Volume 21 — Abbott's New Cases

Isabella Gumming sued the Brooklyn City Railroad Company to recover damages for the loss of services of her five year old child, Bessie 1. Gumming, who was injured by one of the defendant’s trains while attempting to cross the street. The case was tried before a jury, at a Kings County Circuit. -It appeared on the trial that the child’s leg was amputated in consequence of the injury.

This was an action brought by Joseph Feiber against .the Manhattan District Telegraph Company to recover the value of certain clothing. The facts are stated in the opinion. cited De Rutte v. N. Y., &c. Telegraph Co., 1 Daly, 547; Breese v. U. S. Tel. Co., 48 N. Y. 132; Alexander v. Cauldwell, 83 N. Y. 480; Adams v. Mills, 60 Id. 533; McPherson v. Western Union Tel. Co., 52 Super. Ct.

This was an action for damages for an assault and battery alleged to have been committed by the defendant upon the plaintiff on the 1st day of October, 1884, at his house at Tarry town. The defense was a justification alleging that the defendant was then possessed of a certain house at Tarry town, where he lived with his family.

Motion to require plaintiff to reply to new matter in answer. This action was brought by Ichabod T. Williams, Thomas Williams and Henry K. S. Williams, partners under the firm name of Ichabod T. Williams, against Walter F. Kilpatrick.

Appeal for a judgment entered on the dismissal of the plaintiff’s complaint at the trial of this action without a jury in the Second Judicial District. James Stewart and another sued George H. Robinson and others, executors and trustees of the will of Joseph Col-well, deceased, to charge his estate with liability for debts contracted by bis surviving partner, Samuel S. Hepwortli,. in continuing the business after the death of the deceased.

Motion to vacate an order directing that a short summons issue. John C. Milligan sued Amelia Fies upon a promissory note made by her to the order of The Lalance and Grosjean Mf’g Co., who transferred the note to the plaintiff Milligan. The pliantiff on the ground of his non-residence, obtained an order pursuant to § 3160 of the Code of Civil Procedure, directing that the defendant answer within two-days after the service of the summons upon him.

<p>Corporation name; and injunction against imitation.] An unincorporated association or firm cannot maintain an action to enjoin a; rival from imitating its name, if the name includes a designation, of it as a banking company, for that is a false representation that-it is incorporated.</p> <p>Trademarks and signs; arbitrary wordi] The word “International,” in the title “ International Banking Company,” is not an arbitrary designation such as can be protected from infringement by a rivaL</p>

<p>Association unincorporated; action to enjoin use of name.] An- actios lies on behalf of an unincorporated association (especially if it consists of seven or more members having joint property, and sues in the name of the president or treasurer under the statute*) to enjoin a part of its members from procuring the incorporation of & society under the name used by the association.</p> <p>* The provisions of the statute (Code Civ. Pro. § 1919), are as follows : “An action or special proceeding may be maintained by the president or treasurer of an unincorporated association, consisting of seven, or more persons, to recover any property, or upon any cause of action, for or upon which all the associates may maintain such an action okspecial proceeding, by reason of their interest or ownership therein., either jointly or in common.</p>

<p>Unjoining úse of name of voluntary association.] The dissatisfied members of a voluntary association cannot, by incorporating themselves, deprive the voluntary association of the right of using its own name; and a temporary injunction for such' a purpose will not be granted.</p>

Plaintiff brought this action to enjoin defendant from «using the name it had adopted. It appeared that the plaintiff company was incorporated in 1875, and has since been doing business under the corporate name of the “ United States Mercantile Reporting-Company,” in the making and publishing reports of the financial standing and credit of persons doing business in the cities and elsewhere of the United States. In that, complaint they allege that William G-.

<p>Corporations; consolidation; what powers survive.] Upon the consolidation of two corporations, under the general laws of New York, which provide in brief that all rights and liabilities of the separate corporations shall devolve upon the consolidated corporation, and that pending actions by or against the separate corporations shall not abate, but may be continued with or without substitution 5 and that in the case of any dissolved corporation the managers and directors shall, unless otherwise provided, be trustees of its assets-for creditors and stockholders,—the consolidation of separate corporations does not work an absolute cessation of their existence and powers; but such a corporation remaining after the consolidation equitably bound specifically to perforin the transfer of assets-to the new company agreed for in the terms of consolidation, a conveyance executed by the officers of such separate company after-consolidation, in pursuance of authority conferred before consolidation and in execution of the terms agreed on, is valid.</p> <p>Assignment of patent; by officers of corporation after its consolidation.]. Such a conveyance to effect an assignment of a patent satisfies the United States patent law which requires that every patent shall; be assignable by an instrument in writing.* The same principle-applies to the assignment of all interest in an invention before a-patent has been granted therefor.</p> <p>Corporation ; effect of dissolution.] By modern law the property of a corporation does not, on its dissolution, vest in the State ; but belongs to its stockholders and creditors.†</p> <p>* Every patent, or any interest therein, shall be assignable in law, by an instrument in writing ; and the patentee or his assigns or legal representatives may, in like manner, grant and convey an exclusive-right under his patent to the whole or any specified part of the United; States. An assignment, grant or conveyance shall be void as against, any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the patent office within three.months from the date thereof (U. S. R. S., § 4898).</p> <p>†See note at the end of this case.</p>

Demurrer to reply. Jose A. Del Valle brought this action against Jose F. Navarro and James Clyne alleging that the parties had entered into an agreement reciting that the Commercial Warehouse Company had been adjudged a bankrupt and a composition proposed at the rate of 50 per cent, and that the plaintiff, the party of the first part in the agreement, a creditor, was willing to accept the terms, but desirous of getting cash, and the parties of the second part were willing- ■…

<p>Pleading,—equitable defense in U. 8. Court.] The principle that an equitable defense is not available in an action in a court of the United States, on a cause of action of a legal nature, does not exclude such defenses, founded on the equities of suretyship, as courts of law have borrowed from courts of equity, in a case where available without injunction or other characteristically equitable procedure.</p> <p>The same.] Nor does it exclude a defense consisting of allegations of fact available at law, merely because the answer demands specific relief, such as surrender and cancellation.</p> <p>Bills, notes and cheeks; accommodation paper.] In an action by indorsee against maker, an answer that the note was accommodation paper made by defendant for. the payee’s accommodation, and indorsed by the payee to the plaintiff, under an agreement between all three that the paper so made and indorsed should be enforced solely against the indorser, is a legal defense, and it seems not inconsistent with the note, and sufficient if substantiated.</p> <p>The same, compromise with one debtor.] Mere notice to the bona fide holder of negotiable paper who took it for value before maturity, that it was made for the accommodation of the indorser, does not prevent him from compromising with the indorser, and after discharging him, recovering the residue of the accommodation maker.</p> <p>* Montejo v. Owen, 6 Abb. N~. C. 110.</p>

Motion to set aside verdict and for a new trial. The two promissory notes, on which this action was brought, were delivered by Lindau (the maker and payee thereof) to one Breck, with Jacobs as prior indorser thereon (for accommodation and without consideration), and by Breck directly passed to the plaintiff, in payment of an indebtedness for merchandise sold by plaintiff to Breck, and by him previously received.

Motion to vacate an assessment of- taxation. William Darrow and Charles A. Davison as trustees under the will of Henry Ivison, petitioned to vacate .an assessment taxed on certain trust property. The petition showed that one David.

The return of the sheriff to a writ of habeas corpus directed to him, showed that he held the relator by virtue of -an execution against his person. It was claimed that the relator was illegally detained because he had not been served with a copy of the execution, under Code Civ.

<p>Substituted service of summons to take case out of statute of limitations. ]■ Substituted service of summons is equivalent to service by publication for the purpose of sustaining delivery of the summons to* the sheriff before the statute of limitations has run as taking the-case out of the bar of the statute.*</p> <p>* See note at the end of this case.</p>

The action was brought in a X. Y. District court to' recover the contract price agreed to be paid by the defendants for a safe.

-Motion to vacate and set aside the judgment entered against the defendants and for leave to answer. This action, brought by Morris J. Drucker against Mary McCallum and Charles B. Richards, was commenced by the sei-vice of summons and complaint on the defendant, Mary McCallum, on February 14,1888.

These actions, four in all, were brought to recover $25,000 damages in each case, aggregating $100,000, for the publication in the “ Star ” newspaper of an article concerning the plaintiffs, alleged by them to be libelous. The four ■complaints were duly verified. The defendant answered in each case; the answers containing with other defenses, a •“ general denial ” of all the allegations of the several complaints. The answers were not verified.

I. Special Term, February, 1888. Motion for final judgment made by the plaintiff on the ground of the defendant’s failure to serve an amended answer to his amended complaint. The facts appear in the opinion.

Action by The Farmers’ Loan and Trust Company as .•administrator with the will annexed of William Kennelly, deceased, to enforce specific performance by Amos R. Eno, the defendant, of the latter’s contract to purchase a certain lot of land in the city of New York, entered into by him with the executors of plaintiff’s decedent in their lifetime. The action was defended on the ground that the title tendered was not marketable. The facts are fully stated in the opinion.

<p>the court passed upon the following points:</p> <p>1. Wills, interpretation; “ trustee” or executor.] The modern rule for the construction of wills that in interpreting a particular clause the court is to seek for and be governed by the intention of the testator as manifested by whatever parts of the whole will,-—is applicable to the question whether an executor is also a trustee, and, if so, whether a person substituted as “executor” by a codicil, takes also the powers of a trustee.</p> <p>2. The same, naming executors only, but creating trust in them.] The testators will in numerous clauses directed his executors, hereinafter named, to set apart various funds, the principal of which and the residuary estate, he bequeathed to them “in trust,” or “under the trusts hereinafter created,” and as to the residuum directed them to procure a charter for a charitable institute and appointed his executors trustees of such institute, and finally gave to “each of his said executors” a quarterly stipend “for their services as such executors and trustees,” and concluded by nominating and appointing three persons named “ executors of this my last will and testament, and sole trustees of the said ‘ The Samuel Wood Benevolent Institute,’ and of the trusts in the will contained. Held, that they were trustees as well as executors.</p> <p>3. Wills, modification by codicil.] By a codicil he declared the appointing clause revoked or modified so as to conform to my wish as hereinafter expressed, to wit, [naming four persons, only two of whom were named in the will] are hereby appointed the executors of the said last will and testament in the place and stead” of those named in the will. Held, that those newly made were made trustees as well as executors.</p>

Motion by plaintiff for an injunction restraining defendants board of direction from proceeding to try the plaintiff on charges which had been preferred against him in pursuance of the constitution and by-laws of the club.

<p>Arrest; omission to allege grounds in complaint^ Where the defendant was arrested, after the service of the summons and complaint, on the ground of a fraudulent disposition of his property, the complaint failing to allege the grounds of arrest, and no amended complaint was served—Held, that the order should be vacated, as it is necessary, since the amendment of 1886 to Code Civ. Pro.,, §§ 549,'550, to allege the facts in the complaint.</p>

John Glenn, as trustee of, and for the benefit of the creditors of the National Express and Transportation Company, brought this action against Robert A. Lancaster, David J. Garth and other defendants.

This was an action, brought by the attorney-general against the defendant, a corporation organized under L. 1883, c. 175, and authorized by law to make insurances, to procure a judgment dissolving the corporation and forfeiting its corporate rights and franchises, on the ground of insolvency. A motion was made by the Attorney-General for an injunction and the appointment of a receiver. The facts are sufficiently stated in the opinion.

<p>Appeal from a judgment of the special term dismissing the complaint upon the merits, rendered upon a trial by the court.</p> <p>The case below is reported in 19 Abb. N. C. 289, where the facts are more fully stated.</p>

Motions to set aside referee’s report, and to punish for ■contempt. The plaintiff, John Fenlon, as receiver in supplementary proceedings of the property of John Dempsey, commenced this action against John Dempsey, Jane Dempsey and the Union Square Printing Company to recover property held by the defendants and alleged to belong to the judgment ■debtor.

<p>Motion to discharge petitioner on a writ of habeas corpus.</p> <p>The facts of the case appear fully in the opinion.</p>

I do hereby finally order that all the proceedings in this matter be and the same hereby are dismissed, and the prisoner and relator, Louis Dorfmann, be and he hereby is remanded to the custody of the respondent herein. And it is further ordered that the district attorney of New York County have leave to file the record of conviction herein nunc pro tunc in the office of the county clerk of New York.

<p>Action for rent.'</p> <p>The facts appear in the opinion.</p>

Hebbard as plaintiff, granting him leave to serve an amended complaint, and opening judgments upon terms. This action was commenced in 1874 by William Evans against The United States Life Insurance Company to recover the amount due upon a life policy issued to Samuel W. Leddell upon the life of Charles A. Starr. Starr died in 1872, after which Leddell assigned his claim under the policy to the plaintiff.

I. May, 1887. Appeal from order denying ■ motion to vacate interlocutory judgment.

<p>Execution; necessity of, to support sheriff's deed.] In an action for specific performance, where plaintiff has to prove title under a sheriff’s deed, given upon an execution sale, he must show that the-execution is on file, or at least that it was actually issued.*</p> <p>* See Abb. Tr. Ev., 702.</p> <p>For the similar necessity of proving a decree in insolvency to sup_ port an assignment by the insolvent, see Rockwell v. McGovern, 69 N. Y. 294; aff’g 40 Super. Ct. (J. & S.) 118; Rockwell v. Brown, 54 N. Y. 210; rev’g 11 Abb. Pr. N. Y. 400.</p> <p>As to necessity of proving a foreign will to support a conveyance-made by the executor in pursuance of a decree of court requiring it see Bindley v. O’Reilly (N. J. 1888), 13 Central Rep. 309. Evidence; recitals in sheriff's deed.] The rule in Phillips v. Shiffer, 14 Abb. Pr. N. S. 101, that the recitals in a sheriff’s deed are not evidence of the issue of an execution—-followed.</p> <p>Evidence; presumption of an execution.] The provisions of 2 E. S. 870, § 44—that the sheriff’s certificate of sale shall be received as presumptive evidence of the facts therein contained— although such certificate- recites the issue of an execution, does not make it presumptive evidence that the sheriff proceeded under an execution duly issued; because 2 R. S. 370, § 42,* prescribing the contents of the certificate omits all reference to-the execution, t</p> <p>Same, j Nor will the issue of the execution be presumed from the fact that the sheriff, in order to make the sale, must have proceeded under an execution.</p> <p>Sheriff's deed ; when presumption created by Code Civ. Pro., § 1471, does not apply.] The amendment of 1886 (c. 637) to Code Civ. Pro., § 1471,—providing that after a sheriff’s deed shall have been recorded for twenty years in the county where the real estate is situated, it shall be presumptive evidence of the facts therein stated—Eeld, not to apply to deeds executed before September 1, 1877, in accordance with Code Civ. Pro., § 3347, which states that c. 13 of the Code, of which § 1471 is a part, shall have that effect.</p> <p>Statutes; construction.] The amendment of 1886 to § 1471, although passed subsequent to § 3347, does not abrogate the clause of limitation in § 3347, making c. 13 of the Code apply to executions and sales made after September!, 1877.</p> <p>Submission of case on agreed facts.</p> <p>* Ch. 6, of 2 R. S. of which §§ 42, 44 are part, was repealed by L. 1880, c. 245. Compare Code Civ. Pro. § 1471.</p> <p>†2 R. S. 370, § 42, was as follows:</p> <p>Upon the sale of real estate by virtue of any execution, the officer making the same shall make and subscribe duplicate certificates of such sale, containing:</p> <p>1. A particular description of the premises sold:</p> <p>2. The price bid for each distinct lot or parcel:</p> <p>3. The whole consideration money paid:</p> <p>4. The time when such sale will become absolute, and the purchaser will be entitled to a conveyance, pursuant to law.</p> <p>For the revision of this statute as now in force as to sales since about 1876, see N. Y. Code Civ. Pro. § 1438, etc.</p>

<p>1. Banking; liability of bank to receiver for moneys apportioned, to beneficiaries under a will.] When executors or other trustees have stated an account for distribution, among beneficiaries, of moneys in bank to the credit of the estate and apportioned the sum payable to each, title to such share must be deemed vested in each beneficiary in such sense that a receiver of the property of the beneficiary who gives the bank notice of his claim before the bank has paid or certified the executor’s check in favor of the beneficiary, can recover the amount from the bank, notwithstanding the subsequent payment by the bank of the executor’s check in favor of the beneficiary.* *</p> <p>•2. Same.] The check of the executor does not give the beneficiary or his receiver a right of action; but a trust fund, known to be such by the bank in which it is deposited, can be followed there by the cestius que trust, and if apportionment has been made by the executor or trustee, the share of the separate beneficiary my be collected by his receiver.</p> <p>3. Bemedy of bank.] The remedy of the bank on receiving notice of such a claim is to seek interpleader.</p> <p>* See in support of actions directly against the bank by the real •owner of a deposit in the name of another, Baker v. N. Y. National Exch. Bk.. 16 Abb. N. C. 458; Moore v. Hillabránd, Id. 477; Viets v. Union Nat. B’k, 101 N. Y. 563. See, also, Laclede Bank • e. Schuler, 120 IT. S. 511 (holding the bank not liable upon check •drawn on it, if an assignee for benefit of creditors of the depositor, gives notice of his claim before the presentation of the check). Compare Butler v. Duprat, 51 Super. Ct. (J. & S.) 77, holding a trust created by deposit, revocable.</p>

<p>Foreclosure; referee's lien for disbursements.] A referee to sell in foreclosure, is entitled to payment of his expenses incurred in carrying out the orders of the court—e. g., expenses incurred for advertising the sale—and neither the satisfaction of the mortgage or of the judgment can affect his rights.</p>

Action to construe a will. The facts appear in the opinion. Stewart & Sheldon, for the plaintiff.

The action was brought by Alfred Eoe and William Cruikshank, as executors and trustees under the will of Elizabeth F. Floyd, for a judicial construction of her will. The testatrix left her surviving, as her only heir at law, her daughter, Sarah A. Yingut, who died after the trial of the action and before the rendering of the decision, and who left her surviving her husband, George T. Yingut and five children, her only heirs at law.

<p>1. Voluntary association; restoration to membership.] Wher.e a political organization, made up of several ward and town associations, disbands one of the town associations in accordance with its by-laws, and orders a new enrollment of the voters,- under which a new election is had, and one of the delegates elected at such new election is also one of the delegates from the disbanded association and is objectionable, and in hostility to the general body, such delegate may be refused admission to membership by a majority vote of the general body, although its by-laws require a two-thirds vote upon the question of refusing admission to membership of one claiming to be elected.</p> <p>* See also Gebhard v. New York Club, p. 248 of this vol. and Baum v. N. Y. Cotton Exch., p. 253; also see note in 15 Abb. N. C. 44; and reversal of the case of Loubat v. Le Boy, there reported, in 17 Id. 112.</p> <p>As to affiliated associations, see Davis v. Mayo, 10 Virginia L. J. 559; District Grand Lodge No. 5, Independent Order of B’nai B’rith v. Jedidjah Lodge No. 7, 65 lid. 236; s. c., 4 Eastern Rep. 657; Oliver d. Hopkins 144 Mass. 175; s. c., 10 Northeastern Rep. 776.</p> <p>3. Pleading; demurrer,'j In an action for such restoration, a demurrer to the complaint will be sustained, as it is a question to be determined between the town association and the general association, and not for the courts.</p>

Morris Reubens and Bernhard Reubens sued the Ludgate Hill Steamship Company (Limited), a common carrier of goods, to recover damages for negligence in transporting fur in one of its vessels. The complaint after alleging, 1. that defendant was a. foreign corporation: 2. the copartnership of the plaintiffs,, then proceeded as follows : Third.

<p>1. Discovery; by assignee of retired, partnei‘.] The plaintiffs assignor and defendant being copartners, made an agreement of dissolution-which provided that commissions to be derived from certain sales of goods under certain continuing contracts should be equally-divided. The plaintiff nowsued for an alleged violation of the agreement; and moved for a discovery by defendant of the sales and commissions. Meld, that it was not a sufficient reason for denying the motion that a party to one of the contracts had assumed to terminate it, but without right; there being no denial that sales had continued nor any allegation that the right to commissions had been forfeited.</p> <p>' S. The same; information within Tcnowledge of agent, when not a defense.] It is not a ground for denying discovery that the defendant, a married woman, conducts her business thought her husband as her agent, and that the information sought is not alone in her power to furnish. The presumption of law is that an agent does his duty and keeps his principal fully informed.</p> <p>8. The same ; defense of other means of knowledge.] The answer to a motion for discovery that the information sought is in the possession of strangers to the litigation,—in this case, the parties with whom the contracts were entered into upon which the commissions claimed to he due were derived,-—Held, untenable.</p> <p>4. The same; favored by'the courts.] The limitation enacted by Code Civ. Pro. § 1914—which provides that an action cannot be maintained to obtain discovery in the prosecution or defense of another action—does not affect the power or duty of the court to enforce such discovery as may be required to determine the merits of the action in which the discovery is sought ; and the exercise of this power is favored by the courts particularly where confidential relations exist.*</p> <p>5. The same; manner of making; discretion of court.] The manner of making discovery is matter of detail within the discretion of the court.</p>