Volume 33 — New York Reports

The action was tried before the Hon. Joseph S. Boswoeth, Chief Justice of that court, without a jury. A judgment in favor of the plaintiffs was entered upon the report and findings of the judge for $35,603.74.

<p>Defense of usury. The defense of usury can be set up only by the party bound by the original agreement to pay the sum borrowed, or by the sureties, heirs, devisees or personal representatives of such party.</p>

Demurrer to defendant’s answer. The action was for penalties incurred for running cars without payment of a license fee of fifty dollars on each car, as required by a city ordinance passed December 31, 1858. The answer denied the liability of the defendant, and the authority of the city to exact a license fee, or impose a penalty for running the cars without payment of such fee, &c.'

<p>Where a vessel is owned by several in shares, they are tenants in common as to the ownership of the vessel, though they are partners in respect to its earnings.</p> <p>As partners in the earnings, all should be joined in an action to recover for freight earned by such vessel.</p> <p>But for defects arising from nonjoinder of plaintiffs, advantage can only be taken under the Code, by answer of demurrer.</p>

Action for penalty incurred by forcibly passing plank road gate without paying toll. The plaintiff was nonsuited, on the ground that one Yoak was lessee of that portion of the road, and that in the absence of any actual injury to the company, no action could be maintained for the penalty. The judgment was affirmed at General Term.

Action to recover the possession of personal property, namely, a printing press, types and implements adapted to the printing of a newspaper, and which had been used for that purpose. The plaintiffs — six persons—showed title in themselves in the .property; the interest of the plaintiff Chamberlain being one undivided half, and the other plaintiffs separately owning shares.

<p>Where the contract is not for the loan of money or of goods, nor for the forbearance of an existing debt, it cannot be usurious.</p>

<p>In an action upon a promissory note when the defense is usury, it is competent for the defendants to prove that both the maker and indorser of the note resided in Buffalo, and had no expectations of having funds in New York at the maturity of the paper, and that the note was made payable in New York with the design that the- plaintiff should realize from the transaction one-half of one per cent in addition to the legal rate of interest.</p> <p>Upon a renewal of an existing loan by giving new notes payable at the same place as the former, no question of exchange can arise. Any exaction beyond interest in such a case is usury.</p> <p>And such notes being void, all the securities which follow or grow out of the transaction, are likewise void, as usury contaminates all subsequent securities.</p>

<p>A contract of loan is not rendered- usurious by a separate and distinct undertaking between the parties, that the lender is to receive the deposits of the borrower, and to keep them safely, and pay them over on demand, on condition that the notes discounted shall be paid in the city of New York, by means of which an exchange of one-half of one per cent is realized to the lender, on the amounts of the paper discounted.</p> <p>Where the relation of the party as a borrower is distinct from his relation as a depositor, the two relations will not be confounded with each other to establish the existence of usury.</p>

<p>In an action upon a promissory note, held hy the plaintiffs as collateral security, where the defendant sets up in his answer the defense of payment, he may give in evidence any facts, which in law, amount to a satisfaction of said note, as against such plaintiffs.</p> <p>Where such note, held as collateral security hy the plaintiffs, had been paid to the plaintiffs by the payee thereof, by the delivery of lumber of sufficient value to satisfy the same, which lumber was delivered to, and accepted by, the plaintiffs in pursuance of an agreement that the payee might withdraw any of the collaterals held by the plaintiffs to the amount of lumber delivered to them, and he designated such note to be withdrawn, Held, that under the plea of payment, the defendant might give evidence of such agreement and the transactions under it, and that when proved the plea of payment was sustained.</p> <p>Held, also, that the note having been given for the accommodation of the payee, that such agreement and the transactions under the same amounted to a payment of the note as between the maker and the payee of the same.</p>

This was an action for an alleged breach of the covenants in a lease of premises Ho. 168£ Fulton street, Hew York.

The action was upon a promissory note. The defense was usury.

The summons in this case was for relief. The complaint alleged that the plaintiff possessed certain chattels, by virtue of an assignment, duly executed and delivered to him, by the “ Forest and Agricultural Steam Engine Company,” formed under the General Manufacturing act, &c., and that the defendant wrongfully and unlawfully seized said property and took possession of it, and divested plaintiff of his possession of it, and still retains it; and that the property is worth…

The action was by the acting executors of Uriah P. Levy deceased, to obtain a judicial construction- of parts of his will. The testator was domiciled and died in the city of ¡New York, in March, 1862, leaving a widow surviving him, and brothers and sisters, nephews and nieces, his heirs-at-law and next of kin. At his death, he owned real estate in the city of ¡New York, valued at $20.0,000, and his personal estate was inventoried at $131,000.

The following is a statement of the facts: The plaintiff, Alfred Booth, is the creditor of the late firm, composed of William… Held: per Judge Sutherland’s opinion, was that such an organization would be void as to the person intended to be hindered, delayed or defrauded. 3d. The proof is (and the plaintiff does not deny it) that property was transferred to the saw-mill company by Mont- ■ gomery and Lund, they being copartners, Montgomery owning three-quarters and…

Action upon an undertaking given by defendants for the appearance of one William Breck, who had been arrested on a capias ad respondendum. The undertaking was in the usual form. After action commenced, the defendants at Special Term, moved for an order allowing them, on payment of costs, to surrender the said Breck in discharge of their liability as bail for his appearance. The court granted the motion and made the order prayed for.

The questions involved in this action were brought to a hearing in the first instance at a General Term of the Supreme Court, in the fifth judicial district of this State, upon a case submitted in… Held: and more than two-thirds of the senate agreed with them. Fessenden said (Cong.

The action was for the recovery of rent. It was alleged in the complaint that the defendants had been tenants of the plaintiff for the year ending on the 1st of May, 1854; that they paid the rent np to that time; that by permission of the plaintiff they continued in possession as his tenants until the 1st of May, 1855, and that after that date he resumed possession of the premises; that four hundred dollars,' payable quarterly, was a reasonable sum for such use and…

The action was brought to recover certain penalties imposed by a statute passed in 1858, in the following words: “ Whenever any pier or bulkhead in the port of Hew York shall be incumbered, or its free use interfered with, by merchandise, lumber, or any other obstructions, whether of loose material, or built upon, or affixed to the pier or bulkhead, it shall be the duty of the commissioners [of pilots] to notify the person or persons placing or keeping such merchandise or…

This action was brought by the attorney-general to recover for moneys in the hands of the defendant, which, it is claimed, the defendant, by law, ought to have paid over to the State treasurer. The defendant claims to hold the moneys in question as his commissions and fees as chamberlain of the city and county of New York.

The sum of two hundred dollars was bequeathed to each of the five minor children of George L. Chapman, and the same was loaned to the latter, upon interest. To secure the payment thereof, he executed a bond, with a mortgage, in which his wife joined, upon certain lands in the county of Rensselaer, conditioned to pay the said principal sum of two hundred dollars, with the interest, to each of the said infants as they respectively attained the age of twenty-one years.

The action was for work and materials. The complaint-alleged that in November and December, 1863, the plaintiff performed work, labor and services, and furnished materials, on the public roads of the city of New York, at the request of the defendant, specifying the value thereof, and claiming that the defendant was indebted to him therefor.

Action to foreclose a mortgage executed by defendants to Christian Mentz, Jr., as treasurer of Erie county, to secure the payment of a certain bond conditioned to pay a sum therein named to the obligee or to his successors in office, in trust for certain infants therein named. The complaint contained the necessary averments, showing the plaintiff entitled to maintain the action for forclosure. The answer contained a general denial of the facts set out in the complaint.

The action was brought by the receiver of the E. Y. Central Insurance Company (a corporation organized in 1851, under the general law of 1849), to recover the amount of a note in the following words: “ $1,400.

The plaintiff has for many years provided the gas,, with which the streets and public buildings have been lighted in that part of the city of Hew York north of the center of 69th street. The rates at which it was furnished were never fixed by express contract, except for the year preceding the 9th of July, 1859.

Action upon a warranty of a horse, made by defendant when he sold him to the plaintiff.

<p>A corporation is not limited to the exercise of the powers specifically granted, but possesses, in addition, all such powers as are either necessarily incident to those specified, or essential to the purposes and objects of its corporate existence.</p> <p>The common council of the city of Buffalo have full and ample power to take and hold any property transferred to them for the use of common schools in said city.</p> <p>By the term “ common schools,” is to be understood such schools as are common or open to all, in a certain locality. Per Davies, J.</p> <p>Prior to 1851, the defendant had power, under the laws of the State, to establish and maintain free schools within its limits, and could legally take and hold real estate for such purpose.</p>

<p>' Where the executrix of the estate, of N. E. received as collateral security the assignment of a mortgage held in trust, for the payment of a personal debt of the trustee due to the estate, for which assignment there was no legal consideration, and the executrix collected the moneys due on such mortgage and distributed the same among the next of kin and legatees of said estate,</p> <p>' in an action brought by the cestui que trusts against such' next of kin and legatees, to recover the moneys thus distributed to them as proceeds of said mortgage, Seld,</p> <p>That such next of kin and legatees were liable therefor.</p> <p>That the rights of the parties were not altered by the fact that the defendants received, at the same time, other moneys than those arising out of such mortgage.</p> <p>That receiving the plaintiff’s money without giving value for it, they are liable therefor, though mixed with other money belonging to them at the time of receiving it.</p> <p>The answer of the executrix admitting the receipt of the money upon shch mortgage and thus distributed, is admissible, and binding upon the defendants made parties after her death by bill of revivor and supplement.</p> <p>The General Term of the Supreme Court have jurisdiction of an appeal to the chancellor from the decision of a vice chancellor, declaring the rights of the complainants, anS referring the matters to a master for the proper accounting, which appeal was pending at the time the Court of Chancery was abolished by the Constitution, &c., in 1846.</p>

The facts in this case will sufficiently appear in the opinion of Beowjst, J., who delivered the prevailing opinion.

Weit of mandamus to the contracting hoard to compel them to award a contract to the relator to do certain work upon the Champlain canal, in accordance with proposals put in by the relator for performing such, under an advertisement by said board for proposals for doing the same, the relator claiming that the proposals made by him were the lowest and most advantageous to the State tendered to the board, and that he was entitled to a contract for the performance, &c. The…

The action was brought to recover legacies bequeathed to the plaintiffs by the last will and testament of Eliza H. H. Eieben, deceased. The only question presented relates to a legacy of $50,000 to Pierre Eieben, the husband of the testatrix; and the right to recover that sum depends upon the question whether the will was a valid appointment of that amount, under a power contained in the will of her father, Samuel Hicks.

Judgment, December 14, 1859, $2,560.66. Judgment, December 16, 1859, $1,020.73. The legislature, in requiring the statement of facts accompanying a judgment by confession to be properly verified by the oath of the party, intended that in so far as it related to'things within his own knowledge, he should affirm it to be true.

The assignor of the plaintiff owed the plaintiff $500, for which she held his note.

Action on policy of insurance against loss by fire. The cause was referred to a referee, who found these facts: , On the 15th of February, 1852, the Bowditch Mutual Insurance Company issued the policy upon which the action is brought, to one John Hitchins, for $1,000, for five years, upon a dwelling house owned by him in the city of Troy.

This action was commenced November 4, 1857, upon a policy of insurance, ■ issued by the appellant, for the sum of $3,000, upon a building situate in the city of Brooklyn, and which was destroyed by fire January 6, 1857. At the time of the lire the respondent held a valid unexpired policy of insurance for $2,000 upon the same building, issued by the Excelsior Eire Insurance Company.

<p>The Mohawk river is a navigable stream; and the title to the bed of the river is in the people of the State.</p> <p>Riparian owners along the stream are not entitled to damages for any diversion or use of the waters of the Mohawk by the State.</p> <p>It seems, that the common law rules, determining what streams are navigable, are not applicable in this country.</p> <p>The subject of navigable streams elaborately and learnedly discussed, per Davies, S.</p>

<p>When one accused of the crime of murder is required to account for his whereabouts at a particular time, to avoid the force of criminating circumstances, his omission to produce such evidence is not, in law, conclusive of the facts in dispute.</p> <p>The absence of an attempt to account for his'whereabouts, when it appears to be in the power of the prisoner to do so, is strong presumptive evidence against him.</p> <p>But the force of such circumstance must be left for the consideration of the jury; and it is error for the court to instruct them that it is of a “conclusive character;” or that, by such omission, doubtful evidence of guilt “ripens into • certainty.”</p>

The appeal was from a decision of the Supreme Court in the third district, affirming a judgment directed by the referee, Mr. Gale. The following are the findings: First. Edwin Smith and Charlotte A. Smith are, and ever since 1835 have been, husband and wife. Second. In 1849 Mrs. Smith received, as legatee under her mother’s will, about $2,400, of which about $2,000 was her husband's note for that amount. Third.

<p>Where an infant has purchased real estate, and has taken and continued in possession after becoming of full age, and has exercised acts of ownership over the same, he will be deemed to have ratified the contract of purchase. An infant cannot retain the benefits of his contract, and thus affirm it, after becoming of age, and yet plead infancy to avoid the payment of the purchase-money.</p> <p>What acts, after attaining full age, will amount to a ratification of the contract of an infant, elaborately discussed by Davies, J.</p>

<p>It seems that a devise of real estate, universal in its terms, would carry after-acquired lands without any language pointing to the period of the testator's death.</p> <p>But in the absence of unlimited terms in the will, there must be language which will enable the court to see that the testator intended to operate upon real estate which he should afterwards purchase.</p> <p>A declaration in the will that he “ appoints his executors for the full and final settlement of his estate, whether real or personal ”—where he possessed real estate at the time of making the will — is not to be deemed a sufficient indication of his intention that the will should operate upon real estate subsequently acquired.</p>

<p>An innkeeper is an insurer of property, committed to his custody by a guest, unless the loss be due to the culpable negligence or fraud of the guest, or to the act of God or the public enemy.</p> <p>The rule that the landlord shall be held responsible for goods intrusted to him for safe keeping by the traveler, and subject to detention for his charges, is founded in considerations of public policy.</p> <p>The statute enables him to require the observance of appropriate precautions by the guest; but it does not absolve him from his obligation to respond for losses caused by the negligence of himself or his servants, or by the depredations of knaves or marauders, within or without the curtilage.</p> <p>Skid, accordingly, that the innkeeper is responsible for the loss of the goods of his guest by fire, the cause of the fire being unknown, and the guest being free from negligence.</p>

The action was by the plaintiff, as assignee of his father and brother, to recover the value of a horse and harness, left by the brother with the intestate, who was an innkeeper, the property having been burned with the defendant’s barn. The cause was tried before Judge Potter, at the Washington Circuit, and evidence was given tending to establish the following facts: The plaintiff’s brother resided with his father.

<p>Appeal from judgment of the Supreme Court. The action was on a promissory note made by one Edward Berry, and delivered for value to Aaron H. Bedell in his lifetime. The plaintiff, who was the daughter of Aaron H. Bedell, claimed to be the owner and holder of the note, and as such, to recover in this action. The action was originally commenced against Berry, but on motion, Carll and Scudder, executors of Aaron H. Bedell, who had died subsequently to the alleged transfer of the note to the plaintiff, were substituted as defendants in his place, under sec. 122 of the Code. Berry paid to the clerk of the court the amount directed by the order, viz: the note and interest due thereon, and the action proceeded against the substituted defendants.</p> <p>The plaintiff, in her complaint, alleged that Berry, on the 29th of March, 1855, by his promissory note,' in writing, dated that day, for value' received, promised to pay, on demand, to Aaron H. Bedell, or order, the sum of $200 with interest thereon,1 at the rate of seven per cent, per annum, from the date of the note; that Berry paid the interest thereon up to the 29th of March, 1859, in several payments; that the plaintiff is the daughter of Aaron H. Bedell, the payee in said note, and that after the making of the same, and the payments of the interest thereon as aforesaid, her father, the said Bedell, indorsed said note, and delivered the same to her as a gift, to be her sole and separate property; and that she is now the lawful owner and holder of said note.</p> <p>The defendants, in their answer, admitted the making of the note by Berry, and that the amount claimed was due upon it, but denied that Bedell, the payee, indorsed it, or delivered the same to the plaintiff as a gift, to be her sole and separate property, or that she is now the lawful holder and owner of the same, on information aúd belief. As an affirmative defense, the answer alleged that at the time of the pretended gift, indorsement and delivery of said note by the payee therein named to the plaintiff, the said Aaron H. Bedell was in such a state and condition, by reason of sickness, that he was incapable of transacting business of any kind, performing any legal act, or making any sale, gift or other disposition of any property then belonging to him, by then being of unsound mind, and incapable of judging of the effect of his acts, or distinguishing between right and wrong.</p> <p>The cause was tried before Mr. Justice Lott and a jury, at the Suffolk Circuit, in October, 1864. On the trial the plaintiff produced the note, and, as the case states, through her counsel claimed to be entitled to recover in the action on the ground of an alleged gift of said note by the said Aaron H. Bedell to the plaintiff, who was his daughter, during his last illness, and three or four days before Ms decease. After producing the note and proving the indorsement, the note and indorsement were read in evidence, and after an admission of the amount of interest, the plaintiff rested her case.</p> <p>The defendants, as executors of Aaron H. Bedell, thereupon moved the court for judgment directing that said moneys belong and be paid over to the said defendants, on the ground of the insufficiency of the proof on the part of the plaintiff to establish a gift, ccmisa mortis, of the note in question to the plaintiff. The court overruled and denied the motion, and the defendants excepted.</p> <p>The defendants failing to produce any evidence, the plaintiff, by her counsel, moved the court to order and direct the jury to render a verdict in favor of the plaintiff for the amount of the note, and interest thereon; to which motion the defendants, by their counsel, objected. The court overruled the objection, and held and determined that the production of the note by the plaintiff, with proof of indorsement, and the amount of interest, entitled the plaintiff to recover, and directed the jury to find a verdict for the plaintiff for $277.27; to which direction and order the defendants’ counsel excepted. The jury, under the direction of the court, found a verdict for that amount; and the defendants’ exceptions were directed to be heard in the first instance at General Term.</p> <p>The General Term ordered judgment for the plaintiff on the verdict, with costs. Judgment was accordingly entered for the plaintiff, from which judgment this appeal is taken by the defendants.</p>

<p>Where the General Term orders a new trial, both upon the law and the facts, that opens the question for the consideration of this court, whether the General Term were right in holding that the court at circuit erred on questions ° of fact.</p> <p>The title of the consignor to paper shipped to his factors to be sold on commission does not rest in the factors, unless they have made special advances upon the credit of such shipment; or unless, by an arrangement, they are to have a lien upon all shipments for any general balance of advances previously made. *</p>

The plaintiffs, being two of the heirs-at-law of John Hover, deceased, brought this action to determine the construction of his will, and to obtain such relief as they might be entitled to. The testator made his will in 1852, and died in 1857.

This action was originally commenced by James Conlon, as plaintiff, to recover his salary or compensation as one of the policemen of the city of Albany for a part of the year 1857. Pending the suit, and after the trial, Mr. Hadley succeeded to his rights by assignment, and was substituted as plaintiff— Conlon having died.. The defense set up was, that Conlon had been removed from his office prior to the time for which the salary in arrear was claimed.

The actiou was for the value of ninety-one bales of tow, addressed to E. Ludlow, Jr., at New York, and delivered by the plaintiff’s firm to the defendant at Little Ealls, to be transported to Albany, and to be forwarded thence by the People’s Line of steamboats to New York.

<p>Usury cannot be predicated of the advantage obtained by the lender by means .of the difference of exchange between the place of the loan and the place of the payment, where both places are within the State.</p>

The appeal is from an order of the Supreme Court at the General Term in the second district, reversing the judgment at Special Term, in favor of the defendant, and granting a new trial. The case, as decided in that court, is reported in 32 Barbour, 522. The appellant was sued in this State as indorser of a promissory note for $3,378.75, made in August, 1857, and payable eight months after date, at George Selleek’s bank, Morris, Illinois, with current exchange on New York.

<p>It seems that, on questions of testamentary capacity, courts should be careful not to confound perverse opinions and unreasonable prejudices with mental alienation.</p> <p>The true test of insanity affecting testamentary capacity, &c., aside from cases of dementia, or loss of mind and intellect, is mental delusion.</p> <p>A person, persistently believing supposed facts, which have no real existence, against all evidence and probability, and conducting himself upon the assumption of their existence, is, so far as such facts are concerned, under an insane delusion.-</p> <p>If a testator at the time of making his will is laboring under any such delusion in respect to those who would naturally have been the objects of his testamentary bounty, and the court can see that the dispository provisions were or might have been caused or affected by such delusion, such instrument is not to be deemed to be his will.</p> <p>The costs of the appeal may be charged upon the proponent of an alleged testamentary paper, where the court are of opinion that he has conducted improperly in the premises.</p>

The action was hy the plaintiff, as administrator of his son, Thomas P., to recover damages occasioned by the death of the latter, which, it was alleged, was caused by the wrongful act, neglect and default of the defendants. The action was tried in the Mew York Common Pleas, in Movember, 1864, and resulted in a verdict for the plaintiff.

The action was on a penal bond executed by the defendant to the plaintiff, conditioned for the payment of $2,911 and interest, by certain installments. It was dated April 1, 1839.

The action was to enforce specific performance of a contract for the conveyance of an interest in lands in Williamshurgh, and to recover possession thereof. A decree was entered in favor of the plaintiff, and of the defendants with whom the appellant was impleaded, upon the report of the late Judge Kent, to whom the cause was referred.

These are appeals from the General Term of the fifth dis trict, affirming judgments entered on the reports of a referee. The defendants were sued as guarantors of two notes made by the Black River and Utica Railroad Company, a corporation organized under the laws of this State. The notes of the corporation were in the form following: “ $15,000.

<p>Where the consideration of a bond proceeds from a third party, who is acting in tlie name, and for the benefit of the obligee thereof, such obligee is a party to the contract in such a sense as to be entitled to the proper remedies to reform or to collect the same.</p> <p>To entitle a party to a decree of a court of equity reforming a written instrument, he must show first, a plain mistake clearly made out by satisfactory proofs.</p> <p>He must also show that the part omitted or inserted in the instrument, was omitted or inserted contrary to the intent of both parties, and under a mutual mistake.</p>

<p>The provisions of the Code of Procedure, malting, a party a witness in his own behalf, do not apply to parties to suits in criminal prosecutions.</p> <p>The provisions of the Code, changing the common law rule as to the competency fof parties to suits as witnesses, applies only to civil actions.</p>