principal must be deemed to have paid it on their behalf. The essential pointisthat the judgment was paid and not assigned. The principal (not being a ■party to the undertaking) has no remedy against the plaintiff, and whetherthe sureties repay him is a matter between them and him only. In such case it is not necessary for the sureties to make a demand for the money before moving for restitution.</p>

<p>The facts are stated in the opinion.</p>

Trial by the court. This action was brought by Dennis R. Alward, as trustee, &c. and others, against Edward Holmes, and others. The facts appear in the opinion.

<p>A map filed under the general railroad act of 1850 (L. 1850, c. 140, p. 211, §§ 14, 22), which indicates the route only by a single line, with no indication whether it represents the center or a side, and no indication of width, is defective, and will not sustain a petition to condemn land.*</p>

Motion by defendant to dissolve an injunction heretofore granted on anxx parte application of the plaintiff, restraining the defendant from removing or disturbing the iron pipe laid by the plaintiff, as a section of its pipe line, in the bottom of Five Mile Creek, and under the waters thereof.

Demurrer to complaint. The Baltimore & Ohio Railroad Company brought this action against Alexander S. Arthur and John B. Power as receiver, &c. The nature of the complaint appears in the opinion.

The Supreme Council of the Order of Chosen Friends brought this action against Charles G-. Fairman, Superintendent of the Insurance Department, to enjoin his official conduct.

Certiorari issued on the relation of Jacob Spahn against Frederick Townsend and others. The facts appear in the opinion. I. The writ was properly directed (People ex rel. Reynolds v. City of Brooklyn, 49 Barb. 136; People ex rel. Davis v. Hill, 7 Alb. Law J. 220; People ex rel. Hunting v. Commissioners, 30 N. Y. 72; People ex rel. Haines v. Smith, 45 Id. 772). The adjutant-general is the custodian of the court-martial proceedings and record (Mil. Code, §§ 194, 295; Gen. Reg.

David Valentine and others brought this action against the Central National Bank, upon a stipulation in another action between the same parties. The plaintiff demurred to the defendant’s answer. Further facts sufficiently appear from the opinion,

Bridget Jones, as administratrix, &c., of William Jones, deceased, brought this action against the New York Central & Hudson River R. R. Co., to recover damages for injuries causing the death of her intestate. Motion by defendant for a new trial on a case. Further facts sufficiently appear from the opinion.

John W. Whetlock, the relator, being in the custody of the respondent Samuel hi. Baker, keeper of the workhouse of Erie county, by virtue of a warrant issued by a magistrate of the city of Buffalo, after conviction as a vagrant under section 887 of the Code of Criminal Procedure, on the 26th day óf December, 1881, procured a writ of habeas corpus, upon the return to which this proceeding arises. Further facts sufficiently appear from the opinion.

Henry B. Watson brought this proceeding in equity against his wife for the custody of their two minor children. Further facts sufficiently appear from the opinion. ■

Motion by defendant to dismiss an appeal taken by plaintiff from a justice’s judgment. Further facts sufficiently appear from the opinion.

Demurrer to complaint. Cornelia N. Fry brought this action against William Alexander Smith, as executor of Sylvanus W. G-odon, deceased, with others, as sister and next of kin of Sally K. Grodon, deceased, to recover her distributive share of the estate of said Sally K. Grodon in the hands of defendant. Further facts sufficiently appear from the opinion.

The trustees of Columbia College, in the city of New York, brought this action in the superior court of the city of New York, against Anna M. Lynch and others, to restrain the permitting, establishing, or carrying on of any trade or business on certain premises situated on the corner of Fiftieth street and Sixth avenue, in said city, which were owned by said Anna M. Lynch. The title having subsequently been conveyed to Thomas Thacher, he was, by order, made a party defendant.

Writ of error to the New York court of oyer and terminer to review the conviction of Augustus D. Leighton, of the crime of murder in the first degree. The indictment was found in the court of general sessions of the peace of the city and county of New York, and subsequently, but at what time it does not appear by the record, was sent to the court of oyer and terminer for trial. Further facts sufficiently appear from the opinion.

Henry Kearney brought this action as éxecutbr, &c. of Eliza McKeon, deceased, to obtain a construction of the will of his testatrix. Further facts sufficiently appear from the opinion, j

Ida Ullman, by guardian, &c., brought this action against Henry H. Meyer, to recover damages for breach of promise of marriage. The defendant, among other things, set up that the agreement by its terms was not to be performed within one year from the making thereof, and was not, nor was any note or memorandum thereof, in writing. The court withdrew this question from the jury, and they found a verdict for plaintiff. Defendant thereupon made this motion for a new trial.

Appeal, by both assignors and assignee, from an ■order modifying a judgment or decree entered upon the accounting of Adrian Van Sinderen as assignee for benefit of creditors of the firm of Merwin, Hulbert & Co. Reported below, 9 Abb. N. C. 132.] Further facts sufficiently appear from the opinion.

This was an application for a certificate under sectian 528 of the Code of Criminal Procedure, which provides for a stay of proceedings pending an appeal to the court of appeals from a judgment affirming a conviction, where there is filed, with the notice of appeal, a certificate of a judge of the court of appeals or of the supreme court, that, in his opinion, there is reasonable doubt whether the judgment should stand.

Joseph Gruillotel brought this action, in March, 1877, against the mayor, aldermen, and commonalty of the city of New York, in the court of common pleas in said city, to recover damages for personal injuries sustained in March,. 1873, by reason of defendant’s neglect to keep a sidewalk in repair.

Salina A. Mellen brought this action against Jonathan O. Mellen for a divorce. This was a motion by plaintiff for judgment upon the findings of a jury upon the issues of fact. Further facts sufficiently appear from the opinion. '

<p>Conflict of Laws.—Fokeign Insolvent Assignment.—Choses in Action. —Attachment.</p> <p>Credits and choses in action have no situs apart from the domicil of their owner, and an assignment of them, made in the place of such domicil, which is valid there, is valid everywhere.</p> <p>They are not, therefore, after reduction to possession by the assignee, subject to an attachment in this State, although the assignment be invalid under our laws.</p>

Jacob K. Lockman, as executor of the last will and testament of Richard C. Sage, brought this action against Thomas J. Reilley to compel the defendant to specifically perform a contract made by him, to purchase certain lots of land in the city of New York. Defendant refused to perform on the ground that the plaintiffs title was defective. The plaintiff was the owner of the first mortgage on the premises in question.

This was a motion by certain stockholders of the Hektograph Company to vacate a judgment for the dissolution of the corporation, entered upon overruling a demurrer interposed by it in an action brought by the attorney-general in the name of the people. Further facts sufficiently appear from the opinion.

Julia Eberhardt brought this action against C. August Schuster, to recover her distributive share of a policy of insurance upon the life of her mother, which had been collected by defendant. After the action had been at issue for some time, the defendant obtained plaintiff’s personal consent to a discontinuance, without the knowledge of her attorneys, and entered an ex parte order of discontinuance thereon.

This was a motion in behalf of RosinaE. Eddy, for the repayment to her of certain rent paid by her under protest to the receiver appointed in the action of the People against the Globe Mutual Life Insurance Company. Further facts sufficiently appear from the opinion.

<p>Oobfobations.—Concealment by Tbustees of Purchase Pbice of Lands.—Remedy.—Pabties.—Action by Stockholders against Trustees in control of Corporation without Previous Request to. sue.—Demurrer.</p> <p>Plaintiffs’ complaint alleged that, defendants, promoters of a mining corporation, obtained subscriptions from plaintiffs and others, with the understanding that the entire capital stock should be issued to defendant B. as trustee, to be used in payment for certain mining property to be purchased by him, and by him transferred through defendant H., as trustee for the subscribers, to the latter, who were to advance the stipulated subscription price to H., he to deliver the money to B. upon the execution of the deed to the company, and delivery of the stock subscribed for; that the company was organized, H. and B. being trustees, and the subscriptions were paid through H. to B., who, after paying for the lands, with the money received from H.¡ and transferring the stock called for by the subscriptions, had remaining in his hands more than one-half of the capital stock, which was retained by the defendants. Plaintiffs were ignorant that the lands could be bought for less than the proceeds of the whole capital stock at the subscription price. Held, overruling demurrer to the complaint, that defendant B. occupied a fiduciary relation to the corporation and the subscribers, and could not, nor could his associates, who were also familiar with the facts, make, through concealment from the subscribers, any profit from the transaction, and they should therefore be held accountable for the stock which they had retained, or its proceeds. Though the corporation was the party primarily aggrieved, the complaint showed special damages and injury which entitle plaintiffs to maintain the action.</p> <p>It is not a universal rule that the ultimate rights of stockholders are shut up to an action by the corporation. If justice cannot be reached in that way, the stockholders may sue, making the corporation a party defendant.</p> <p>When tlie action is-sought to be brought against the officers who are in control of the corporation, a request before suit that they bring the action in its name, is a needless ceremony.*</p> <p>The overruling of a demurrer to a complaint on the ground that it does not state a cause of action, does not call upon the court to determine what specific relief should be granted. It is enough if, from the facts alleged, it appears that some relief should be awarded.</p>

<p>Municipal Corporations.—New York City.—Discharge op Subordinates under L. 1880, c. 521.—Certiorari.—Con-clusiveness op Betuen.—Code Civ. Pro. § 2138.</p> <p>A right which is derived from the exercise of legislative authority is as much within the power of that body afterwards to change, modify or abrogate, as it was in the first instance to enact it.</p> <p>Under L. 1880, c. 521,—providing for retrenchment in the expenses of the local government of the city of New York,—the board of police has power to remove a deputy clerk, without a hearing. Such removal is authorized, although the appropriation for the department is sufficient to pay the entire -force employed, as the commissioners are not bound to exhaust it, but it is their duty to reduce expenses as far as practicable.</p> <p>Section 2138, Code Civ. Pro., requiring the case on certiorari to be heard, not only upon the return, but also upon the papers on which the writ was granted, changed the existing rule that the return was conclusive only so far that where the return itself is silent the affidavit or papers upon which the writ issued may be resorted to for the purpose of including facts not set out in the return.</p>

The Temple Grove Seminary brought this action against Louis H. Cramer, receiver of taxes, and others, to set aside a tax assessment, and to restrain a sale for the enforcement of such tax.

<p>Tax Sales.—Charter of City of Buffalo.—Sales to City.— Notice to Redeem.—Declaration of Sale.</p> <p>The limitations prescribed by statutes which provide for the collection of taxes by sale of the land assessed are rigidly enforced by the courts. Unless every provision designed for the security or protection of the tax-payers has been fully and substantially complied with, the claims of a purchaser at the tax sale must fail.</p> <p>The charter of the city of Buffalo (A. 1870, c. 519, tit. 7) provided that taxes and assessments should be a lien on lands assessed for five years from the delivery of the assessment-roll; that the tax might be enforced by a sale, at which, if there should be no bidder for a shorter term, the lands should be struck off to the city for the term of one hundred years ; that after nine months, and before three years after the sale, the purchaser might give notice to the owner to redeem within three months thereafter, and "that, upon failure to redeem, the purchaser should become entitled to a declaration of sale, which, however, should not be granted after the expiration of five years from the sale. Certain property was sold by the comptroller and struck off to the city, which failed for over five years to serve notice to redeem or to apply for a declaration of sale. Upon a submission of controversy between a vendor and purchaser of the premises,—Held, that the time within which notice to redeem could be given, or application for a declaration of sale made, having both expired, neither the tax nor the sale created a lien on the lands which would excuse the purchaser from completing his contract.</p>

Appeal by Milan Hulbert and William A. Hulbert, from an order of the general term, of the court of common pleas in and for the city of New York, modifying a decree entered upon the accounting of Adrian Van Sinderen as their assignee for benefit of creditors. [Reported below, 10 Abb. N. Q. 284, and 9 Id. 132.] Further facts sufficiently appear from the opinion.

Appeal by the defendant, Leonard T. Jones, from a judgment rendered against him in justice’s court, in favor of the plaintiff, Emma Powens. The facts sufficiently appear from the opinion.

<p>Indictment.—Special Plea.—Presumption of Continuance op Marriage Relation.—Forgery of Usurious Instrument.</p> <p>A special plea to an indictment, alleging that a witness before the grand jury had been, on a day named, a number of years previous to the finding of the indictment, married to the accused, and that after such marriage they cohabited, &c., is bad on demurrer for not alleging that the witness and the accused were husband and wife at the time the witness was sworn.</p> <p>The rule that the continuance of a relation, shown once to exist, may be presumed, is a rule of evidence, not of pleading.</p> <p>To an indictment for forgery, it is not a sufficient defense that the instrument alleged to have been forged was usurious, even if usurious on its face.</p>

The plaintiffs, composing the firm of Phelps, Dodge & Co., in or about the year 1860, entered into an agreement, which, after reciting the exaction of certain alleged excessive duties on importations by the collectors of customs at various ports in the United States, provided as follows: “The undersigned, in behalf of themselves and consignors, have employed Alfred Douglas, Jr., and Earl Douglas, of New York city, who agree on their behalf to endeavor to establish, by legal…