Volume 10 — New York Supreme Court Reports

Writ of error to the Court of General Session for the city of New York, to review the conviction of the plaintiff in error of the crime of burglary.

<p>Surrogate's decree — appeal from — Compromise—when not sustained by court.</p> <p>Upon an appeal from an order of a surrogate, the whole case is to be examined by the appellate court, as well upon the facts as upon the law, so far as those questions are presented by the appeal.</p> <p>Where, in pursuance of a compromise entered into between the widow and executors of a ■ person deceased, an order was made, directing that a certain sum be paid over to the widow in full satisfaction of her claim and of the fees of her counsel; held, that, as the fees of the counsel had not been inquired into, or in any manner ascertained prior to the making of the order, and there was nothing to show what they amounted to, the order should be reversed.</p>

In the paper which was served upon the corporation counsel, and which purported to be a copy of the petition to be presented to the court, the fourth ground of objection was as follows : “ 4th.

<p>Application for a peremptory mandamus by the relator to compel the respondent, as mayor of the city of New York, to countersign a warrant, drawn by the comptroller of the city, pursuant to section 7 of chapter 702 of the Laws of 1872, entitled “An act to improve and regulate the use of the Fourth avenue, in the city of New York."</p>

Upon the first argument of this appeal, the General Term reversed the judgment below. Subsequently a motion for a reargument was made and granted for the reasons stated in the opinion.

<p>Appeal from an order of the Special Term,' sustaining the exceptions of the respondent, Bispham, to the report of a referee, appointed in an application for the distribution of the surplus moneys arising on a sale upon the foreclosure of a mortgage.</p>

<p>Appeal from an order, made at the Special Term, directing a mandamus to issue against the appellants.</p>

<p>Judgment recovered by firm—release of, entered by one partner in clerk's office — cancellation of— Complaint— amendments to.</p> <p>This action was commenced by the plaintiff upon a judgment recovered by his firm, prior to its dissolution, against a firm of which Odell, the defendant’s testator, was a member. After the commencement of the action, the plaintiff discovered that one Schanck, a former partner of his, had given a release from the judgment to Odell, which had been delivered to the county clerk, who had marked the judgment, released as to him. The plaintiff then moved to have the entry in the clerk’s office canceled, and for leave to amend his complaint hy alleging that the release was given fraudulently and without authority, and by collusion between Odell and Schanck, and praying that the same might be declared null and void, both of which motions were denied. Held (1), that the order denying the motion to cancel the entry in the clerk’s office was correct; (2), that the plaintiff should be allowed to amend his complaint upon payment of all the costs of the action up to the time of this appeal.</p>

The first action was brought in the late Court of Chancery for the foreclosure of a mortgage, and the principal defense was that the plaintiff’s intestate was not the owner of it. Judgment directing an accounting and of foreclosure was directed, but no judgment or order was ever entered.

<p>Wbit of error to the New York Court of General Sessions.</p>

The remedy by mandamus is granted only when there is no other, to prevent a failure of justice. (Clark v. Miller, 54 N. Y., 534.) Plaintiff’s proper course is to bring his action. (People ex rel.

Time’s contempt of court, in collecting rent from the tenants of certain mortgaged premises; the other imposing a fine upon the appellant, and directing his commitment until payment, for a contempt. The four actions in which these proceedings were had, were brought to foreclose four mortgages. A receiver of the rents and profits of the mortgaged premises was appointed.

If the papers on their face show that the referee has allowed, and the court has confirmed an allowance in direct violation of the statute, such an allowance is not binding upon the city. The costs provided for — the costs they are permitted to tax — are the costs authorized by the act. The taxation is binding to that extent; beyond it, it is not voidable merely, but void. The distinction between law and equity is abolished by the Code. (Cowles v. Cowles, 9 How.

« This action, which was brought in the Supreme Court, to recover damages for slanderous words published and spoken of the plaintiff by the defendant, was transferred to the Marine Court by an order made in pursuance of chapter 629, Laws of 1872, and chapter 545, Laws of 1874.

The return of the county judge sets out an affidavit presented to him by David Stroup, setting forth that, on 1st December, 1874, John W. Bridenbeeker was owner of certain lands and premises in the town of Frankfort, in said county of Herkimer, described in a notice of sale in foreclosure of a mortgage, given by said Bridenbeeker and wife to Jacob J. Folts, to secure the payment of $3,000, and which mortgage bore date the day and year last mentioned; that it had been duly…

<p>On the 22d July, 1866; Joseph Fellows entered into a contract in writing with Thomas Taylorson, to sejl and convey to him certain land,.in the village of Corning, in the county of Steuben, on payment of $1,547.32, $100 of which was payable on demand, and the residue, with interest, in seven annual payments, which purchase-money said Taylorson covenanted to pay. The contract "contained a condition that it should not be lawful for the purchaser to assign said contract without the consent in writing of the said Fellows.</p> <p>On the 10th October, 1868, said Fellows conveyed, by an instrument in writing, to defendant, his real and personal estate in this State and several other States, in trust to sell the said lands by retail, and convey the same with covenants of warranty binding his heirs to warrant the title, and until sold to rent the same; and to collect all debts owing to him. The avails of said real and personal estate to be paid, distributed and disposed of as follows :</p> <p>1st. To defray the expenses of the trust.</p> <p>2d. The residue of said avails to be paid over to said Fellows, or appropriated to his use under his direction during his life.</p> <p>3d. After his decease, and after the payment of all his just debts and expenses aforesaid, the residue to be distributed as directed in a writing thereafter to be executed, or, in case none should be executed, then the residue to be distributed to his heirs according to the laws of this State. The defendant accepted said trust, and entered upon the duties thereof. On the 15th October, 1868, Fellows executed and delivered an'instrument designating the persons to whom he desired the avails of the trust property to be distributed at his death.</p> <p>On the 8th January, 1869, Fellows commenced an action in this court to have said trust set aside, and the property restored to him discharged therefrom ; and he' obtained an injunction restraining the trustee from interfering with the said property pending said action.</p> <p>One Bostwick was duly appointed receiver in the action, of all property conveyed to the trustee, and he was authorized by the order appointing him, amongst other things, to sue for and collect such debts as are or may become due, and to pay over to the plaintiff such sums of money as shall come to his hands, as such receiver, in the discharge of his duties. On the 4th February, 1871, the sum of $2,045.28 was due on the contract first herein mentioned, but the said sum was not then payable. On said day, Taylorson paid to the receiver the said sum, which included an amount not then payable, and the receiver indorsed the same upon the contract in full payment and satisfaction thereof. The sum so paid was paid to Fellows, who received the same in satisfaction of said debt. The receiver. was discharged April 10th, 1871, and the complaint in the action was finally dismissed. On the 4th February, 1871, Taylorson assigned the said contract, so paid up as aforesaid, to Joseph F. Hill, as collateral security to a note for said sum of $2,045.28, payable one year after date, with interest. December 1st, 1871, Hill indorsed said note, and assigned said contract to the plaintiff, and Taylorson also assigned his interest in said contract to the plaintiff, and authorized him to receive a deed for the land therein mentioned.</p> <p>Subsequently the plaintiff demanded a deed from the defendant, who refused to execute the same. This action was then commenced to compel defendant to execute and deliver to plaintiff a deed, in conformity to said contract.</p> <p>The defendant alleges in his answer that Hill was the confidential friend of Fellows and Bostwick, and that he, together with the persons last named, fraudulently conspired together to get possession of the moneys becoming due upon contracts, held by the defendant as trustee, and to take the same from under the said trust; and, for that purpose, Hill took Taylo'rson’s note, and the receiver receipted the amount unpaid on the contract as paid, and in full of the same, and Fellows gave the receiver his receipt for the money, but in truth and in fact no money whatever was paid to, or received by, the receiver or Fellows. The defendant for this reason refused to acknowledge the contract as paid in full, or to give a deed for the land therein mentioned.</p> <p>The court on the trial found the contract to be paid; found nothing in regal'd to the alleged fraud, and ordered judgment that defendant convey the land. From this judgment the defendant appeals.</p> <p>On the trial, defendant, to prove fraud against Hill, Bostwick and Fellows, offered to prove that O. D. Sill and Daniel Baker paid debts, severally owing by them to the trustee, by giving new securities to Hill. The court rejected the evidence and defendant’s counsel excepted. The court refused to hold as matter of law, that the assignment of the contract without the consent in writing of the trustee, was void.</p>

<p>Becords in county clerk’s office—not county property — Supervisors—power of, over record!s in county clerk's office— County clerk not agent of county.</p> <p>The records of conveyances in the county clerk’s office are not corporate property of the county.</p> <p>The county clerk, in keeping such records, does not act as the agent of the county.</p> <p>The hoard of supervisors has no power, in hostility to the county clerk, to have indexes made of the records in the clerk’s office.</p>

At folio 19 of the case, the question was asked : “ Do you know how that farm has rented for the past five years ? ” The question was objected to “ as incompetent and improper.” The objection was overruled, and an exception taken. Another question of a similar character was asked, objected to “ as incompetent and improper,” and received.

This action was brought upon a promissory note made by the defendant to the order of one Frederick Lambert, which was indorsed by him, and by the firm of Lambert & Lincoln, of which he was a member. The note was discounted, and the proceeds received by the firm. On the last day of grace, Lincoln, one of the firm of Lambert & Lincoln, called at the bank and paid the note, telling the clerk that he wished to hold the maker and the indorser thereof.

Hunter, mayor thereof, to pay over to the park commissioners (the relators) the amount applicable to .the payment of assessments, under chapter 926 of the Laws of 1871.

<p>Sale by assignee in bankruptcy — what constitutes a counter-claim, in action to recover pwrchase-price — Arbitration — when invalid.</p> <p>In this action, brought to recover the purchase-price of certain live stock sold by the plaintiffs, as assignees in bankruptcy, the defendant set up, as a counterclaim, a demand for services rendered by her in keeping the stock before and after the time at which the plaintiffs acquired title thereto. Held (1), that so much of the claim, as'related to services rendered before the plaintiffs acquired title, was a claim against the estate of the bankrupt, and could not be set up as a counter-claim in this action; (2), that so much thereof as related to services rendered after that time, could be so set up.</p> <p>Defendant’s account was, by agreement, left for adjustment to the register in bankruptcy, who determined that $250 would be a proper allowance for her, which sum was deducted by the referee from the purchase-price of the cattle. Held, that such agreement would constitute a common-law arbitration, and would be binding; but, that as it appeared that the arbitration was conducted in an informal manner, without hearing the claimant, or appointing any time for such hearing, it was irregular and not binding on the defendant, and that she was entitled to prove her claim anew.</p>

This action, which was brought to recover the amount claimed to be due on a contract for paving a street in the city of New York, has already been before the General Term, where the following opinion was delivered at the January Term, 1874: Davis, P. J.: The plaintiff sues as assignee of a contract for paving One Hundred and Twenty-eighth street from Second to Sixth avenues.

<p>Appeal from a judgment, in favor of the plaintiff, entered on the report of a referee.</p>

Writ of error to the Court of Oyer and Terminer of the city and county of Hew York, to review the conviction of the plaintiff in error of an assault with intent to kill. The evidence of the witness, as to the entry made upon the blotter, was improperly admitted.

One who, without knowledge of its truth or falsity, makes a material misrepresentation, is guilty of fraud, as much as if he knew it to be untrue.

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

The defendants appeal from so much of the order as denies a motion to set aside the judgment; and the plaintiff from so much thereof as changes the date of the entry of the judgment, etc.

<p>Ohap. 238 of 1853—issue of foot to he tried by jmy in cause determined at Special Term— Supreme Gov/rt—jurisdiction of—■Special Term cause not necessarrily an equity cause.</p> <p>In an action brought under the provisions of chapter 238 of 1853, the cause is properly determined by the court at Special Term, but with the aid of a verdict of a jury to settle the questions of fact necessary to establish the title at law.</p> <p>The Supreme Court, sitting at Special Term, has all the jurisdiction, both legal and equitable, conferred by the statute on the Court of Chancery and the former Supreme Court in proceedings for partition, and is to conduct the same, so far as they are applicable, in conformity with the provisions of the Revised Statutes. A case is not necessarily an equity cause because on the Special Term calendar, and if there be an issue of fact in the case, the court may send it to a jury either upon a settlement of special issues or on the pleadings.</p>