Volume 2 — Silvernail Supreme Court Reports

<p>Fleadmg. More definite and certain.—By rule 22 of the general rules of practice, a motion to make a complaint more definite and certain is required to be made before the service of a demurrer or an answer.</p>

<p>Arrest. Agent. Section 549.—The complaint, in order to justify an arrest in an action against an agent, must contain a specific allegation that the money or property, for the misappropriation of which the action is brought, was received by such agent in a fiduciary capacity.</p> <p>See Note at the end of this case.</p>

, derived by them from patents acquired by them which in equity were adjudged, to belong to a corporation of which they were directors.

Action against a physician for malpractice. The defendant, when plaintiff rested, moved for a nonsuit on the ground that plaintiff had failed to prove a cause of action. The motion was denied and the defendant took the following exceptions. “First. To that branch of the charge submitting to and instructing the jury to find whether defendant used,diligence and reasonable knowledge and care to ascertain if it was a proper operation under the circumstances of the case. “ Second.

This was an action in replevin to recover the possession of a quantity of boots, shoes and rubbers, held by the defendant, O’Gorman, as assignee, under the general assignment of Dennis Murphy, who obtained possession of the goods by virtue of purchases, which the plaintiffs claimed were fraudulent, so that no title passed. Murphy was engaged in business at the city of Oswego and also at Oswego Falls.

Action was brought for damages for an alleged wrongful entry on premises owned by defendant and occupied by plaintiff under lease. The entry was made in pursuance of a notice served on defendant by the department of buildings of the city of Brooklyn to repair a building. Appeal from a judgment dismissing the complaint.

Action for specific performance of a contract by defendant to exchange a house and lot with plaintiff for two houses and lots. Complaint was dismissed. Appeal from judgment on dismissal of complaint.

<p>1. Appeal. Referee.—The refusal of a referee to respond to a request to find is not a ground for reversal, unless such refusal is prejudicial to the appellant. In view of an adverse finding upon the only question involved in the case, the referee’s refusal to find requests, though sustained by the evidence, is harmless.</p> <p>2. Hvidence. Memoranda.—The admission in evidence of an inventory, made by the witness at the time of the transaction, on proof that it was then correct; is proper.</p> <p>3. Same. Intent.-—In an action for conversion against a sheriff for a levy and sale of property claimed by plaintiff on an execution against her husband, they may testify that, in the sale and transfer by him to her, they had no intent to hinder, delay or defraud creditors.</p> <p>4. Husband and wife.—A transfer of personal property from husband to wife is valid, when made in good faith and based upon a sufficient consideration.</p> <p>. See note at end of case.</p>

<p>1. Contract. Promise to pay.—Wherever a promise to pay money out of property, to be received from a decedent’s estate, in execution of his request, has been enforced, it has been made by a person who, by descent, devise or bequest, has received from the decedent property out of which the proposed devise or legacy would have come, and has prevented the making of such proposed devise or legacy; the mere proof that the promise to pay has been made is not sufficient to justify a recovery.</p> <p>2. Same.—In order to sustain a claim that a husband has obtained title to his wife’s property by reason of a promise to her that her money should go to her children after her death, without a will, it. must be shown that he, by virtue of such promise, obtained from his wife’s estate money which she otherwise would have given to them.</p> <p>3. Same.—Where the personal property of a wife came to her from her father in 1845, and there was no evidence that her husband had not reduced it to possession, or held it in trust for her, there is not sufficient proof to show that he obtained any property from her by his promise that would otherwise have gone to her children, and a claim of her son against the estate of the husband was properly rejected.</p> <p>See note at end of case.</p>

<p>1. Municipal corporations. Assessments.—A preliminary resolution of the common council of the city of Buffalo, declaring that the proceedings are for the purpose of extending a certain street, and giving the lines of such extension to the termini of such line, is a sufficient compliance with the requirements of the charter of the city of Buffalo.</p> <p>2. Same.—Whfere the notice of application for the appointment of commissioners states that such application will be made for their appointment, “ to appraise such lands and property,” it is also a sufficient compliance.</p> <p>:3. Same. Proceedings, when not void.—-The proceeding, in an action brought by property owners, will not he vacated on the ground of irregularity, where there was no change in the description of the lands assessed to any of them.</p>

The complaint contained two claims. The first was for goods sold and delivered. The second, on a special contract by which defendant was to draw logs to plaintiff’s mill, enough to make 100,000 feet of lumber, and to pay plaintiff $2 for sawing each 1,000 feet. And plaintiff alleged that defendant drew only enough to make about 40,000 feet, and had not paid for the sawing of these. The referee found, specifically, several matters of dealing between the parties.

<p>1. Husband waiidife. Diability.—A married woman is liable for work and materials furnished at her husband’s request, if applied to her property in her presence and without objection; and the law will imply a promise to pay for the materials furnished and services performed on her separate property.,</p> <p>See note at end of case.</p> <p>2. Questions of fact. Credibility.—The credit to be given to evidence of interested witnesses is a question for the jury.</p>

This is a proceeding under the statute to establish a claim-in favor of the plaintiff against the administrator of his father’s estate. The claim is based upon' a note made by defendant’s testator, and the defense is that the nóte was without consideration. Appeal from a judgment entered on the report of a referee, and from an order granting costs.

<p>New trial. Newly discovered evidence.—Newly discovered evidence, which will not affect the result of the first trial, does not furnish ground for the granting of a new trial.</p>