Volume 151 — New York Reports

This action was originally commenced against Norman M. Allen and Hoyt M. Allen as co-partners in the business of banking at Dayton in this state, under the firm name of Norman M. Allen & Son. While the appeal to the General Term was pending Hoyt M. Allen died, and Norman M. Allen is alone respondent.

The nature of the action and the facts, so far as material, are stated in the opinions. Held: under the law of the state of Maine, the place where the lease was made and was to be performed, that such contracts are against the public policy of that state and void, and the lease being void where it was made, it is • void everywhere.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in denying the defendant’s motion to dismiss the plaintiff’s complaint and in submitting the case to the jury, as the negligence of the plaintiff contributed to the injury which she sustained.

The facts, so far as material, are stated in the opinion. Certiorari is the proper remedy for the review of the proceedings that have been taken by the respondent for the acquisition of the relators’ premises. (People ex rel. v. Village of Haverstraw, 137 N. Y. 88.) The provisions of the act of 1893, with respect to the selection of a jury for the assessment of the damages sustained by the owners of the property whose lands are taken for street purposes, are unconstitutional.

<p>1. Real Estate — Devolution, on Death op Grantor, of Right op Re-entry por Breach of Condition. The possibility of reverter, by the exercise of the right of re-entry, on the happening of a breach of a condition subsequent, annexed to a grant in fee, requiring a re-entry in order to revest the former estate, is not descendible or devisable, either at common law or, under the Revised Statutes; but, upon the death of the grantor before re-entry, it devolves upon his heirs at law by force of representation and not by descent.</p> <p>2. Who Can Enforce Breach op Condition. No one can take advantage of the breach of a condition subsequent annexed to the grant of a fee but the grantor or his heirs; or, in the case of an artificial person, its successors.</p> <p>3. Grant on Condition of Erection of a Church, etc., within a Reasonable Time—Not a Personal Covenant — Enforcement of Breach. A grant in a deed to an ecclesiastic, “to have and to hold the premises unto the said party of the second part, his heirs and assigns, to his and their own proper use forever, upon the conditions following, to wit; That said party of the second part shall consecrate, or cause to be consecrated, the said property for the purpose of erecting a church building, and shall, within a reasonable time, erect, or cause to be erected, such building,” does not create merely a personal covenant on the part of the grantee, but constitutes a condition subsequent qualifying the conveyance; and, in case of a failure to perform the condition within a reasonable time on the part of the grantee or his heirs or assigns, the estate conveyed may be defeated at the option of the grantor or his heirs.</p>

Appeal by the Board of Supervisors of the County of Queens from an order of the General Term of the Supreme Court in the second judicial department, entered December 3, 1895, which affirmed a final order of Special Term aivarding a peremptory writ of mandamus directing the boards of supervisors of the counties of Kings and Queens to rebuild a bridge across ¡Newtown creelc at ¡Maspeth avenue. The facts, so far as material, are stated in the opinion.

Appeal by the plaintiffs from a judgment of the General Term of the Superior Court of the city of New York, entered December 6,1894, which affirmed so much of a judgment of a Trial Term as dismissed the second cause of action set out in the complaint. The plaintiffs, as co-partners, entered into a contract with the defendant for constructing a sewer and appurtenances.

Daniel B. Eayerweather, an old resident of the city of New York, died on the loth of November, 1890,- leaving a will, four codicils, an estate of several millions, consisting chiefly of personal property, and debts amounting to less than $10,000. He. left neither child nor descendant, but a widow and three nieces, his only heirs at law and next of kin, survived him.

The facts, so far as material, are stated in the opinion. Delator was entitled to have his damages assessed in this proceeding. (Code Civ. Pro. §§ 2082, 2088, 2550; 5 Wait’s Pr. 592; 7 Am. & Eng. Ency. of Law, 965, 966; 5 Am. & Eng. Ency. of Law, 373 ; Town of Mentz v. Cook, 108 N. Y. 504; People ex rel. v. Batchellor, 53 N. Y. 137; People ex rel. v. Bd. of Suprs.

<p>1. Sale by Manufactubeb of Goods — Implied Wabbanty. In tlie case of a sale where the seller is the manufacturer of the article sold, and the contract is executor}- and for the delivery of something of a particular kind, there is an implied warranty that the article shall be merchantable and free from any defect arising from the process of manufacture or the use of defective materials, and not discoverable by ordinary inspection and tests.</p> <p>2. Assumed Agency to Sell — Adoption—Obligation Imposed upon Pbincifal. The adoption, by a manufacturer, of another’s assumed agency to sell his product for him, charges him with knowledge of the use to which the product is to be put, and imposes tlie duty of delivering goods which shall be merchantable and reasonably fit for that use, and a consequent liability for a failure attributable to defects in the process of manufacture or in the materials employed.</p> <p>3. Acceptance oe Goods — Latent Defects. The obligation arising from the implied warranty imposed upon the seller of goods manufactured by himself, survives their acceptance, if tlieir defects were not discoverable upon inspection by ordinary tests.</p> <p>4. Sale oe Cloth by Maker— Defects Discoverable by Wear — Breach oe Warranty. When, in an action by a manufacturer of clothing to recover from a manufacturer of cloth damages for a breach of the latter’s implied warranty that felt manufactured and sold by him was merchantable and fit for the purpose intended, the plaintiff’s evidence tends to show that the felt contained defects in particular places, caused by an improper process of manufacture, and discoverable only by actual wear, the plaintiff is not concluded by an acceptance and retention of the felt and its manufacture into clothing, but the question of fact is presented whether the felt was merchantable.</p>

Appeals from orders of the Appellate Division of the Supreme Court in the first judicial department, entered May 25 and July 31, 1896. This proceeding was brought under section 2420 of the _Code of Civil Procedure, for the voluntary dissolution of a corporation organized and existing under chapter 267, Laws of 1875.

This action was brought to recover damages for the death of plaintiff’s intestate through the alleged negligence of the defendant. The facts, so far as material, are stated in the opinion.

<p>1. Insolvent Corporation — Payment, by Receiver, of Claim for Rent to Accrue for Unexpired Term — Re-entry and Reletting. If premises leased to a corporation are vacated before the expiration of the term, on the appointment of a receiver in a statutory proceeding for the dissolution of the corporation for insolvency, and the lessor, in accordance with the terms of the lease, re-enters and relets to a third party for the unexpired term, at a less rental, the difference between the rent for the balance of the term reserved under the original lease and that reserved under the subletting constitutes a definitely established claim against the corporation, wdiich the receiver is empowered to recognize.</p> <p>2. Receiver Distinguished from Assignee. The situation of a receiver of an insolvent corporation is less' restricted than that of an assignee under a general assignment for the benefit of creditors,, whose powers and duty are prescribed by that instrument.</p>

in the first judicial department, entered December 3, 1894, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court. This action was brought to recover the amount of a judgment recovered against the city of New York by reason of the alleged negligence of contractors, against whose acts the defendants had indemnified the city. The facts, so far as material, are stated in the opinion.

Appeals, by certification, from a judgment of the General Term of the Supreme Court in the fifth judicial department, entered October 31, 1891, which affirmed an interlocutory judgment overruling demurrers to the complaint.