Volume 3 — New York Miscellaneous Reports

<p>Appeal from a judgment in favor of plaintiff, entered on the verdict of a jury, and from an order denying defendants’ motion for a new trial. The opinion states the case.</p>

Appeal by plaintiffs from a judgment entered upon a verdict, and from an order denying plaintiffs’ motion for a new trial.

<p>A railroad employee is not bound to look every time that a window is raised by a passenger, to see that it is put to the proper height. A passenger who places his hand under an open window must look and see that it is caught, and in the event of the window falling and injuring him, the company is not negligent unless the catch was defective.</p>

<p>On motion for a new trial on the ground of surprise on account of the absence of two witnesses at the trial, it appeared that the moving party knew of their absence while the trial was going on, and took no steps to compel their attendance, and made no request to be permitted to withdraw a j uror on that account. üfeM, that a denial of the motion was proper.</p>

Appeal by defendant from a judgment entered on a verdict of a jury, and also from an order denying a motion to set aside the verdict and for a new trial upon exceptions, and because the verdict was excessive and contrary to the evidence and law.

<p>Appeal from a judgment in favor of plaintiff, entered upon the trial before a judge without a jury,</p>

<p>Appeal from a judgment entered on a motion made at trial to dismiss the complaint upon the ground that it did not contain a statement of facts sufficient to constitute a cause of action.</p>

<p>Appeal from, a judgment in favor of defendant in an action of replevin. The opinion states the case.</p>

<p>Appeal from a judgment in favor of plaintiff. The opinion states the case.</p>

The plaintiffs as individual members, and as a local board of health of the town of Islip, bring this action purely for injunctive relief, and they pray “ that the defendants * * * be enjoined from bringing to the Surf Hotel * * * any person, baggage, clothing or any other thing the subject of quarantine brought from any vessel or quarantine station or elsewhere, or any person, matter or thing infected or supposed to be likely to be infected with cholera, or from using said…

Appeal by defendant from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The opinion states the case.

<p>Appeal from an interlocutory judgment entered in an action for partition. The opinion states the case.</p>

<p>A contractor can file a valid mechanic’s lien for the whole contract price before all the work is done, or all the materials furnished, provided the balance of the contract is thereafter fully completed according to the terms thereof.</p> <p>Plaintiffs having recovered judgment against the owner on a claim for which a mechanic’s lien had been filed, and being unable to collect-the same, brought action against the sureties on the bond given to discharge the lien and recovered judgment therein. Held, that plaintiff was regular in first suing and recovering judgment against the owner.</p> <p>Whether the bondsmen could have been made parties in that action, and, whether complaint can be made for the first time on appeal, that the action was not brought against the sureties within a year from the date of filing the lien, is questionable.</p>

Appeal by plaintiff from a judgment in favor of defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The opinion states the case.

<p>Action for an accounting. The opinion states the facts.</p>

<p>Appeal from a judgment entered upon the verdict of a jury by direction of the court, and from an order denving a motion for a new trial. The opinion states the case.</p>

As appears by the case on appeal, this action was brought for work, labor and services and materials furnished, amounting to the sum of one hundred and twenty-four and eighty-one-hundredths dollars ($124.80), with interest from May 19, 1891. The answer was not served until July 23, 1891, and was a general denial.

<p>Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial. The opinion states the case.</p>

<p>Appeal from a judgment entered on verdict in favor of plaintiff.</p>

<p>Appeal from judgment entered on verdict in favor of plaintiff.</p>

<p>Where a defendant offers no testimony as to his actual damage under an answer setting up a counterclaim for unliquidated damages, a verdict for plaintiff is properly directed.</p>

<p>In an action by the plaintiff bank to recover the amount of two promissory notes made by defendant, the answer admitted all the allegations of the complaint and counterclaimed a large balance to defendant’s credit in the bank. Plaintiff replied and denied the balance as alleged, but admitted that there was on deposit to defendant’s credit a given amount. Held, that defendant had the affirmative and was confined to proof of his counterclaim. If he desired to present any other counterclaim or defense it was his duty to move an amendment of his answer; not having done so, he took the consequences. The amount admitted by the reply should be allowed to defendant.</p>

<p>Appeal from a judgment entered upon the dismissal of the complaint at trial term. The opinion states the case.</p>

<p>Appeal from judgment entered on dismissal of the complaint directed by the trial judge.</p>

<p>Plaintiff sued for work claimed to have been performed under a certain written contract; defendant denied this and claimed that it was done under a written contract, which he ofEered in evidence, but it was excluded and plaintiff had a verdict. Held, error; both instruments should have been submitted to the jury and it was for them to determine which constituted the contract between the parties.</p>

Henry H. Isham, trustee of the Trumbull estate of Hew Jersey, having $25,000 belonging to the trust uninvested, gave a check for this amount to Augustus T. Post, who was a banker a,nd dealer in investment securities, to loan for him. The check was signed “ Henry H. Isham, trustee.” Upon receipt of the check Hr. Post loaned the $25,000 to Hills, Robeson & Smith, who entered the loan upon their books as made to Post.

<p>One H. bequeathed to his executors a sum of money in trust for the purpose of dividing the same into as many parts as there should be persons living of a certain class at the time of his death. Each of these parts was to be kept invested in certain securities named in the will, and the net income arising therefrom, or so much thereof as might be necessary for that purpose, was to be applied to the support, etc., of the cestui que trust during minority, and the balance to be accumulated and paid to said cestui que trust on attaining the age of twenty-one years, after which time they were to pay and apply the whole of the net interest and income arising from the part or share set apart for the benefit of such cestui que trust to his use during his or her natural life. The remainders in such parts were absolutely bequeathed upon the deaths of the cestuis que trust respectively. On accounting it appeared that the trustees had set up a “sinking fund,” which was established to make good a deficiency in the principal of the investments held for each of the cestui que trust arising from the fact that the said principal had oeen invested in securities purchased at a premium, and which premium had been gradually diminishing by reason of the approaching maturity of said securities. On objection thereto, held, that the intention of the testator was to preserve the corpus of the trust fund to the amount originally set apart, and that the trustees were authorized to add to the principal of each share sufficient of its accumulated income to restore it to that amount.</p>

This action was brought to recover the earnest money paid upon a contract to convey land on Ninetieth street, in the city of New York, upon the ground that the vendor was unable to give good title. William Rhinelander died September 9, 1825.

Action brought by the executors of George R. Mackenzie, deceased, for a construction of his last will and testament. The opinion states the facts.

<p>Motion for an injunction pendente lite.</p>

<p>Application by a member of a local branch of the “ Order of the Iron Hall,” for an order directing distribution of the reserve fund of his branch to the members thereof who had paid the same.</p>

<p>Application to be relieved from the forfeiture of a recognizance.</p>

<p>The provision in the charter of the Equity Gas Light Co., etc., of Brooklyn (Laws 1874, chap. 144), that “its corporate power shall cease,” meant that if gas was not furnished at two dollars per thousand feet in 1877, as agreed by the charter, the company should pass out of existence. The company did not commence business for over ten years. Held, on demurrer, that a complaint which alleged inter alia, that said company had no right or franchise to lay gas pipes in said city, for the reason that its corporate powers had ceased, stated a cause of action under subdivision 3 of section 1948 of the Code of Civil Procedure,</p>

<p>In an action to recover damages to plaintiff’s leasehold interest in property abutting a certain street in the city of New York, because of interference with her easements therein by the construction and operation of defendants’ elevated railway, it appeared that the lease in question expired February 1, 1890. Held, that the granting of an injunction which would be operative after that date in the event of defendants’ refusal to acquire plaintiff’s easements, was error.</p> <p>A witness was asked, “ How much rent more, in your opinion, was it worth (meaning plaintiff’s premises) on account of the road being there?” This was excluded as immaterial. Held, that while the question was objectionable on grounds not taken on the trial, it was error to exclude it as immaterial, as evidence of benefits is always material and admissible.</p>

<p>Appeal from decision of trial court, dismissing complaint; plaintiff’s exceptions ordered to be heard in the first instance at the General Term.</p>

Plaintiff in March, 1891, filed a mechanic’s lien against premises, described therein ; in April, 1891, defendants Hauifi and Midler, as principals, and Erslev and Updike, as sureties, gave a bond to discharge the same. In an action afterwards, brought to enforce said lien, judgment was rendered for plaintiff, and on defendants’ failure to pay the same this action was brought to recover on the bond.

Ik the matter of the application of John Collins, as executor, etc., of the last will and testament of the plaintiff.

<p>Appeal from judgment entered on verdict of a jury, and from an order denying defendant’s motion for a new trial.</p>

<p>Two days after the expiration of defendant’s time to amend as a matter of course, his application for leave to serve a proposed amended answer, setting up a valid counterclaim, was denied. Held, error; that as the amendment sought to he interposed was not an unconscionable defense, the motion should have been granted.</p>

Appeals by plaintiff from a judgment entered on verdict of jury returned in favor of defendant and from order deny? ing motion for a new trial on newly-discovered evidence.

<p>Appeal by plaintiff from a judgment in favor of defendant entered by direction of the court.</p>

This is an appeal from a judgment dismissing a complaint of the plaintiff, and in favor of the defendant, and against the plaintiff for the sum of sixty-nine dollars and sixty-two cents costs. The facts sufficiently appear in the opinion.

<p>A vendee paid §500 down upon the execution of a contract for the sale of real estate, which provided that, “the vendor shall give, and the vendee shall accept, a title such as the Title Guarantee and Trust Company will approve.” Upon examination, the company declined to approve of the title. In an action to recover the §500 and the expense of examining the title, it appeared that the vendor did not tender to the vendee a deed properly executed and acknowledged, and that the vendee did not tender to the vendor an installment of the purchase price to be paid upon the delivery of the deed. The case was tried and disposed of upon the theory that in order to recover, it was only necessary for plaintiff to prove that the title company did not and would not approve the title, and the court virtually directed the jury to find for the plaintiff, which they did. Held, error; that in order to put the vendor in default, plaintiff should have made a legal tender of the amount due upon a delivery of the deed and demanded such a deed as the contract called for.</p> <p>If defendant’s title to the property was good and marketable, that was all plaintiff was entitled to and all that defendant was bound to give, and the title company was legally bound to be satisfied with it, and an arbitrary disapproval without showing or specifying any reason or defect impairing the marketableness of defendant’s title would not avail.</p> <p>The trial court excluded evidence as to what the real objections were, if any, that the company had, for not approving the title. Held, error; as upon the reception of this evidence, defendant might have shown that there was no force or merit in the objections and that the refusal to approve was arbitrary and unwarranted by the facts.</p>

<p>Plaintiff sued defendant, who agreed to pay all the lawful debts of the firm of P. & Son, and alleged that said firm received from plaintiff seventy dollars to the use of plaintiff. There was no allegation of fraud or mistake. He proved a sale of bonds to him on the installment plan. Held, that he was properly nonsuited.</p>

<p>F. & Co. made a note, payable to order of plaintiffs, which was indorsed by defendant before delivery to plaintiffs, for the purpose of paying for building material furnished to her. Held, that on the face of the paper defendant was a second indorser and not liable thereon to plaintiffs, the payees.</p> <p>Evidence that defendant indorsed the note to give the payees credit with the bank, does not overcome the legal presumption that she was simply a second indorser.</p>

<p>Appeal by defendant from judgment entered upon verdict returned against him by a jury, and from an order refusing new trial.</p>

<p>Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

This was a proceeding under the charter of Rochester (Chap. 190, Laws of 1892) to condemn lands for the extension of Ethel street. The commissioners of appraisal reported that the lands of Avenel were subject to an easement of passage for a street for the benefit of owners of lots abutting on the proposed extension, and awarded him only nominal damages. From this award Avenel appeals.

<p>A verdict should not be disturbed unless it shows passion, prejudice, mistake, corruption, or shocks the judgment of man, or is without evidence or so decidedly against the evidence as to show partiality or gross ignorance.</p>

<p>In consideration of the transfer to it of certain real estate, defendant agreed with one W. “to pay and discharge any and all charges and expenses for necessary attendance in case of the illness of said W.” In an action by plaintiff to recover the value of services rendered W. in her illness, held, that the agreement in question inured to the benefit of plaintiff, and in the absence of evidence that defendant furnished or offered to furnish such attendance to W. as plaintiff rendered, she had the right to engage plaintiff for that purpose and defendant became liable therefor.</p>

<p>The taking by a creditor of a debtor’s note does not extinguish the original debt; it is a written promise to pay, and only extends the time of payment of the debt itself until the note is due. If it is not then paid, the creditor may sue upon the original demand and bring the note into court to be given up on the trial.</p>

<p>Appeal from order allowing interpleader, and from order refusing to strike out affidavit filed, after argument of motion.</p>

<p>Appeal from an order setting aside an execution,</p>

An order appointing a receiver in supplementary proceedings made without notice to the judgment debtor, will be set aside where it does not appear that the defendant could not be found within the state.

<p>The fine for disobedience of an order in supplementary proceedings cannot exceed $250 and costs, except the party injured thereby sustains actual loss, in which case there must be legal proof of actual damage.</p>

<p>Appeal by defendant from order adjudging him guilty of contempt of an order made in supplementary proceedings.</p>

<p>Plaintiff, the driver of a beer wagon whose weight and the weight of the horses rendered speed impossible, after looking up and down the street and seeing no cars in sight, crossed one of defendant’s tracks in safety, and had nearly crossed the last, when the rear wheels were struck by a car, and he was thrown out and injured. Held, that it appearing that plaintiff’s horses were actually on the last track when defendant’s car was sixty to seventy feet away, the question whether or not plaintiff exercised his right to cross the track in a careful or careless manner was for the jury, and a verdict in plaintiff’s favor would not be disturbed. The finding of the jury that defendant was negligent was justified by the evidence,</p>

<p>A complaint alleging confederation to ruin plaintiff’s business, and partial success in so doing, because of refusal to unite with defendants in illegal trade combination, held, on demurrer, sufficient to constitute a cause of action.</p>

<p>In an action to recover for personal injuries resulting from a fall upon an icy sidewalk in front of defendants’ brewery, the testimony tended to show that plaintiff fell at a place where there was a driveway and that the remaining portion of the sidewalk was free from ice. Held, that a dismissal of the complaint was proper.</p> <p>Moore v. Gadsden, 93 N. Y. 12, followed.</p>

<p>In an action to have a deed declared a mortgage, the trial court upon conflicting evidence found against plaintiff. Held, that its conclusion would not be disturbed.</p> <p>A deed will be declared a mortgage only upon satisfactory evidence.</p>

<p>In a husband’s action for divorce, which involves the validity of at least three marriages and the construction of the laws of at least four states, a counsel fee to the wife of $750 is proper in law and amount.</p>

<p>Action to rescind a contract of sale on the ground of fraud,</p>

<p>In an action to restrain defendant from negotiating a promissory note made by plaintiffs husband and indorsed by her, and for its cancellation on the ground that her indorsement was procured by the false representation of defendant aided and abetted by her husband, the trial court found in defendant’s favor on conflicting testimony. On appeal from the judgment on the ground that the facts found were against the weight of evidence, held, that the decision of the trial court was right.</p>

<p>In an action to recover for the value of work, labor and services rendered and materials furnished in the construction of a centerboard for defendant’s yacht, defendant counterclaimed for injuries to the boat while in plaintiff’s possession for care and hire. Evidence on defendant’s behalf to show that the injuries were not the result of wear and tear was rejected. Seld, error.</p> <p>The evidence showed that the boat was in apparently good condition when plaintiff received it. Seld, that plaintiff’s motion to dismiss the counterclaim should have been denied.</p>

<p>Appeal from judgment in favor of plaintiff, entered upon the verdict of a jury, and from order denying motion upon the minutes for a new trial.</p>

<p>Appeal from judgment of the General Term of the City Court, affirming judgment on a verdict directed by the court, and an order denying a new trial.</p> <p>Action on a note. The opinion states the case.</p>

<p>Appeal from judgment of a District Court in an action for broker’s commission tried by the court.</p>

The action was to restrain the operation and maintenance of a branch of the elevated railroad running in front of plaintiff’s premises, No. 310 East Thirty-fourth street, between First and Second avenues in the city of New York, and for damages. The judgment granted the relief prayed for, unless the defendant within ninety days paid plaintiff $2,500 assessed as damages to the fee value of the property caused by the railroad.

Action for an accounting for the sales of merchandise consigned by plaintiff to defendants. Appeal from a final judgment for plaintiff on the referee’s report.

<p>Appeal from judgment directed in favor of plaintiff by trial judge at equity term.</p>

Ceetioeaei to review tlie judgment of the board of park commissioners of the park department of the city of New York, dismissing the relator from the police force in said department.

<p>Appeal by plaintiff from order opening default on condition of payment of costs by plaintiff.</p>

Appeal by defendant from judgment entered upon verdict of jury, and from an order denying defendant’s motion for a new trial.

<p>Appeal from order denying defendants’ motion for inspection of certain letters, written to plaintiff, and in her possession.</p>

<p>Appeal from judgment entered on verdict in favor of plaintiff.</p>

<p>Appeal by plaintiffs from judgment entered on verdict in favor of defendant.</p>

<p>Appeal from part of order allowing defendant to serve an amended answer.</p>

<p>Appeal from judgment entered on verdict in favor of defendant.</p>