Volume 26 — Abbott's New Cases

Hearing of plaintiff’s exceptions at General Term. Catherine A. Hogan brought this action against Caroline Wolf, for damages for' enticement of the plaintiff’s husband. Upon defendant’s motion, the complaint was dismissed on the pleadings, and the plaintiff’s exception thereto was ordered to be heard in the first instance at the general term. Further material facts appear in the opinion.

Motion on behalf of the defendant, Wellesley W„ Gage, to vacate the summons in this action, upon the ground that no leave to sue had been obtained.

Upon the petition of George W. McLean as receiver of taxes for the city and county of New York, under §§ 857, 861 of N. Y. Consolidation Act (L. 1882, c. 410), an order was made requiring the defendant, John H. Jephson, to show cause why he should not be committed to the jail in said city and county until he •should have paid the amount of certain personal taxes imposed upon him.

Motion by plaintiffs to vacate interlocutory judg7 ment for irregularity. The nature of the action is stated in the report of the proceedings for the appointment of receivers (25 .Abb. V, C. 438).

Trial by the court without a jury. This action was brought by Sarah Frances Blake against Alfred C. Barnes and others, individually and as executors and trustees under the will of Alfred S. Barnes deceased, and Richard S. Barnes and others, persons interested as legatees and devisees under the will of said decedent, for the construction of certain provisions of his will, and for an accounting by the defendants composing the firm of A. S. Barnes & Co., and the executors, of…

<p>1. Executor accounting without vouchersl\ The lack of vouchers is not necessarily an insuperable obstacle to passing the accounts of an executor. The surrogate, by reason of the nature of his office, may, by evidence morally admissible, ascertain where truth and justice lies, and decree accordingly.</p> <p>2. The same ; admission of counsel.] Where the books of a deceased executrix are without objection received in evidence in support of the account of her successors, and contestants’ counsel orally admits in open court the correctness of the account, justice demands that the surrogate allow such account, although no vouchers are produced.</p> <p>3. Books ■ of executrix?] The admission of the books of a deceased executrix in support of the account of her successors, is in effect allowing the deceased executrix to testify in her own behalf.</p> <p>4. Admission of contestants' counsel?] It seems that an oral admission by contestants ’ counsel in open court of the correctness of an executor’s account is a complete waiver of the objection that proper vouchers or evidence have not been produced.</p> <p>5. Rents.] Where the provisions of a will operate as an equitable conversion of the real estate, an executor is accountable for the rents.</p>

<p>1. Surrogate's jurisdiction^] Surrogate’s courts have sole and exclusive jurisdiction over the subject of granting letters testamentary, and of administration, and as a part of that jurisdiction have power to determine, upon sufficient evidence, the facts upon which their actionmust rest. Bolton v. Jacks, 6 Robt. 166, disapproved.</p> <p>2. The same; determination as to inhabitancy conclusive.] The judicial determination by the surrogate to whom an application for letters is made, as to the inhabitancy of the deceased is conclusive, on the question of his jurisdiction founded thereon except when questioned in proceedings to review; and cannot be collaterally attacked.</p>

Action by stockholder against trustees of a corporation for an accounting, receiver, and injunction. It ■appeared from defendant’s affidavits in opposition to an order to show cause why the injunction granted by the order should not be continued, that defendant had not been served in the city of New York.

<p>1. Contract for agency.] One who relying upon a contract giving-him the agency for the sale of a proprietary article, gives up his previous profitable employment, and devotes himself to the agency thus given him, may, in case of failure on the part of the employer to perform stipulations necessary to enable him to succeed therein, recover as part of his damages the profits of his former empl oyment lost by withdrawing from it.*</p> <p>2. Damages ; proximate and remote.] By a contract plaintiff agreed with the manufacturer to conduct the business of introducing and selling certain gas burners; the manufacturer wholly failed to perform his part of the contract as to supplying the other with the burners. In an action for this breach, it appeared that plaintiff had incurred necessary expenses for the purpose of introducing the burner; that his whole time was necessarily devoted to the business ; and in consequence of the contract, and in good faith relying upon defendant’s fulfilling its conditions, he had abandoned his profession as a physician from which he had averaged a large income.—Held, that plaintiff was not only entitled to recover his expenses, but also the amount which he might have earned as a physician during the time occupied in the performance of his part of the contract, less a small sum which he had earned as a physician during that period.</p> <p>3. The same ; uncertainl\ In an action for breach of contract, plaintiff is entitled to recover all such damages as are the certain result of the breach even though such damage be uncertain in amount.</p> <p>4. Contract not abrogated by a subsequent contracts, Where a subsequent contract between the same parties provided that, “it was to supersede, replace and interpret any and all provisions contained in the original agreement aforesaid, so far as they relate to any of said provisions, and this agreement is to be and remain in full ■force and effect as if this had been the original agreement, so far as it relates to matters referred to herein ; ” and it also appeared that the subsequent agreement altered the original contract only in some of the particulars,—held, although the word supersede was used, the original contract was not abrogated or nullified.</p>

Simon Rothschild brought this action against the Rio Grande Western Railway Company, a foreign corporation created by thp laws of Colorado and Utah to recover upon interest coupons attached to mortgage bonds originally issued b}* another corporation. The plaintiff claimed that the defendant was liable upon these coupons by reason.of a consolidation of the corporation which issued the mortgage bonds with another corporation.

<p>Motion for leave to amend a reply.</p> <p>Action by James H. Brady against Catharine Nally for services. The answer contained several counterclaims. After the cause had been submitted to the referee and he had made his findings, plaintiff moved to amend his reply by setting up a counter-claim to one of the counter-claims in the answer.</p>

The surrogate in his opinion placed his judgment upon the fact that the paper offered in probate was not the free, voluntary, and unrestrained act of deceased.

Appeal to the Court of Appeals from a judgment of the General Term reversing a judgment of the Special Term. ■ The action was brought by the Attorney General in behalf of the people of the State against the Broadway Railroad Company of Brooklyn to annul the defendants’ charter, or to have the additional privileges and franchises granted to it by the laws of i860, chapter 461, vacated and annulled.

Appeal by defendants to the General Term from a judgment of the Special Term. The action was brought by Joseph Libman and ■others, against The Manhattan Railway Company and The Metropolitan Elevated Railway Company to enjoin the continuance and operation of the defendant’s elevated railroad in front of premises Nos. 191, 193 South Fifth Avenue, in the city of New York, and to recover damages therefor.

The action was brought by Edward P. Yale and others, against Henry C. Dart and others, acceptors o£ a draft drawn by Carlos A. Smith. The defence was that the acceptance was without consideration, and made solely for the plaintiff’s accommodation.