Volume 16 — New York State Reporter

<p>1. Will—Construction op.</p> <p>The testator by her will directed and empowered her executors “ to sell and convey all the real estate of which I shall die seized, for the best price that can be obtained for the same and * * * the proceeds arising therefrom. * * * I give and bequeath to my said executors in trust, as follows: The same to be by them safely and securely invested and reinvested, and the interest and income arising therefrom to be by them, annually, after the same shall be so invested, paid to my said two daughters in equal portions during their natural lives. * * * Ami upon the death of each of my said daughters, the principal * * * shall be paid by my said executors to her then living children in equal proportions.’’ Held,, that the land of which the testator died seized, was by the provisions of her will at her death converted into personal property. That the fact that the real estate in question was not sold for a long time by the executors did not affect its character as personal property.</p> <p>3. Practice—When dependant entitled to judgment.</p> <p>Even though an answer is held insufficient as against a demurrer, yet the defendant will be entitled to judgment where the plaintiff’s complaint fails to state a cause of action.</p>

The plaintiff Malcolm Calhoun, with twenty-six other persons associated with him, bring this action as taxpayers • of the town, of Andes, in the county of Delaware, state of New York, under and in pursuance of section 1925 of the Code of Civil Procedure, as well as is assumed, under and in pursuance of the provisions of chapter 531 of the Laws of 1881, against James Ballantine, as supervisor of the said town of Andes, and the remaining defendants as the holders and owners of…

Plaintiff alleges that in the year 1883, in the town of Richland, he and his assignors were patrons of a cheese factory; that the defendant was by himself and his servants operating said factory in manufacturing the milk furnished by the patrons into cheese, and “was to care for the same and sell it for cash and deliver the money to the respective patrons, and was to have the sole and exclusive possession, custody and control of said milk after it was delivered each day by…

<p>Gift—Evidence of—When sufficient.</p> <p>A verdict founded solely on oral evidence that a decedent in his lifetime, gave away a part of his real estate to which he held the legal title, and of which he apparently died possessed, will not he sustained unless the evidence of the gift is clear and satisfactory.</p>

At the close of the evidence the defendant asked the court, “to allow the case to go to the jury to determine the question whether the plaintiff performed, or offered to perform his part of the contract.” The motion was denied, and an exception taken by the defendant. The court directed a verdict for the plaintiff “for $500, with interest from the 2d day of December, 1886.” The defendant took an exception to such direction.

<p>1. Action for money had and received to use of another—Raises</p> <p>AN ASSUMPSIT FROM MISAPPLICATION.</p> <p>In an action for money had and received, the law raises an assumpsit from the misapplication of money received to the use of another.</p> <p>2. Same—Evidence.</p> <p>One, George F. Cleveland became entitled to one-fifth of his father’s property in virtue of a will. He died intestate leaving the plaintiff, an in fant, his child, and defendant, his widow, and some property in Minneapolis. The entire income of all of decedent’s property had been paid to defendant. This action was brought for money had and received. The answer set up among other things that the defendant had expended all plaintiff’s share in her father’s estate in the care, support and education of said plaintiff Held, that defendant was entitled to show how much money she had expended in supporting plaintiff, although no' guardian had been appointed for her, and although no order of the court had been made allowing the defendant to use the funds and property of the plaintiff in such support and maintainance.</p> <p>3. Same—Practice—Right to recover.</p> <p>The plaintiff was entitled to recover of the defendant for moneys received by her which rightfully belonged to the plaintiff whether the same came to the hands of defendant as a part of the estate of the father or grandfather. That it was not necessary that an administrator should be appointed to recover the funds from the hands of defendant.</p>

<p>The action was commenced in the Jefferson county special term of the supreme court. The plaintiff sought to obtain partition of lands and damages for waste alleged by him to have been committed on same by defendant, Hannah tT. Maxon,</p> <p>The defendant, Hannah T. Maxon, answered, claiming to be the owner of a portion of the lands described in the complaint, and denied the alleged waste. The defendant, Hall, answered, disclaiming any interest in the lands.</p> <p>The trial court dismissed the complaint as to Hannah T. Maxon, but allowed partition as between plaintiff! and Mrs. Dimick; but after granting a reference on subject of waste, and the coming in of the report, concluded not to pass on the question of waste, but to reserve the question wholly from the case, Judgment was accordingly so entered on the findings of the court, and plaintiff excepted, and the plaintiff duly appealed to this court.</p>

<p>Malicious prosecution—Proof—Burden of proof.</p> <p>The defendant brought an action in a justice’s court for libel against the plaintiff, for printing and circulating a certain poem written by plaintiff. This was of such a character as to furnish the defendant a probable cause of action. The defendant discontinued said action on the return day, because the justice had not jurisdiction. Held, that the defendant was not liable for malicious prosecution in bringing said action, unless he knew that the justice’s court was without jurisdiction of the action for libel which he brought therein. That the burden was upon the plaintiff to prove that the defendant knew that a justice’s court was without jurisdiction of his action.</p>

<p>Attachment—Damages on vacating.</p> <p>■ The defendant having a lien upon ten cords of wood drawn to a certain railroad station procured an attachment against said wood in an action in a court of a justice of the peace. This attachment was delivered to the station agent and he afterwards wrongly informed the plaintiff herein as to the amount of wood covered by said attachment. Before the plaintiff had heard of this attachment it had been vacated and the wood was not moved under said attachment. Held, that the plaintiff was only entitled to nominal damages for the constructive trespass of defendant upon this wood. That damages could not be assessed for detention of this wood after it was vacated.</p>

<p>Appeal from order denying defendant’s motion for a bill of particulars.</p>

<p>AppTeal by the plaintiff from judgment dismissing the complaint upon a trial before a referee.</p>

<p>Appeal from judgment sustaining counter-claim.</p>

Louisa M. Ramsdell died at Rochester, .R. Y., on January-17, 1888, leaving two adult children surviving her, both of whom are insane. Her alleged last will and testament, dated July 16, 1883, was duly propounded for probate in the surrogate’s court of Monroe county. This instrument directed nearly the whole of her estate, amounting to over $100,000, to be expended in the erection of a tomb for herself and family.

<p>Proceedings for an accounting, and for payment of legacy.</p>

Appeal by plaintiffs from a judgment entered in favor of defendant after a trial at the circuit, before the court, without a jury.

<p>Appeal from a judgment convicting the defendant of murder in the first degree entered upon the verdict of a jury rendered at the Oyer and Terminer of Suffolk county.</p>

' Appeal by the defendant from a judgment entered upon the report of a referee in favor of the plaintiffs against the ■defendant.

<p>This is an appeal from a judgment entered upon the verdict of a jury at the circuit.</p>

This action was brought to eject from a mine of iron pyrites on the premises described in the complaint, the defendants, who were in possession thereof, and to have it adjudged that plaintiff was entitled to the possession thereof, and was the owner of the ores and minerals in and upon the premises, also that the leases of said premises, made between certain of the defendants, were void, and conveyed no rights in said premises or to the ores therein, and to quiet and confirm…

Action to foreclose a mortgage dated November 25,1881, given by the defendant Stratton Killam to the plaintiff for $4,600, covering 120 acres of land in the town of Mexico. This mortgage was given for a part of the purchase-money and the defense is that the plaintiff at the time of the sale verbally warranted that there was a certain amount of timber and lumber on the property. That in fact there was no such amount to defendant’s great damage, which he claims, to recoup.

<p>Mortgage—Infant mortgagor—Foreclosure against—Effect of failure to make personal service on infant—Service of process on HUSBAND ALONE NOT GOOD SERVICE.</p> <p>Where a mortgage upon real estate was executed by plaintiff, then a minor, with her husband in 1836, and where in the subsequent proceedings,' under the Chancery practice which then existed in this state, to foreclose the mortgage, she, (still under age), was made a party defendant, but did not in any manner appear in the suit and was not personally served with the summons, (although left with her husband with a request that he would hand it to her), Held, that the judgment taken against plaintiff in the foreclosure suit was void, and she was in no way affected as to her right to dower. This is adverse to Feitner v. Hoeger, 15 N. Y. State Rep., 377, N. Y. Common Pleas.</p>

Appeal by plaintiff from judgment entered on verdict for defendants and from order denying motion for new trial made upon the minutes.

Appeal by defendants from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes.

<p>Appeal from an order granted by Justice Dugro, January 3, 1888, appointing a receiver of the defendant.</p>

<p>Motion by defendants to vacate the summons and dismiss the complaint for want of jurisdiction.</p>

<p>Common carrier—Liability for baggage after arrival at destination.</p> <p>The plaintiff, who was a passenger on the defendant’s road, and his baggage reached their destination, via said road, at about eleven o’clock on the night of Friday. The baggage was placed by the defendant in the baggage room and was not called for until the following Monday morning. Meanwhile and on Sunday morning the said baggage room and with it plaintiff’s baggage was destroyed by fire. Held, that the defendant was not liable to pay the value of plaintiff’s baggage destoyed as aforesaid.</p>

<p>1. Adverse possession—Party in possession under a tax lease—Bound BY THIS AS HIS TITLE UNTIL HE ACTUALLY DISAFFIRMS IT—TENANT ES-TOPPED FROM DENYING- THE TITLE OF HIS LESSOR.</p> <p>The defendants were in occupation of the premises in question and claim title to the same by adverse possession, by reason of the occupancy of George Matsell, Sr. He entered into possession in 1849 under a tax lease, built upon the premises and collected rents until in February, 1857, he then conveyed to one Mickle, at which time he also assigned to Mickle the tax lease. Mickle thereupon entered into possession and received the rents for a year, when he reassigned his possession to Matsell, Sr., but without reassigning the tax lease. Matsell, Sr., then re-entered upon the premises. Subsequently, in November, 1861, a tax lease was executed by the mayor, etc., to one Owens, and he assigned it in 1862 to Matsell, Sr. Matsell executed a deed_ of bargain and sale of the premises to his son, George W. Matsell, Jr., in 1870, and he entered into possession of the premises and continued to occupy them until the commencement of this action in 1883. During the whole of his occupancy of the premises, Matsell, Sr., never, in any way, disaffirmed or impugned the validity of the tax lease to him or set up or claimed any other title to the premises than that which depended on the tax lease, and he made no claim that it was invalid. The defendants claim that these tax leases were void. Held, that as he had derived from it and enjoyed all substantial advantages and emolument as if it was a valid lease he could not be allowed to impugn its validity. That a tenant accepting the advantages of a lease is estopped from denying the title of his lessor or the truth of the recitals in the lease.</p> <p>2. Same—Entry under license to collect rents—Does not constitute AN ADVERSE POSSESSION.</p> <p>_ Held, granting that the tax leases were void, they yet would be valid as licenses, enabling Matsell, Sr., to enter upon the premises and collect the rents thereof, and that possession so obtained does not constitute adverse possession.</p> <p>3. Same—What constitutes adverse possession—Possession alone not SUFFICIENT.</p> <p>Mere occupancy of land is not adverse possession. The requisites are occupation and the quo animo. To defeat an action of ejectment the occupation must be under claim of title, hostile to every and all other title.</p> <p>4. Ejectment—Action of—Title of plaintiff—What must be proved— Possession—When presumed.</p> <p>The plaintiff in an action of ejectment can recover only on the strength of his own title, not in the weakness of his adversary’s. The plaintiff must prove that he or his ancestor’s predecessor, a grantor, was seized or possessed of the possession within twenty years before the commencement of the action. Where the legal title is upheld possession is presumed.</p> <p>5. Evidence -Documentary—Old maps filed in resister’s office—Ad" MISSIBLB AS PUBLIC DOCUMENTS.</p> <p>Maps held in the register’s office and for many years in the custody of the public officer and in public use, are entitled to be regarded as public documents subject to public use, and as such admissible in evidence.</p>

This appeal brings up for review exceptions taken by the plaintiff and appellant, and ordered to be heard in the first instance at the general term. The action was brought to recover for services claimed to have been rendered as county bookkeeper between the 9th day of August, 1872, and the first of May, 1874.

<p>Statute of limitations—When cause of action saved from reins BARRED BY—SERVICE OF SUMMONS—CODE ClV. PRO., § 399.</p> <p>Where the summons in an action on a promissory note has been issued to the sheriff for service two days before the six years limitation for bringing suit on such cause of action, and within sixty days thereafter the summons was served by substituted service, the cause of action is saved from being barred, because substituted service operates to produce the same results as a service by publication, under section 399 of the Code, would accomplish, in defeating the statute of limitations.</p>

<p>Appeal from a judgment in favor of the plaintiff ■entered upon a verdict of a jury rendered at the trial term of said court and from an order denying a motion for a new trial on the judge’s minutes.</p>

<p>Negligence—When question fob jury.</p> <p>The plaintiff was injured by falling over the handle of a truck lying at a place where customers were invited to go. The handle was three feet long, made of iron, and lay upon the floor, or nearly so, for its entire length, and the cross-piece was nine inches in length. It could not be seen by a person passing by like the truck itself or a pile of goods. 1 here was evidence tending to show that the handle was usually placed in an upright position. Held, that whether the handle was left in a reasonably safe position was a question for the jury.</p>

<p>Appeal from a judgment in favor of defendant, entered upon an order dismissing the complaint, granted on motion of the plaintiff at the close of the testimony, on the trial before a jury at the trial term of said court.</p>

<p>Appeal from a judgment in favor of defendant and dismissing the complaint entered upon the trial of the case before a jury at the trial term of said court. -</p>

This action was brought by the plaintiffs to restrain the defendant from selling whiskey under the name of “ Maryland Jockey Club.” The plaintiffs claim as a trade mark the name “Maryland Club,” as applied to whiskey, and allege that the name used by the defendant is an infringement upon their trade mark.

<p>1. Negligence—Measure of damages—Judge’s charge.</p> <p>In an action for damages for personal injuries which plaintiff alleged he had sustained through the negligence of defendant, the court charged the jury "that as to the amount of damages you must confine yourself wholly to what would he a compensation for the damages he actually received, and that it has been proven to you he did receive, and which are the proximate and natural result of the injury he received. He was subjected to intense agony. He remained in bed for some weeks. * * * He claims that he is still under the necessity of using medicines and taking remedies. There is no doubt that this plaintiff has suffered pain; there is no doubt that the injury inflicted was, at the time it was inflicted painful and somewhat severe, and further that he will be subject to this injury for the future, is matter of necessary inference from his present suffering and con dition * * * .” Held, that under the charge the jury was not at liberty to give anything for the cost of medicines theretofore taken. They</p> <p>were confined to compensation for the- consequences of the injury as described by the judge. The jury could have found something for the plaintiff's being obliged to take opium, chloroform and quinine, as they are uncomfortable nauseous and destructive of appetite.</p> <p>.3. Same—Request to charge—When ambiguious—What exception not AVAILABLE.</p> <p>The defendant’s counsel asked the court to charge “ that the jury cannot upon the testimony in the case, allow damages for medicines, lotions or medical material.” Held, that the request, if charged would have been ambiguious. That a party should not have a right to avail himself of an exception to a ruling upon a matter unnecessarily introduced by himself, only for the sake of the exception.</p> <p>3. Same—Evidence of exclamations—How far admissible.</p> <p>Exclamations by the plaintiff made after the accident as follows: "‘Take these splinters out of my leg; take these splinters out,” are admissible in evidence.</p>

<p>Foreign executor—Not a party to action against testator—Judgment BY DEFAULT—WHEN APPEAL NOT AUTHORIZED BY EXECUTOR— Code Civ. Pro., §§ 1294-1296.</p> <p>Where a judgment was rendered against a non-resident by default, who thereafter died and an executrix was appointed in another state, but had not taken out letters in this state: Held, that the executrix not being a party to the action, is not within the provisions of section 1294 of Code of Civil Procedure and cannot appeal; that she is entitled to become a party and may appeal when she has complied with the provisions of section 1296.</p>

<p>Attorney—Purchase of land by, with purpose of bringing action to GET POSSESSION THEREOF—NOT WITHIN CODE ClV. PRO., § 73.</p> <p>An attorney is not prohibited by Code Civ. Pro., § 73, from buying land or an interest in land, where such land is in the possession of another, for the purpose and with the intent of getting possession of such land by means of an action.</p>

<p>Usury—Usurious contract cannot be rendered valid.</p> <p>A usurious security cannot be made good, but the parties to the usurious transaction can reform it. To accomplish that end the usurious contract must be mutually abandoned by the parties and the securities cancelled or destroyed so that they can never be made the foundation of an action. A new contract may then be made free from the taint of usury.</p>

<p>Taxes and assessments—Illegal tax.</p>