Volume 3 — Silvernail Supreme Court Reports

<p>1. Equitable set-off. Pleading.—Averments in complaint, in action to compel equitable set-off, by way of description of the claim sought to he set-off and its origin and character, are necessary for the purpose of showing that it is the subject of equitable set-off pertinent to one cause of action. A demurrer, on ground of improper joinder of causes of action, is not well taken.</p> <p>2. Same.—The fact that the assignor is insolvent, that the demand will be lost unless it is allowed in reduction, and that it was due when the assignment, was made, is sufficient to entitle to equitable setoff.</p> <p>See note at end of case.</p> <p>S. Former adjudication. When not bar.—A judgment in action to adjust partnership accounts, is no bar to an action brought to enforce an individual claim.</p>

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

<p>1. Collateral inheritance. Interest.—The charge for interest on tax under chap. 483 of 1885, only begins from the expiration of the year following-decedent's death.</p> <p>See note at end of case.</p> <p>2. Same.—Exemption. The burden rests upon the party, claiming exemption, to show that the settlement of the estate has been delayed by necessary ligitation or other unavoidable cause, and that he is not in a. condition to settle the estate or pay the tax,</p>

<p>1. Evidence. Declarations.—The declarations of a grantor bind his grantee, only where he, at the time of making them, has the title to the property affected by them. Those made, either before or after, that time, do not have that effect.</p> <p>2. Same.—Where, after striking out the declarations of a grantor, which merely tend to explain the character of, but not to destroy, his title, made prior to the time he acquired such title, the remaining evidence of other statements made by him, while holding the property, to the effect that another party than himself was then the beneficial owner, if not so conclusive as to warrant a withdrawal of the issues from the jury, is to be considered, and given its due weight, by them in determining what was the real nature of the grantor’s ownership, as against the evidence furnished by the record title, and the other proof on behalf of the grantee.</p> <p>3. Same. Attorney.—An attorney is prohibited by section 838 of the code from disclosing any communications, made to him by his client in the course of his professional employment.</p> <p>See note at end of case.</p>

<p>1. Partnership. Single enterprise.—A different rule is to be applied to the case of partners for a single enterprise, in considering their subsequent relations and rights as to each other and to third parties, from that which would apply in case a general partnership had been established. See note at end of case.</p> <p>2. Same.—In such case, they can not bind each other, after the particular adventure ends, by any subsequent action.</p> <p>3. Same'. Liability.—Where a creditor directed such a firm to deposit, and it'did deposit, to his order, with a banker, moneys received for goods sold for him on commission, and afterwards on direction of one of the former members, the banker repaid the money to the purchaser, the other member is not liable to the creditor for the act of his former partner.</p> <p>4 Payment. Presumption of.—Where twenty years have elapsed since the cause of action accrued, there arises, in the absence of some positive act of unequivocal recognition, like part payment or a written admission, or at least a clear and well-defined parol promissory admission intelligently made, an absolute presumption of payment, entirely independent of the statute of limitations and notwithstanding the non-residence of the alleged debtor.</p> <p>5. Evidence, Hearsay.—A letter written by a third party to plaintiff is a mere declaration and not binding upon defendants ; nor will the examination of the plaintiff by the defendants in reference to it, make it admissible against them.</p>

<p>Appeal by an executor from a decree of the surrogate’s court settling bis accounts.</p>

Appeals by the executors, and trustees from an order of the surrogate, denying a motion for an order that the entry of the decree in this proceeding upon the accounting and all other proceedings should be stayed, until after the entry of judgment in an action brought by the trustees against the executors and others in this court, and referred to a referee before whom the same was pending, and from said decree.

<p>1 Executors. Expenditures.—An executor, to entitle himself to an allowance for expenditures made in the course of a litigation, instituted in another state against his co-executors for waste, must at least show reasonable grounds for such proceeding.</p> <p>2. Same. Judgment.—A judgment recovered in an action in the supreme court appropriating certain proceeds of the estate to the purposes of the trusts created by the will, is conclusive, not only upon the parties, but upon the surrogate.</p> <p>3. Same. Charge.—An executor will be charged on accounting with money collected which should be, but has not been, appropriated to a trust fund.</p>

<p>Abatement and revival.—Where, in proceedings to vacate an assessment, the petitioner died, and no step was taken therein other than the service of the petition,' a delay of nearly fourteen years supplies a substantial ground for the denial of a motion to revive the proceeding.</p>

<p>1. Abatement and revival.—A delay of nearly ten years, where in proceedings to vacate an assessment the petitioner, died and no step was taken other than the service of the petition, supplies a substantial ground of the denial for the motion to revive the proceeding.</p> <p>2. Same.—The proceeding entirely abated by the death of the testator.</p>

<p>Appeal from the order of the Erie special term, denying the relator’s motion to compel the respondents to rescind their action removing him as crier of the superior court of Buffalo, and to reinstate him therein.</p>

<p>Insolvent corporations. Deferences.—Where persons enter into an arrangement with a corporation, whereby it furnishes them room, power, machinery and stock, and they furnish the labor employed in the manufacture of parts of machinery and implements, and hire and pay the laborers who do most of the work, subject to general rules in force in its factory, they are not employees, operatives or laborers of such corporation, and the amounts due them are not wages, within the meaning of chap. 376, laws of 1885, giving a preference, in certain cases of insolvency, to such wages.</p> <p>See note at end of case.</p>

<p>Evidence. Memoranda—To prove the number of days during which detectives performed services, by introduction of books, in an action for their services, the performance of the services charged therein must have been shown to have been rendered and reported accurately before making the charges, and to have been correctly entered subsequently in such books. The law will not permit the entries in the books to be read in evidence, upon less proof as to their correctness.</p> <p>See note at end of case.</p>

<p>1. Cemeteries. Bight of burial.—The exclusive permission to bury in a cemetery lot is sufficient to confer an exclusive right to use the lot for burial purposes, and no formal deed is necessary.</p> <p>2. Ejectment adverse possession.—Twenty years possession of a cemetery lot under a claim of title will of itself defeat an action of ejectment.</p>

<p>1. Mechanic's lien. Foreclosure.—Where it appears, in an action to foreclose a mechanic’s lien, that the plaintiff’s lien has been cut off by the foreclosure of a prior lien, the court may give a common law judgment, if the facts warrant it.</p> <p>2. Appeal. Deceptions.—Exceptions to the findings as made are unavailable, where it appears that they are sustained by some of the evidence in the case.</p> <p>3. Same. Intermediate order.—It is incumbent upon a party, who appeals ' from a judgment and desires to review any intermediate order not theretofore appealed from, to state in his notice of appeal that he intends to bring up for review such order, and distinctly specify it.</p>