Volume 33 — New York State Reporter

<p>Slander—Pleading-.</p> <p>A complaint in an action for slander in speaking words not actionable per se which alleges that by reason of the speaking of said words divers persons have refused to associate or transact business with plaintiff, and that plaintiff was thereby deprived of the benefits which would accrue to him from such association and business to an amount specified, states a sufficient cause of action.</p>

<p>Executors and administrators—Bound by knowledge op co-executor.</p> <p>The treasurer of plaintiff was one H., who was also one of the executors of C., as was also the defendant. H. borrowed upon his note of defendant, as executor, moneys of their testator and pledged as security a • bond of plaintiff, apparently valid, payable to bearer and not due. This bond was not issued and H. had no right to pledge it, but of this defendant had no knowledge. Held, that the infirmity in the title of H. to the bond attached to it in the hands of the defendant, executors being joint tenants, and that plaintiff could recover the bond.</p>

<p>•Game Law—Venue.</p> <p>The place of trial of an action to recover penalties under the game laws may be changed for the convenience of witnesses. The right of the court to make such change is not prohibited by the provisions of § 3 of chap. 577, Laws 1888.</p>

<p>1. CONTBACT—To MANUFACTÜBE GOODS SATISFIED BY OFFEB OF DELIVEBY.</p> <p>An ofEer to deliver goods manufactured under an executory contract is-all that is necessary to entitle the vendor to recover. An acceptance of the goods by the vendee is not necessary.</p> <p>2. Same—Evidence.</p> <p>Where the price of the goods was agreed upon by the parties and the value thereof is not put in issue by the pleadings, evidence of such value is immaterial.</p>

<p>Appeal from an order directing an amended answer to be made more definite and certain.</p>

<p>1. Justices’ courts—Jury—Laws 1889, chap. 505.</p> <p>Where the justices’ court has jurisdiction of the subject-matter and the parties, and the case proceeds to trial and judgment without objection, a failure to draw the jury according to the provisions of chap. 505, Laws 1889, must be deemed an irregularity only,which is waived by a failure to object thereto.</p> <p>2. Same—Municipal court op Buffalo.</p> <p>Chap. 505, Laws 1889, does not apply to the municipal court of Buffalo.</p>

<p>Appeal from the municipal court of Buffalo.</p>

<p>Statute of frauds—Promise to pat the debt of another.</p> <p>Upon the case as heretofore presented to this court, the promise, which, evidence tended to prove was made by the defendant to Spruce and Leary upon the confession of the judgment, was alone insufficient to warrant a recovery by the plaintiff; but the promise to pay the plaintiff’s claim, which there was also evidence tending to prove was made by the defendants to the plaintiff upon the adoption by the latter of what had taken place between the defendant and Spruce and Leary, was essential to support the action; and the error was in not submitting the case to the jury in view of the evidence presenting these questions of fact.</p>

<p>Wills—Effect of lapse of legacy charged oh real estate.</p> <p>Testator, by his will, devised an undivided half of a farm in trust for the life of a cousin, with remainder to the children of the latter. He then bequeathed $500 to another cousin, N., to be paid to him or his heirs in one year after testator’s death, by said trustee, and made the same a first charge on the land devised intrust, and authorized the trustee to mortgage the land for such payment. N. died before the testator. Held, that the legacy thereby lapsed and sank into the land, and that the trustee was not required to pay it to any one.</p>

<p>Mortgage—Foreclosure—Parties—Tax title.</p> <p>The holder of a tax deed cannot, when made a party defendant to an action of foreclosure, defeat plaintiff's title hy merely asserting in her answer that she had or claimed a title paramount and superior to him,, without showing in some way what that title is and how derived.</p>

<p>Motion for a now trial, on a case containing exceptions, ordered to be heard at the general term in the first instance.</p> <p>The evidence given upon the trial disclosed the following facts:</p> <p>Prior to December, 1879, Joseph Boric and David P. Day were joint owners of a parcel of land situate in the city of Buffalo, upon which the National Savings Bank held a lien, by way of mort gage. A foreclosure of this mortgage was had, and prior to the sale of the premises under ilie decree entered, therein, Joseph Bork entered into an agreement with Henry W. Box, by which said Box was to purchase Boric’s interest in said premises, in connection with said Day, and hold the same as collateral security for the payment of a debt owing by Bork to Box of about $3,500 ; that in pursuance thereof said Box and Day became purchasers at said sale, and on the 24th day of December, 1879, the sheriff of Brie county executed to said last named parties a deed of said premises, which the parties procured to be recorded. Subsequently said Day commenced an action to partition said premises. Thereafter, and in May, 1883, Boric and Day entered into a written agreement wherein it was agreed by said Day that be would convey his undivided one-half interest in and to said premises to the defendant herein, and said Boric agreed to procure from said Box a conveyance to defendant of the other undivided one-half part of said premises.</p> <p>This agreement was subsequently modified by conveying to Mary Boric a house and lot mentioned therein. In other respects the said agreement was performed) and a deed of the premises was executed by Box and wife to defendant, September 17, 1883, and by Day and wife October 15, 1883. After the agreement between Boric and Day was executed, Boric entered into an arrangement with the plaintiff whereby plaintiff was to pay to said Box his debt, and become the owner of Boric’s interest in the property. This agreement was performed by plaintiff, and he thereby became entitled to all of Boric’s interest therein. The partition action and all accounts between Boric and Day were settled, and said action discontinued. Ho consideration for the conveyances was paid by defendant, but prior to their execution a paroi agreement was made between said parties, wherein it was agreed that defendant should take the title, and hold the same in trust for the benefit of plaintiff and said Day, and should, whenever requested, make conveyances of said premises to such person cr persons as the parties should designate. The land was cut up into city lots and so sold. In pursuance of this arrangement defendant, at plaintiff’s request, executed, from time to time, deeds of conveyance to various persons of said property. Upon none of these sales did defendant receive any part of the purchase money, and mortgages, to secure the purchase price, were taken in the name of plaintiff or Day. The land conveyed to defendant was all conveyed by him as above stated, except five lots; as to these, defendant was requested to execute deeds to the parties entitled, but refused to execute them unless he was paid one-half of the purchase price, and in order to procure the execution of the deeds, plaintiff caused to bo paid the one-half demanded, and thereupon defendant executed the conveyances. At the time defendant refused to convey he assigned no reason for the refusal, made no claim for compensation, had been put to no expense in the matter, and did not claim to own the land. Day having been paid his share of the last sale, plaintiff caused to be demanded of the defendant the money received by him, and upon his refusal to pay this action was brought.</p>

<p>Negligence—Railroads.</p> <p>Plaintiff’s intestate was injured while crossing defendant’s tracks in Buffalo. There were cars standing at that place which obstructed the view of the tracks and extended over the walk. Deceased waited for a train to pass, and when the gates were raised started to cross. The gate-man, who was on the other side, started to lower the gates and called to deceased, as he testified. Deceased passed the standing cars and was immediately struck by the tender of an engine which was backing rapidly. Held, that whether, under the circumstances, deceased exercised proper care was a question for the jury.</p>

<p>1. Lease—Action fob bent—Defense.</p> <p>The lease to defendant of part of a building contained a covenant that he should observe and keep all rules and regulations of the gas and water companies. It contained no covenant by the lessor that water should be supplied or that she would do anything in connection therewith. Defendant having refused to pay a bill for water unless the other tenant paid his share, the water supply was cut off and the -city compelled defendant to put in separate connections before it would again supply water. Held, that these facts constituted no defense to an action for rent, and that he could not counterclaim the amount of the water bill or that paid for putting in the connections.</p> <p>2. Same—Eviction—Bbeach of covenant.</p> <p>If a tenant would avail of a defense of eviction or breach of covenant of quiet enjoyment he must have abandoned the premises.</p>

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

<p>1. Railroads—Trespass—Evidence.</p> <p>Where one of the defenses to an action for damages caused by the operation of an elevated railway is that plaintiff saw the work of construction going on and never objected or interfered to prevent it, it is not error to admit testimony to show that in building the road defendant put posts in plaintiff’s vaults and that plaintiff protested against its so doing.</p> <p>3. Trial—Stipulations—Expert evidence.</p> <p>The owner of real estate in the neighborhood of the property described in the complaint, who testifies to facts, is not an expert within the meaning of a stipulation restricting each side to three real estate expert witnesses.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon the decision of a judge at special term.</p> <p>The action was originally brought against the Mutual Life Insurance Company, and the present defendant, as executor, was afterwards substituted as defendant in place of the company by order of this court, in the nature of an order of interpleader.</p>

85, rendered upon a verdict directed by Judge Truax at a trial term. The action was brought to recover the excess of insurance premiums over one per cent, imposed upon the tenants of a building owned by the plaintiff and part of which was leased to the defendants.

<p>Divorce—Extra allowance.</p> <p>Courts have no power to make allowance to a wife for past expenses incurred in an action for divorce.</p>

<p>Appeal from order awarding costs and disbursements to claimants herein.</p>

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

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

<p>Libel—When a question fob juby.</p> <p>Defendant wrote to the national Temperance Society a letter stating that plaintiff and another were conspiring to swindle him out of some money, and that he did not think the society would be a party to such rascality or take money not their due under or through the help of blacklegs or scoundrels, through false representations or swearing, In an action for libel, Held, that the question whether the effect of the language was such as to bring it within the statute should have been submitted to the jury, and that it was error to direct a verdict for the defendant.</p>

<p>1 Negligence—When occupant of building not liable fob injubies TO STBANGEB.</p> <p>Plaintiff was employed by a firm to deliver boxes to defendant. No* finding the employe who generally received them, he went into a part of the warehouse from which all but employes were excluded, to inquire for him, and another employe pointed to a stairway which was next to an elevator shaft which was open and in a dark place. Plaintiff fell into the open shaft and was injured. Held, that no duty was imposed on defendant to guard the elevator hole, or provide other protection for plaintiff, and that whether plaintiff was a mere trespasser, or was there by sufferance of defendant, he assumed ail the risks of the surroundings.</p> <p>2. Same—Laws 1887, chap. 462.</p> <p>Chapter 462, Laws 1887, was not designed to embrace persons who go upon the premises -without invitation or business, and consequently imposes no duty or obligation on the occupant of the premises with respect to such persons.</p>

<p>Appeal from a judgment entered upon the report of a referee.</p> <p>The evidence is not returned and the conceded facts appear in the referee’s findings of fact. From them it appears that Sarah E. Kims, on- April 16, 1873, was indebted to plaintiff, upon a promissory note, in the sum of $8,000, payable, with interest, •ninety days from its date; that said Kims was the owner of a schooner named George D. Bussell; for the purpose of securing the payment of said note and interest, said Kims executed and delivered a mortgage upon said vessel, which was duly recorded. In and by its terms said mortgage provided that in case default was made in the payment of said note, or if plaintiff should at any time deem herself in danger of losing said debt or any part-thereof, said plaintiff was authorized to take possession of said schooner, her tackle, etc., and sell and convey the said property or so much thereof as would satisfy said debt after giving notice of said sale by publication in a newspaper. That on October 27, 1873, the defendant, for the purpose of securing the payment of seven promissory notes made by said Kims, amounting in the aggregate to $20,000, the last of which fell due December 1,1874, took a mortgage upon said schooner, which contained a like clause as was contained in plaintiff’s mortgage, as herein stated, and caused the same to be duly recorded.</p> <p>When plaintiff’s note fell due it was not paid, and plaintiff, on Kovember 5, 1875, took possession of said schooner for the purpose of foreclosing his said mortgage. While plaintiff was so in possession of said schooner, on said last named date, said Kims executed and delivered to plaintiff an assignment of the net earnings of said schooner, exclusive of towage charges which she might earn upon two round trips to Chicago and return. That in consideration of said assignment plaintiff released and surrendered said schooner and returned her to the possession of said Kims. That thereupon said schooner proceeded on her voyage to Chicago, from thence to Milwaukee, where she took on board a cargo of wheat consigned to W. H. Powers & Co., at Buffalo. After being loaded said schooner was frozen in at Milwaukee and was to leave said port until the spring of 1876. While so frozen in said schooner was seized under a writ of attachment, issued from the circuit court of the state of Wisconsin, in proceodings commenced by the .¿Etna Insurance Company against said Kims and Ozias Kims, her husband; the latter notified defendant of said proceeding, and subsequently defendant caused to be commenced, in the courts of Wisconsin, replevin proceedings, took said schooner from the possession of the sheriff, and retained the same, under and by virtue of its mortgage, caused said schooner to be towed to Buffalo, where she arrived about May 15, 1876, and procured from said Sarah E. Kims an order for the freight moneys, collected the same and applied them upon its mortgage debt. Defendant had no knowledge of the existence of the assignment of the earnings of the schooner to plaintiff until after the completion of her voyage from Milwaukee. That thereafter plaintiff demanded of defendant the freight moneys, and upon refusal to pay them over brought this action. While said schooner was frozen in some repairs were made upon her, which, with the charges incident to her voyage to Buffalo, amounted to the aggregate sum of $500. The referee decidéd, as a matter of law, that defendant became legally entitled to collect and receive said freight moneys and apply the same in reduction of its said mortgage debt; that plaintiff was not entitled to maintain the action, and directed judgment dismissing plaintiff’s complaint, with costs. To the conclusions of law, found by the referee, plaintiff filed exceptions ; these exceptions present the question now here.</p>

<p>1. Lease—Abastdonmekt of pkemises—Laws 1860, chap. 345.</p> <p>A partially open drain or sewer ran under the floor of the premises rented by defendant from plaintiff in which to keep a hotel bar. The sewerage of plaintiff’s hotel emptied into this drain and occasionally overflowed, causing disagreeable odors. Held, that the conduct of the landlord in draining his closets through this drain was not such as to constitute an eviction, and that in the absence of fraud or concealment by plaintiff of the situation, defendant was not justified in abandoning the premises by chap. 345, Laws 1860.</p> <p>3. Same.</p> <p>The lease provided that if the premises were destroyed by fire, or so much damaged as to render them untenantable, either party might terminate it by giving notice, but for no other cause. Held, that the parties had thereby fixed the cause for which the lease could be terminated, and that it could not be terminated for any other cause without plaintiff's consent.</p> <p>(Hatch, J., dissents.)</p>

<p>Application for leave to issue executions on certain judgments of the city court of New York, recovered against the executors of Anna Knoop.</p>