Volume 30 — Abbott's New Cases

Appeal by defendants from the judgments in two actions, tried together, entered against them upon verdicts •directed by the court, and from orders denying motions for new trials. The actions were brought by Thomas D. Hurst against the Trow’s Printing and Bookbinding Company and Edward Lange, as indorsers of certain promissory notes made by John W. Lovell. The defendant’s answers set up the defense that the contract under which the notes had'been given had been rescinded.

'Motion by the city of Brooklyn to confirm the report of commissioners of appraisal in proceedings to condemn the property and franchises of the Long Island Water Supply Company under the provisions of chapter 481 of the Laws of 1892.

Trial by court without a jury. Action by Rebecca Isear against Maurice J. Burstein to compel the removal of a wall encroaching on plaintiff’s premises, or to recover damages therefor.

The action was brought by Clara J. Butler, against the Manhattan Railway Company, for a miscarriage and other personal injuries caused by the slamming of an iron gate •against her, when she was about to enter defendant’s train. At the trial, the plaintiff was called as a witness in her •own behalf and testified as to the miscarriage and her healthy condition in the summer of 1889, at the time of the accident.

Trial by court without a jury. Action by Leslie M. Saunders and Alexander Saunders ■against the New York Central and Hudson River Railroad Company to restrain defendant from maintaining and operating its railroad upon filled-in land alleged to be owned by plaintiff, situated at Yonkers, N. Y., between the .railroad embankment of defendant and the original high-water mark of the easterly shore of the Hudson River. The further facts are fully stated in the opinion.

<p>Motion for new trial made by defendants on the minutes after verdict rendered in favor of plaintiff.</p> <p>Action of ejectment brought by John Hennessey against Bertha Volkening and others.</p> <p>The facts are fully stated in the opinion.</p>

Trial before a referee. The action was brought by James J. McComb as a creditor of the Madrid Apartment Association, a corpora, tion formed under the L. 1871, c. 535, against Robert L. Belknap, a trustee of such corporation, to charge him with a personal liability for the debt of the corporation, because of an omission by his co-trustees to file an annual report within the time required.

<p>Amendment; terms of allowing.] Although the payment of plaintiff's costs and disbursements at the trial and General Term where he has been successful, together with the costs of motion, should be imposed as a condition of allowing defendant to amend his answer after the reversal of the judgment in plaintiff’s favor and the granting of a new trial with costs to abide the event by the court of appeals,—yet an extra allowance granted plaintiff on the former trial, which would increase such penalty to an exorbitant amount if included, should not be added thereto.</p>

Trial by the court of an action between rival claimants, brought in by order of interpleader, to recover moneys payable as a death benefit in a fraternal beneficiary society.

Trial by the court. This action was brought by the New York Bible Society against Morris M. Budlong, and was, after his death, continued against Julia M. Budlong as his administratrix. The action was tried upon the admissions contained in the pleadings and upon an agreed statement of facts submitted under stipulation of the respective parties.

Hearing of exceptions in the first 'instance at General Term, after dismissal of the complaint at the circuit court in Kings county. The action was brought by Lucy S. .Morrison, as administratrix, etc., of Samuel H. Morrison, deceased, against The Metropolitan Telephone and Telegraph Company to recover damages sustained by the death of plaintiff’s intestate. The facts are stated in the opinion.

The action was brought by William Knox, an infant, •against The Hall Steam Power Company to recover for personal- injuries. The facts are stated in the opinion

<p>1. Conversion ; pledgor's action against re-pledgee for sale without notice\. Plaintiff deposited stocks with B. & Co. to secure any over-drafts he might make on them, and B. & Co., without his knowledge, pledged them with other stocks to defendants for a call loan made to B. & Co.; and defendants sold all the stocks without due demand on B. & Co.—Held, that plaintiff could maintain an action directly against defendants for conversion, for this purpose ratifying the wrongful act of B. & Co.</p> <p>2. Case distinguished!] The case of Thompson v. St. Nicholas Bank, 113ÍV. Y. 325, explained.</p> <p>3. Election of remedies!] The rule that where a person has his' election between different remedies,—as for instance, suing in equity for subrogation or at law for tort,—the bringing an action on one theory is conclusive, and precludes him from afterwards maintaining a different action,*— does not apply to preclude him from recovering on such different cause of action introduced by way of amendment in the same action first brought for the other relief. If such amendment is improperly allowed the remedy is by appeal.</p>

<p>1. Indictmentl\ The validity of an indictment is not affected by the fact that it was procured upon the testimony of a witness who had been convicted of a felony; since by Penal Code, § 714, a person convicted of a felony is made a competent witness in any cause or proceeding, civil or criminal, leaving his conviction to be proven against him to affect his credibility.</p> <p>2. Libel; criminal.] Libel is prosecuted and punished as a" crime / for the reason that it tends to provoke animosity and violence and to disturb the public peace and repose; it makes no difference, therefore, whether the person libeled is of good or bad reputation.</p> <p>3. Indictment; libel.\ Although it appears from the alleged libel itself, which is set forth in the indictment under a general allegation that it was maliciously published, that it is a communication between persons interested in if within Penal Code, § 253, providing that such a communication is presumed not to be malicious and is privileged, it cannot be determined on 'demurrer that the communication was privileged ; since the presumption that it was published without malice is disputable, and the court cannot find as a matter of law without evidence that the statements in the communication are true and were published in good faith.—So held, where the libel set forth in an indictment was contained in a letter which purported to be a communication from a stockholder to officers of the corporation, charging one of them with misappropriation of corporate funds.</p> <p>4. The same.\ Where an indictment for libel avers generally that the alleged defamatory matter was published concerning the complainant, it is sufficient on demurrer although it does not clearly appear from the alleged libel itself that it referred to him.</p> <p>5. The same.~\ If there is a sufficient doubt as to whether the alleged defamatory matter in an indictment for libel (set forth without explanation) is libelous per se to make it a question of fact for the jury,—a demurrer to the indictment will not be sustained.</p> <p>6. Forms.] Form of an indictment for libel.</p>

Trial by the court. This was a bill filed by James N. Wells and William J. Wells, individually and as the executors of the last will and testament of James Nicholas Wells, deceased, for the judicial construction of the will of their testator.

Appeal by defendants from a judgment rendered at Special Term in March, 1893, construing the will of testatrix and instructing the executor. This action was brought by Ferdinand T. Hopkins, as executor, etc., of the will of Martha B. T. Hopkins, deceased, to obtain a judicial construction of such will and for instructions as to his duty in respect to paying off a mortgage for $10,000 upon premises in East Forty-sixth, street, owned by testatrix at the time of her death.

-Trial before a referee to hear and determine. The nature of the action and the facts are fully stated in the opinion of the referee.

Motion to punish Charles Johnson, one of the defendants and the purchaser of the property at the original sale, for contempt. This action was brought by George Betz against Peter Buckel and others, to foreclose a mortgage. The facts are fully stated in the opinion.

This action was brought by Louis Monnet and others; against Henry Merz to recover the balance of an account. The facts are fully stated in the opinion.

Appeal by defendant from a judgment for plaintiff entered upon a verdict. The action was brought by Simon Levy against Caroline Ruff to recover commissions, to which the plaintiff claimed to be entitled as a real estate broker in procuring a purchaser for defendant’s property. The further facts are fully stated in the opinion.

Action upon a contract for goods sold brought by John Douglas Company against William V. Moler. The further facts are fully stated in the opinión.

Motion to compel the payment of referee’s fees. Eleanor F. Bishop brought an action against Mabel C. IC. T. Bishop. Samuel H. Randall was attorney for the plaintiff, Mrs. Bishop. He had a dispute with his client, and she made a motion to substitute, another attorney in his place, and to compel him to pay over certain moneys, which he claimed and retained as his fees. The matter was referred to James Ridgway to take proof and report.

<p>Motion to cancel a notice of suit pending.</p> <p>Action by James Murray and others against John C. Barth and others to foreclose a mechanic’s lien.</p>

<p>1. Damages.] In an action by an abutting owner to recover damages for the injury to the value of her premises caused by the operation of defendant’s elevated railway in a street, where issue is taken as to plaintiff’s ownership of the premises and easement, and plaintiff’s uncontradicted evidence establishes her title thereto, she is entitled to the direction of a verdict for nominal damages, although she fails to show any excess of injury to her premises caused by defendant’s railway, over and above the benefits which are derived from its presence.*</p> <p>a. CWj.] In such an action, defendant’s denial of all knowledge or information sufficient to form a belief as to plaintiff’s allegation of the ownership of the easement interfered with by defendant’s railway, causes “ a claim of title to real property ” to arise upon the pleadings within the meaning of Code Civ. Pro., § 3228, subd. 1, entitling plaintiff to costs, as of course, upon a judgment in her favor.</p> <p>3. New trials.] If nominal damages will entitle the party to whom they should have been awarded to costs, a judgment for the adverse party must be reversed.</p>

The action was brought by Henry Steubing against the N. Y. Elevated Railroad Company and the Manhattan Railway Company to restrain the further maintenance and operation of defendants’ elevated railroad in front of plaintiff’s premises, Nos. goo and 902 Third avenue, and incidentally to recover damages already thereby sustained plaintiff. The further facts are fully stated in the opinion.

<p>1. Mortgage; equitable priorities.] The holder of a second mortgage, who by agreement with the mortgagor is entitled to receive on account of his debt instalments which shall become payable to such mortgagor under a prior mortgage on the same premises at various stages of completion of the buildingthereon, by waiving such right and permitting the mortgagor to use „ such payments for other purposes, even in completing the building, subordinates his mortgage to the extent of the payments so waived to a subsequent mortgage, the terms of which require such second mortgage to be satisfied upon completion of the building, the holder of the second mortgage living knowledge of that fact. In such case a court of equity will apply the rule that where a creditor has a lien upon two funds for the security of his debt, and another party has an interest in one of them without any right to resort to the other, such creditor will be compelled to take his satisfaction out of the fund in which he alone has an interest, so that both parties may, if possible, escape without injury.</p> <p>■z. The same.} The rule will be applied even against an assignee in good faith and for value of such second mortgage, as he takes his assignment subject to all equities.</p> <p>3. The samel} The fact that a portion of the payment which the mortgagor is thus allowed to receive is paid by him to the holder of the third mortgage on account of a sum due him outside of the mortgage, will not affect his equities, where his-agreement does not make such payments applicable to his mortage debt. ,</p>

<p>1. Equity ; right of privacy.] It seems, that an inventor is a public character, and that publication of his biography and picture without his consent, if he is living, or without the approval of his family if he is dead, is not an invasion of the right of privacy.</p> <p>2. Constitutional law.] Under the provisions of the U, S. Constitution (Art. I, 1st amend.), and the constitutions of most of the States, securing the freedom of speech, and of the press, a person may utter or publish what he pleases concerning another, without the latter’s consent, if living, or the approval of his family, if dead, provided he commits no offense against public morals or private reputation.</p> <p>Distinguishing Schuyler v. Curtis, 27 Abb. N. C. 387.*</p> <p>3. Injunction.] Injury to property, whether actual or prospective, is the foundation of the jurisdiction of a court of equity. A court of equity cannot, therefore, enjoin the publication of a biography of a deceased person merely upon the ground that it injures the feelings of the family of deceased, †</p> <p>4. The same.] It seems, that a court of equity has no jurisdiction</p> <p>to restrain a libelous publication.</p> <p>5. The same.] The reproduction or publication of a picture of a deceased person, which has been obtained from the family of deceased upon certain conditions, which have not been complied with, will be enjoined upon the ground that its publication would be a violation of confidence, or breach of contract between the parties.</p>

Trial by court without a jury. Action by Philip Schuyler against Ernest Curtis and others to enjoin proceedings by defendants for the erection of a statue of Mary M. Hamilton deceased, the stepmother and aunt of plaintiff, on the ground that its erection and exhibition were unauthorized and would cause pain and distress to the relatives of the deceased. [For the complaint in this case in full, see 27 Abb. N. C. 387.] The further facts are fully stated in the opinion.

<p>1. Specific performance ; Encroachment of building uponstreeth\ It seems that the encroachment upon the line of the adjoining street of the building on premises contracted to be sold, will defeat the right of the vendor to specific enforcement of the contract the same as would an encroachment upon an adjacent lot.</p> <p>2. The same?± Where, however, the testimony of surveyors as to the alleged encroachment is conflicting, the vendor’s witnesses testifying that there is none, and the encroachment claimed by the purchaser’s witnesses being very slight, and it appears that . the building was erected under the direction of the building department of the city,—the court is justified in finding as a fact that there is no encroachment; and in view of the further fact that no private individual can bring an action to remove or abate the alleged encroachment, will hold that the title is marketable and decree specific performance.</p> <p>3. Cases Cited.\ The authorities on the effect of encroachment by buildings and the remedy therefor fully collated and explained.*</p>

<p>1. Injunction^ An injunction will not be granted unless the injury to be prevented is real and substantial, and there is no adequate legal remedy ; the injury must not only be irreparable, but the court in granting the injunction must not do irreparable injury to the other party; it should not, in its discretion, grant an injunction where it would create a greater wrong than it is intended to remedy.</p> <p>2. The same; encroaching wall of building.] In an action for a mandatory injunction to compel the removal of a strip of one inch from a wall of a building encroaching to that extent on plaintiff's land, it appeared that plaintiff owned a strip four feet six and one-half inches in width between her building and defendant’s house, upon which the alleged encroachment was made; she was aware of the fact of the encroachment during the progress of defendant’s building, but delayed action until after its completion; the land covered by the encroachment was of small value, and its occupation did not materially interfere with the use of plaintiff’s building.—Held, that under these circumstances, it would be inequitable to award an absolute injunction, but that plaintiff might amend her complaint so as to claim alternative relief, by asking for an injunction unless defendant would pay the value of the land encroached upon, and such damage as the taking or appropriation had caused her, and offering to release to the defendant the strip so covered by defendant’s wall on payment of such value and damages.*</p>

Defendant’s exceptions to a direction . of a verdict in favor of plaintiff at a Circuit of the Supreme Court, ordered to be heard in first instance at the General Term. Action by Roderick W. Cameron against Charles H. Tompkins upon a note for $5,027.50, dated March 14, 1890, and payable at the Hanover National Bank in New York City. The complaint was in the usual form.

Action by Judith M. Traver against Thomas O. Purdy and others. The defendants are the heirs-at-law and administrators of Isaac S. Purdy, deceased.