Volume 12 — Abbott's New Cases

The plaintiff, John Marsh,brought this action against Lucien B. Bowen, who was supervisor of the town of Middlefield, to recover $159.35, damages sustained by plaintiff by reason of a sale of certain of his property for taxes. For some years prior to May 21, 1879, the plaintiff was a resident and tax-payer of the town of Middle-field, but whether he remained a resident of that town thereafter and until July 1, 1879, is- a disputed question upon which no evidence was given.

<p>Action to Believe prom Forfeiture of a Lease.—Lease.—Condition.—Re-entry.—Election to Terminate Lease.—Redemption from Forfeiture.—Lessors Estopped from • Claiming Forfeiture.—Summary Proceedings Restrained.—Right to Remove Buildings.</p> <p>A clause in a lease which provides for its termination at the election of the lessors, upon default in payment of rent, although in the form of a mere stipulation or contract, is still a condition, since it provides for ending the term, and forfeiture of the estate in case of the default.*</p> <p>Upon breach of the condition, the lessors may resort to an action of ejectment to recover possession of the demised premises, although no right of entry is expressly reserved in the lease.*</p> <p>Dictum to the contrary in Van Rensselaer «. Jewett, 3 FT. T. 141, 148-9,—disapproved, as based on Kenege ti. Elliott, 9 Watts, 253,— distinguished, †</p> <p>Though the lease provides for a forfeiture of the estate, the condition is not in the nature of a limitation where the estate determines at once upon the happening of the contingency, but 'the estate is determinable only upon the election of the lessors, and as long as they omit to elect, it continues in the lessees. ‡</p> <p>The next day after the lessors had given notice of their election to terminate the lease for breach of such condition, the lessees tendered the rent in arrear, with interest, to the lessors, who refused to receive it and insisted upon enforcing the forfeiture. In an action by the lessees to restrain the grantee of the lessors from the prosecution of summary proceedings for possession of the premises, and to he relieved from the forfeiture,—Held, that under the Code of Civil Procedure, §§ 1500-1508, as well as upon well settled principles of equity, the plaintiffs wore entitled to the relief demanded. §</p> <p>It appeared on the trial, that the lessee’s neglect to pay the rent on the day it was due, arose from their being led by the statements of one of the lessors into the belief that the delay would not prejudice their right afterwards to pay. Held, that it would be a fraud upon them to permit the lessors to insist upon the forfeiture.*</p> <p>The right to redeem from the forfeiture, and the denial of that righ by the lessors or their grantee, was sufficient to entitle the plaintiffs to relief from the forfeiture; it was not necessary that any proceedings against them for possession of the premises should be prosecuted.</p> <p>That the lessees had the right., under the terms of the lease, to remove the buildings which they had erected on the premises, did not affect their right to relief, as such provision related only to the rights of parties at the end of the term, and had no application to the case of forfeiture of the term for the non-payment of rent.</p>

This was a motion made by the defendant for the removal of an action pending in the marine court of the city of New York to the supreme court, and consolidation with another action between the same parties, pending in the supreme court; under an order to show cause why the same should not be done, granted, with stay of plaintiff’s proceedings pending decision, by Mr. Justice Donohue, upon all the pleadings and proceedings in said actions, and the defendant’s…

<p>Mandamus to County Canvassers.—Elections, Power of Canvassers.—Names, Middle Initial.—L. 1880, c. 400.</p> <p>Aboard of county canvassers lias no power to determine that votes cast for and returned to one name—e. g., Andrew C. Gdtty—were intended for and should be counted and aXowed to a person bearing another name—Andrew II. Getty. It has no power to take proof as to such facts, nor to make such determination in its absence.</p> <p>Upon an application for a mandamus under L. 1880 c. 460,*—author-izing the writ to correct errors in the determination of boards of county canvassers,—the court has no greater power than the board itself, and must, direct a canvass of the vote as cast, even though it appear by affidavits that the votes were all intended for the one person.</p> <p>The rule that a middle letter is no part of a man’s name and may be regarded as surplusage, the law recognizing but one Christian name—has no application in such case.</p>

<p>Security for Costs.—GKtaediah ad litem.</p> <p>A defendant’s right to require a guardian ad litem to file security for costs, may be waived by delay, or proceeding in the cause without demanding it.</p>

and county of New York, affirming a judgment in favor of the plaintiff, entered upon the report of a referee [Reported below, 9 Dalyy 429J. The action was brought by James M. Smith, as grantor for the benefit of William H. Adams, against John Long, and others, to recover a lot of land, conveyed by Jordan Mott, to Job Long, in the year 1865.

John W. Greene sued the Hew York Central & IL R. R. R. Co., for damages for the closing of St. John’s Park in the city of Hew York, the erection of a freight depot thereon, and the construction and manner of operation of a steam railroad, through Hudson street, past Ms premises, which cornered on the park. Further facts appear in the opinion. I. Motion by defendants at the trial to dismiss the complaint.

the city of New York to compel payment of salary of the relator William Byrne, a patrolman, which it was alleged had been deducted or retained during the six years preceding the application and prior thereto, on the pretense that they had a right to do so by reason of relator being on sick leave and, unable to do duty.

Action for limited divorce. Motion to require defendant to pay plaintiff’s attorney a further allowance by way of counsel fee. No answer to the complaint was interposed by the defendant, and on plaintiff’s motion, the court fixed the alimony pendente lite and awarded a counsel fee, which defendant paid. Reference of the action was then proceeded with, and a report rendered recommending a j udgment of limited divorce, and fixing the amount of alimony.

Trial before a referee. This was an action against the estate of a deceased person for unpaid alimony. The claimant was the former wife of the decedent, and the mother and guardian of Ms two children.

<p>Motion to compel defendant to elect between two counter-claims set up in her answer.</p> <p>The action was brought by the plaintiff for an absolute divorce from the defendant.</p> <p>The answer denied the adultery charged in the complaint, and set up two counter-claims, one alleging cruel and inhuman treatment, and the other alleging the adultery of the plaintiff. Affirmative judgment upon these counter-claims for a separation, or for an absolute-divorce, was demanded by the defendant.</p> <p>This is a motion to compel the "defendant to elect upon which of these two counter-claims she will rely. Section 1770 of the Code of Civil Procedure, provides : “When an action is brought by either husband or wife, as prescribed in either of the last two articles, a cause of action against the plaintiff and in favor of the defendant, arising under either of the said articles, may be interposed, in connection with a denial of the material allegations of the complaint, as a counterclaim.” Of the two preceding articles, the second and third of the title, the former (art. 2) related to divorce for adultery; the latter (art. 3) to separation for cruelty, &c.</p> <p>The question therefore arises whether, under this section, a defendant can, in connection with a denial of the adultery charged in the complaint, set up a counter-claim for cruelty, and also one for adultery, or whether she is restricted to the choice of one or the other of these.</p> <p>A plaintiff, in an action for a divorce or separation, must choose which of the two actions he will bring. He cannot join these two causes of action in the same complaint. And the defendant in this action, as to the counter-claims interposed by her, is really in the position of a plaintiff bringing a cross action. She can, under section 1770 of the Code of Civil Procedure, interpose a counter-claim upon either, but not upon both, grounds.</p> <p>A construction enabling her to counter-claim both the cruelty and adultery, would place her in a more favorable position than the plaintiff, who can only proceed upon one of these causes of action. Such could not have been the intention of the Legislature ; and such a construction would lead to great embarrassment in the prosecution of the action, counterclaim for a divorce being triable before a jury, and the counter-claim for separation, at special term.</p> <p>The entire question seems to hinge on the meaning of the word “either” in this section of the Code. The best authorities use the word “either,” in the sense of one and the other of two things, as well as one or the other. This is the definition ■ given in Abbott's Law Dictionary, Webster's Dictionary, and a very recent work {Winfield's Adjudged Words and Phrases).</p> <p>It is believed that the only direct adjudication upon the words is the following : “ The word 6 either/ is sometimes used in the sense of one or the other of several things, and sometimes in the sense of one and the other. Its use in the last sense is not infrequent. Thus, it is common to say, on either hand, on either side, meaning thereby, on each hand or side” (Chidester v. Springfield, &c. Ry. Co., 59 Ill. 87).</p> <p>It is plain that the provision of the section under discussion, should be construed in the last sense, which is equivalent to ££<?ae7¿.”</p>

Appeal by Henry Fulle from a judgment of the court of special sessions of the city and county of New York, convicting him. of selling adulterated cream of tartar as a drug.

This action was brought by the People against The Boston, Hoosac Tunnel & Western Railway Company, The Continental Construction &■ Improvement Company, and others. The facts are fully stated in the - opinion. The Attorney General and George F. Oomstoclc, for the People.

The relator, the Hartford Life and Annuity Insurance Company, applied on affidavits for a peremptory mandamus, against Charles Gr. Fairman, the Superintendent of the Insurance Department, on facts which are fully stated in the opinion.

The relator, an insurance corporation of Rhode Island admitted to New York State to do a fire insurance business, applied for a mandamus directed to Charles Gr. Fairman as superintendent of the insurance department of the State of New York, requiring him to issue a certificate of authority to relator’s agent, to do also the business of marine insurance within the State of New York.

<p>Action foe causing Death.—Foreign Corporation; Limitation of Action.</p> <p>A corporation of another State sued here on our statute for causing death, may plead the short limitation peculiar to that statute (Code Civ. Pro. §1902); for this limitation, not being a provision of the general statute, but “a different limitation prescribed by law ” (Id. § 414), the case is taken out of the general rule by which a foreign corporation (being deemed a non-resident under § 401), cannot avail itself of the limitations in the general statute.*</p>

<p>Judgment.—Action against Corporation.—Order eor Triad of Issues.'—Entry op Judgment without Order op Court.</p> <p>In an action against a corporation founded on a note, if the defendant omits to serve with its answer an order directing trial of the issues raised by the pleadings, application to the court is not necessary to enable the plaintiff to enter up judgment in bis favor {Code Gin. Pro. § 1778).</p>

Appeal by the 'plaintiff from a judgment in favor of the defendant, and from an order denying a new trial. Charles L. Bernheim brought this action against Albert Daggett, sheriff of Kings county, for damages for failure to return plaintiff’s execution against Nicholas Ehlers within sixty days as required by the statute. The further facts are stated in the opinion.

I. April, 1882. Appeal to general term. This action was brought by the plaintiff, a corporation, against the defendant, for making, while acting as sheriff of the county of Kings, a false return to an execution issued by plaintiff on a certain money judgment recovered by plaintiff against William Hartung and one Schutt, copartners together, for the sum of $427.86.

Appeal by defendant from an order of the special, term, directing the costs of the action to be taxed on the part of the plaintiff, and setting aside the taxation of costs in favor of defendant, and allowing no costs to defendant.

<p>Summary Proceedings.—Answer of Title.—When removal NOT EFFECTED.—INJUNCTION.</p> <p>The provisions of Code Civ. Pro. §§ 2951, 2952, relating to removal of causes from a justice’s court, where an answer is interposed, which raises a question of title to real property—do not apply to summary proceedings for the removal of squatters under section 2232, subd. 4.</p> <p>Under Code Civ. Pro. § 2265, an injunction cannot be granted upon a summary application to stay the prosecution of proceedings, to recover possession of real property, until there has been a final order in the proceedings.</p>

<p>Amendment, when allowed in favor of Municipal Corporation.</p> <p>In actions affecting public interests, such interests will not be allowed to be prejudiced by mere delay in their assertion; and an amendment of pleadings will be allowed upon proper terms, in favor of a municipal corporation, where it can be done without serious embarrassment to the rights of the adverse party, notwithstanding long delay in making the application.</p>

<p>Action fob Re-settlement of Partnership Accounts.—Special OR FEIGNED ISSUES, WHERE FRAMED.—REFERENCE IN Partnership Case, when proper.</p> <p>It seems, that the time to make .a motion for the trial of special (formerly called feigned) issues in an action not triable by jury, as of strict right,* and where there is a counter-claim interposed, begins to run after the service of the reply, even though the issue raised by the counter-claim, is not to be so tried.</p> <p>Difficult, numerous and complicated special issues should not be sent to a jury for trial, in a case triable by the court.</p> <p>In an action to open accounts and for an accounting between alleged copartners, where there was an issue as to the partnership, and the defense of an account stated and settled, the court at special term . refused to refer the trial of the action to a referee. On appeal,— Held, no error; and that the court properly exercised its discretion in refusing to refer the action, until it became manifest that a reference would serve the ends of justice.</p>

The action was brought by Catherine Browne, a married woman, to annul certain paper writings, stated to have been signed by her during coverture, and to recover possession of certain property conveyed through the medium of such writings. ' It appeared that, at and prior to the time of the execution of such paper writings, the plaintiff was lawfully possessed in her own right, as and for her separate estates, of several bonds and mortgages of the par value of $14,500, which…

<p>Action sob Partnership Accounting.—Reference.</p> <p>Where the plaintiff’s right to a copartnership account is in dispute by reason of the defendant’s pleading an account stated and settled, and also a release, the trial of the action can not be referred. It is not enough that the action is brought to obtain an accounting.*</p> <p>The real issue in such an action is upon the efficacy of the release, and that is raised by the plaintiff, not by virtue of the complaint, but in rebuttal.</p> <p>While it may be necessary on the trial to give in evidence entries in the books of account, this is not the examination- of an account made requisite by the statute authorizing compulsory references.</p> <p>The case of Welsh v. Darragh, 52 N. 7. 590, distinguished.</p>

This action was brought by Thomas Bourk against Margaret B. Murphy and others to foreclose a mortgage.

s pendens. This action was brought by Eras tus Brainerd, indorsee of a promissory note, against its maker, Martha White, a married woman, who, by the terms of the note, expressly charged her separate estate with its payment. It was drawn payable to the order of Bichard A. Manifold, who had rendered services at her special request, and for the benefit of her separate estate ; and he was joined as a co-defendant herein.

Maria Hagenmeyer died on February 2, 1882, leaving her last will and testament, the third and sixth clauses of which read as follows : “ Third. I further ordain and direct my executors, hereinafter named, to pay or take from my money the amount of one hundred dollars, for the purpose that masses shall be read for my poor soul.” “ Sixth.

Motion to continue an injunction. The plaintiff, William B. Dinsmore, as President of the Adams Express Company, an incorporated association, brought this action to restrain the defendant, “The Board of Police of the City of New York,” from arresting, impeding or interfering with the employees of the Adams Express Company on any Sunday thereafter, and particularly to restrain defendants from disturbing the ordinary business of the Adams Express Company on Sundays.

Motion to continue an injunction. The plaintiff, a manufacturing corporation, brought this action against Stephen B. French and others,.composing the board of commissioners of the police department of the city of New York, George W. Walling, superintendent of police, and Jacob Siebert, captain of police for the Thirtieth Police Precinct in said city.

Motion to continue an injunction. The defendants, the police of the city of New York, threatened to' arrest the plaintiff and other Jews for keeping open their shops and other places of business on the first day of the week.

Motion to continue an injunction. ■ The plaintiff, among other venders of cigars, sought a permanent injunction restraining the New York Board of Police from arresting Mm and interfering with Ms business and property by reason of a violation of the provisions of the New York Penal Code in selling cigars on the first day of the week, commonly called Sunday.

This action was brought in the name of Thomas J. Chamberlain and others, executors, against Hascal L. Taylor and others, to recover… Held: that as the deed of confirmation was obnoxious to the statute which makes it a penal offense to take knowingly a conveyance of land from a person not being in possession, and while the lands are in litigation (2 JR,. S. 691, § 5), the grantees could not have relief, citing Pepper v. Haight, 20 Barb. 429. The plaintiffs appealed'.