Volume 13 — Abbott's New Cases

Certiorari was issued on the relation of the Ogdensburgh & Lake Champlain Railroad Company, against G-eorge K. Pond, John C. Childs, and Matthias Emerick, as assessors, and William McKenzie, of the town of Burke in Franklin county. ' On the return, the court referred it to J. C. Saunders, Esq., to take testimony, and report the same to the court.

Trial by the court. This action was by The Mutual Life Insurance Company of N. T. against Benjamin Holloday, and others. The facts are detailed in the opinion.

Louis Tim and others (and Thomas Boyd and others in another action) obtained an attachment against the property of the defendant, Clinton H. Smith, in an action, as recited in the attachment, to recover “ damages for injury to personal property of plaintiffs, in consequence of the negligence and fraud of defendant, in fraudulently procuring credit of plaintiffs for goods sold and delivered to defendant,” and on affidavit showing that the defendant is a natural person “ who…

This action was brought by Henry Sheldon and another, constituting the firm of Henry Sheldon & Co., against Henry Clews and Ernest Zeidler, constituting the firm of Henry Clews & Co., for moneys received on collections for the plaintiffs during the ten days preceding defendant’s failure. The answer denied the fraud, and set up a discharge in bankruptcy.

02, the amount of the plaintiff’s damages. The action was brought in the Supreme Court by Burdick & Bathbun, copartners, to recover a balance of account amounting to $65. The complaint alleged in substance that the plaintiff between 1874, and 1878, sold and delivered merchandise to defendant and lent him cash which, on the 19th day of June, 1878, together amounted with interest to about $566.

<p>Accounting by Executor.—Carrying out Decedent’s Contracts.— Sale or Good-will or Seminary.—Payment or Note not Surrendered.</p> <p>The executor of a decedent who carried on a seminary, and who died in the midst of a school year for which contracts had been made with teachers and pupils,—Held, not chargeable with the loss resulting from his continuing the school until the close of the year, as it appeared that he might well have believed that it was for the best interests of the estate so to do.</p> <p>Whether the contracts between the decedent and her patrons, which were entire for a school year, were such as the executor was legally bound to fulfill, query.</p> <p>The executor sold the furniture of the school, and other belongings, including the “ good-will,” at private sale, without advertisement or other public notice, for the precise sum at which the furniture was valued by the appraisers.—Held, that he should not be charged with the value of the “good-will,” if under all the circumstances in making the sale, he acted in good faith and in the exercise of such prudence, skill and discretion as the law demands of persons in his situation.</p> <p>An executor will be allowed, on Ms accounting, the amount paid the payee of a note, although it is not shown that the payee surrendered it, if there is no proof that the note is in the hands of a bona fide holder, or that payment has been demanded of the executor within the time limited for presentation of claims.</p>

William B. Smyth sued Gfeorge W. M. Sturges on an executory contract for the purchase by defendant, from plaintiff’s assignor, of real property in the city of New York.

<p>Summary Proceedings.—Landlord and Tenant.—Lease ; Conditional Limitation, Condition Subsequent.—Ejectment.</p> <p>In an apartment lease, a provision declaring that the lease is granted “on the express condition” that the landlord, if he should deem the conduct of the tenant objectionable, might re-enter either with or without legal process, on giving previous notice and repaying rent; and that in the event of the tenant’s violation of any condition, the lease should cease at the landlord’s option,—Held, to bo a condition subsequent and not a conditional limitation.*</p> <p>Hence the landlord cannot dispossess the tenant under such a clause, by summary proceedings under the statute, but his remedy is by action.</p>

Appeal by the defendant to the General Term of the supreme court from an order of the county court of Kings county, reversing the final order of a justice’s court of the city of Brooklyn, dispossessing the defendant, from certain premises demised to him by the plaintiff, Elizabeth Luhrs, upon the return of the usual dispossess summons or precept in the justice’s court.

Motion to vacate an injunction. The plaintiff, Francis E. Erwin, brought this action against Artemas B. Hurd, and others, trustees of the First Presbyterian Society of the village of Painted Post, and one Andrew H. Smith; and in such action, procured ex parte a preliminary injunction restraining the trustees from selling to Smith a certain church edifice which had been originally erected on land granted by the plaintiff in the year 1840.

Trial of the case. The plaintiff, David F. Countryman and his wife, Emma J., brought this action for a specific performance of an alleged covenant to maintain a fence.

Motion to continue a temporary injunction pendente lite. On December 22, 1882, James Henry Mapleson, the plaintiff, entered into a written agreement in the Italian language, by which he engaged the defendant, Guiseppe Del Puente, to sing as primo lar ¿tono assoluto in theatres and concerts in the United States, from October 30, 1883, until April 14, 1884.

<p>Action to Recover for Non-payment of Interest on Town Bonds. —Ratification. —Estoppel. —New Trial.</p> <p>In a petition of tax-payers, made under chapter 907 of Laws of 1809 (authorizing municipalities to issue bonds for railway purposes), it appeared that the petitioners were a majority of the tax-payers, but not that such majority did not include proscribed persons, namely, those taxed for dogs or highway tax only; but the referee, appoint' d by the court petitioned, found that the petitioners were in fact, a majority of the tax-payers, not including such proscribed persons.</p> <p>Held, That the petition was sufficient, and that the court thus petitioned acquired jurisdiction, and that its judgment was regular.</p> <p>Where a municipality, having issued a series of bonds for railwt.j purposes, calls them in, and issues substituted bonds in their place, funding the debt represented by the first series at a lower rate of interest, any irregularity in the first issue is thereby waived, and the town is estopped from taking advantage of defenses founded upon the mistake of its own agents.</p> <p>If the municipality had intended to rely on the invalidity of the old issue, they should not have issued the new bonds in their place. Commissioners appointed to fund a municipal debt, and acting in such office for seven years, are de facto officers.</p>

Trial of the case. The action was brought by David Dows and other tax-payers of the village of Irvington against the village of Irvington and others, its trustees, to restrain the trustees of such village from raising a tax or levying an assessment to pay the expense of introducing water into the village. The case came. on for trial before a justice of the supreme court, sitting without a jury. The further facts appear in the opinion of the court.

<p>Motion for Leave to Sue as a Poor Person.—Infant Plaintiff.</p> <p>Under the provisions of the Code of Civil Procedure, an infant may be permitted to sue as a poor person notwithstanding section 3868 of the Code, which provides that infant plaintiffs shall give security for costs. Infants are favored by the courts.*</p>

Peter Marie, Frank A. Otis, George R. Fearing, Robert L. Cutting, Jr., N. A. Cowdrey, and Jacob Cromwell, plaintiffs, brought this action against Cornelius K. Garrison and John T. Denny. The cause was referred to Hon. Theodore W. Dwight, referee, to hear and determine. He rendered the following opinion on ruling upon questions of evidence vital to the merits.

<p>Reference of Disputed Claim.—Contracts; oral rescission of CONTRACT FOR SALE OF LAND; CONSIDERATION.—VENDOR and Purchaser; Interest acquired; Part performance.—Guaranty.—Evidence ; Presumption; Promissory Note. •</p> <p>A contract required by the statute of frauds to be in writing,—such as a contract for the sale of land,—may be rescinded by a subsequent parol agreement. *</p> <p>The purchaser’s interest in the land under the contract is one created or annexed to the contract by legal implication as an incident to it; and whenever the contract is extinguished, his interest in the land ceases by operation of law. The interest is not such as, under 2 R. S. 134, § 6, can be surrendered only by writing.</p> <p>Even if an oral rescission of a contract for the sale of land would be void under the statute of frauds were it entirely executory, yet where the purchaser surrenders his contract to the vendor, takes no further steps under it and permits all his rights to lapse, this constitutes such a part performance, that it would be a fraud upon him not to permit him to recover the consideration for his surrender, and he may maintain his action therefor.</p> <p>Where the vendor authorized another to procure a rescission of the - contract, and the latter did so, and agreed to pay the purchaser a certain sum for the surrender of the contract.—Held, that his promise was not an agreement to answer for the debt of another, and was not therefore void because not in writing.</p> <p>But such promise is void for want of consideration if the contract of purchase was made at the request and pursuant to an agreement of the purchaser with the promisor to surrender the contract whenever requested. (Opinion of referee.)</p> <p>A promissory note is presumptive evidence that a settlement was made at the date of it, of all demands between the parties, and a statement between them at that date, of a balance due the payee from the maker, upon such settlement, of the amount of the note. Ib. '</p> <p>Proof that the note was given for a loan of money, raises a presumption, equally conclusive with that raised by the note itself, that the maker had no claim at that time against the payee. Ib.</p>

<p>Trial by the court.</p> <p>This action was by Edward H. Emerson against Clarence M. Boot to recover the amount paid by the plaintiff as part payment of the price and as broker’s commissions, on account of his purchase of real estate from defendant. '</p> <p>Homer Morgan, a real estate broker, who had been employed by former owners to sell the premises Fos. 34 Broadway, and 69 Few Street in the City of Few York, upon receiving an offer therefor'from plaintiff, sought out the defendant, the then owner, and conducted negotiations which resulted in the execution of a contract to sell, the purchaser to pay the broker’s commissions upon the sale. The contract was dated April 20,1883, at the request of the plaintiff’s agent, though executed, in fact, on the following day, and the premises were therein described by street and number. Prior to this Mr. Morgan’s clerk, without defendant’s authority, had given plaintiff’s agent a diagram showing the premises to be of a certain width, but the deed tendered on the day fixed for closing the sale showed the premises to be about four feet less in width than appearedfrom the diagram. Plaintiff declined to accept this deed, and brought this action to recover $2,500 paid on execution of Ms contract, $1,275 commissions paid to Morgan, and $1,380 commissions paid to a broker through whom he had made a contract of re-sale on April 20, 1883, the day before the actual signature of his contract to purchase from defendant.</p>

Trial by the court. This action was brought by Abraham Siegel against Ludewig F. J. Anger, for specific performance of defendant’s contract for the purchase of certain real estate. Plaintiff claimed title to the premises under William J. Pease, who purchased them at a sale on foreclosure of a mortgage by one Bancker to one Mott.

<p>Motion to set aside Taxation of Costs.—Costs on Reference of disputed Claim against Estate ; Taxation, now REVIEWED.</p> <p>Where an order, confirming a referee’s report in favor of defendants directs “ that the defendant have judgment for costs and disbursements of this action against the plaintiff,” it is not error for the clerk to tax costs as in an action, as the order is his guide; if costs should have been taxed as in a special proceeding, the remedy is by-appeal from the order, and not by motion to set aside the taxation.</p> <p>Whether a reference of a disputed claim against an estate under 3 R. S. 89, §37, be deemed a “special proceeding ” or an “ action,” the court has power, under Code Civ. Pro. § 3340, to award costs “asin actions brought in the same court.”</p>

Hearing on a verdict directed for the plaintiff, subject to the opinion of the general terra. The Northampton National Bank sued Amos M. Kidder and others, for the conversion of railway bonds stolen from the bank, and afterwards bought and sold by the defendants. The bonds contained a covenant making the principal due in case of default in the interest coupons, or of default in the stipulated payments to the sinking fund. Such defaults had occurred for a long period.

Frederick May sued Howard K. Burras to recover the amount of. a check drawn by him and unpaid. The facts appear in the opinion.

Honegger and others sued Wettstein and others, to iecover from defendants a balance due for goods sold and delivered, consigned or caused to be consigned, and for commissions and moneys paid out. Other details of the facts appear in the opinion.

I. February, 1879. Appeal from a judgment for the plaintiff entered upon the report of a referee. This action was brought by Emilie Nason against Benjamin L. Ludington for the conversion of shares of gas stock. The answer alleged that one H. W. Nason, the husband of plaintiff, was the owner of the stock, and that defendant purchased it of him, and thereby became the owner thereof.

<p>Certiorari.—Constitutional Law; local bill.—Municipal Corporations; REMOVAL OF OFFICERS.—TRIAL; APPOINTMENT OF COMMITTEE OF LUNATIC.</p> <p>The Act of 1880, c. 377,—entitled, “In relation to the government of the city of Brooklyn,” and providing for the reconstruction of the fire department by placing it under one head,—does not offend the constitutional provision that no private or local bill “ shall embrace more than one subject, and that shall be expressed in its title.”</p> <p>Nor does the act offend the constitutional provision that existing laws shall not be made a part of an act unless inserted therein, as it contains within itself, and without reference to the city charter or other existing acts of municipal legislation, a complete and lawful tribunal for the trial of all members who offend against the rules and discipline of the fire department. So held, on certiorari to review the act of the fire commissioner of Brooklyn in dismissing the relator from the fire department.</p> <p>The fire commissioner of Brooklyn has power to dismiss a fireman upon his trial and conviction upon a charge of incompetency because of the excessive use of spirituous liquors, as this is “ misconduct or neglect of duty,” as used in L. 1880, c. 377, § 7.</p> <p>The relator being represented by counsel, the fact that he did not appear on the trial but was at the time in a lunatic asylum, and no committee of his person was appointed, does not render his conviction and removal illegal, for until he had been judicially declared a lunatic, the commissioner was under no obligation to initiate proceedings for the appointment of such committee.</p>

The Third National Bank of Buffalo, to recover on a promissory note made by the defendant, sued Georgeanna J. Guenther, in the name of Henry T. Gillett & Co., in which name she carried on a mercantile business for her own account. At a jury term of the court the bank was non-suited, and from the judgment entered on the non-suit she appealed to the General Term of the superior court of Buffalo. The further facts appear in the opinion of the court.

This action was brought by Julia H. Chadwick against Cory don A. Woodward, for rent due on a lease. The facts appear from the opinion.

Trial by the court. A former decision, overruling a demurrer to the complaint, is reported in 10 Abb. Af. Q. 400. The facts and nature of the action appear fully from the opinion.

Motion to vacate injunction. The village of Brockport brought this action against Henry Norton Johnston, to enjoin the construction of wooden buildings within limits where the erection of such structures had been forbidden by by-law of the village.

Complaint by the relator, George B. Balch, as president of the Yonkers Society for the Prevention of Cruelty to Children, against the defendant, Henry Strickland, under section 899 of the Code of Criminal Procedure, as a disorderly person in refusing to provide for his child.

<p>Sales; action for buyer’s refusal to accept.—Attachment-, AFFIDAVIT AS TO DAMAGES.</p> <p>To obtain an attachment in an action to recover damages for a breach of contract, the plaintiff must show by proof that he is entitled to recover a specific sum.</p> <p>A general averment of damage is not sufficient.</p> <p>And when the affidavit shows a contract for the sale and delivery o'f goods, refused by the purchaser when duly tendered by the seller, the sum alleged as the damage sustained must affirmatively appear to be the difference between the contract and the market price of the property at the time for delivery.</p>

<p>Undertaking on Appeal; Code Civ. Pbo. §§ 1356, 1311, 1333.</p> <p>To effect a stay, the undertaking on appeal from a judgment affirming a money judgment must, under Code Civ. Pro. § 1333, secure the judgment so affirmed.</p> <p>On an application made under section 1356 or section 1311, to mark a judgment secured on appeal, the sureties must have notice.</p>