Volume 37 — New York State Reporter

<p>Appeal by judgment creditors of the Bushwick Chemical Works from order denying motion to set aside an order made August 6, 1886.</p> <p>William Brookfield was the. receiver of the firm of Martin Kalbfleisch’s Sons and as such held, among other assets, stock of the Bushwick Chemical Works. On his petition made in 1886, showing that there was danger of said stock becoming valueless by reason of the failure of funds for the necessary working of said works, the order in question was made authorizing said receiver to expend and lay out from time to time such sums as might be necessary for the continuance of said works, on condition that said company surrendered its property to such receiver, and the order authorized the receiver to take possession and operate such works until the further order of the court.</p>

Motion by the plaintiff for a new trial on a case and exceptions ordered to be heard in the first instance at general term, after a nonsuit granted at the circuit.

<p>1. Civil damage act—Owner of building.</p> <p>An owner of a building who entrusts its renting to another without restriction is chargeable with the knowledge of his agent, and where the premises are used for the sale of liquor will be held to have permitted such use and to be liable under the civil damage act.</p> <p>2 Same—Evidence.</p> <p>Evidence to the effect that at the time of the execution of the lease it. was understood that the lessee was not to sell liquor on the premises is immaterial in an action under the civil damage act, where it is undisputed that the agent had knowledge that the lessee and his successor did in fact carry on such business on the premises for years while paying him the-rent therefor.</p> <p>3. Same—Damages.</p> <p>In such action the jury has a right to consult the annuity tables in de termining the probable duration of the joint lives of plaintiff and her husband.</p>

Appeal by the defendant from a judgment of the county court of Cattaraugus county, affirming a judgment of a justice’s court.

Appeal by the village of Olean from an order of special term confirming the award of commissioners appointed to appraise damages sustained by the petitioner by reason of the action of the village in lowering the grade of the street along her premises.

<p>intract—Order giver by cortractor—When rot rotice to owker.</p> <p>A building contractor gave to plaintiff an order on defendant for a sum of money due to him on his contract. The order was presented to defendant, who was a German and unable to read or understand English, and he was informed simply that it was an order and he should sign it to secure the moneys therein mentioned to plaintiff. He was not informed as to its amount or the fund it was drawn against. Held, that this was not such notice to defendant of an assignment of moneys due or to grow due on his building contract as bound him to withhold payment from the conractor, or, in default of so doing, to pay so much of his debt a second time.</p>

<p>Sale—Fraud—Rescission.</p> <p>_ A judgment setting aside a bill of sale for fraud and false representations which is based on false representations found by the court, which representations appear by the testimony to have been made after the bill of sale was delivered, cannot be allowed to stand, although there were other circumstances of fraud which of themselves might require the cancellation of the bill of sale.</p>

<p>Railroads—Elevated—Damages.</p> <p>In the absence of evidence as to what the rents of the premises in question or those in the neighborhood were prior to the construction of defendant’s road, a finding of depreciation in rental value is not authorized by proof of the rental value of houses in other streets of a different size.</p>

<p>Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.</p> <p>Action for goods sold and delivered. Defendant claims that one John W. Rutherford should have been joined as a defendant, and moved to dismiss on that ground, which motion was denied.</p>

Appeal by the defendant from a judgment entered on the verdict of the jury at the Livingston circuit, and from an order of special term denying the defendant’s motion for a new trial on a case and exceptions.

Appeal by the defendant from a judgment entered on the verdict of a jury at the Chautauqua circuit, and from an order denying the defendant’s motion for a new trial on the minutes of the court.

<p>Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury directed by the court, and from an order denying the defendant’s motion for a new trial made on a case and exceptions.</p>

<p>1. Negligence.</p> <p>The defendants were coal merchants and had a high trestle upon which cars ran and from which wagons helow were loaded by a chute. At about the height of the track the defendants had constructed a walk in order to pass along from car to car. This walk was laid on stringers, which were met by braces running up from the sill to the stringer at an angle of about forty-five degrees. The walk was properly constructed and in good condition. A driver of a coal wagon coming to load, struck one of the braces with his wagon or wheel, knocked it loose and when plaintiff passed along the elevated walk some time later the walk tipped and plaintiff fell. Held, that he was entitled to recover.</p> <p>2. Same—Damages—When not excessive.</p> <p>Plaintiff fractured both bones of the lower leg, was confined to his bed six months and the injured leg was shorter than before by two inches; the ankle joint was permanently crippled. Held, that a recovery of $6,500 was not excessive.</p>

<p>Appeal from a judgment dismissing plaintiffs’ complaint.</p>

Action to restrain defendants from maintaining and operating their elevated railroad in front of plaintiff’s premises and for damages.-

Appeal by the defendant from a judgment of the county court of Monroe county, and from an order denying the defendant’s motion for a new trial on the minutes of the court, in an action commenced in a justice’s court and appealed to the county court for a new trial.

<p>1. Eminent Domain—Deceit.</p> <p>An award for property taken for public parks was made to the estate of Ann Bolton; as an item therein damages were included for the forced removal of certain machinery. After confirmation the same parties who alleged before the commissioners that thp machinery belonged to Ann Bolton, presented claims for a share of the award upon the ground that they were part owners of the machinery, under a lease soon to terminate. Held, that they were guilty of bad faith, and that a court of equity would not assist them.</p> <p>2. Executors and administrators—Acting as agents entitled to be. . REPAID EXPENSES.</p> <p>Where executors, who had no title to real estate but had managed and controlled the same with the consent of the real owners, employed counsel and incurred expenses in establishing, before commissioners, the value of real property of their testatrix about to be taken for public parks, Held, that, as agents of the owners, they were entitled to be repaid such expenditures from the award made to their estate by the commissioners.</p>

<p>Executors and administrators—Accounting—Limitation.</p> <p>Where an executor or administrator pays the assets to the next of kin in advance of the final settlement, and there are costs incurred in an action in which the executor failed to recover, the statute of limitations is no defense to a proceeding to compel him to account, brought by the party in whose favor the costs were awarded.</p>

The affidavit, upon which the order of examination issued, states that the testimony of the plaintiff is material and necessary to him; that he is about to leave the state to engage in traveling in the west and other places as a commercial salesman, and does not expect to return until the month of July, when he expects to be in the city for a few days, and then to resume for six mouths or more his said business outside of the state of New York, and that he believes he will…

<p>Motion for leave to amend the justice’s return and to reargue the appeal upon the return so amended.</p>

<p>Principal and agent—Authority op agent to endorse.</p> <p>Evidence to the effect that defendant’s agent had for a long time been accustomed to endorse notes taken upon sales of defendant’s goods, and have the same discounted by the plaintiff and other banks; that defendant received the proceeds of such discounts, and of the notes in suit, is sufficient to sustain a finding that the agent had authority to make such endorsements for defendant.</p>

<p>Appeal from an order of the county court of Wayne county, made ex parte on the application of the petitioner.</p>

<p>1. Sale—Evidence.</p> <p>In an action for a balance claimed to be due on a sale of goods, the question was as to the place of measurement. One of the defendants testified on cross-examination that he bought similar goods of other parties about the same time on the same terms and to be measured at the same place as those in question. One of these other parties was then called and testified that the goods were to be measured at the place claimed by plaintiff to be the place of measurement. Held, that the evidence was properly admitted as an admission of a party and relating directly to the main subject of inquiry.</p> <p>3. Same—Settlement—Account stated.</p> <p>After the goods had been received, defendants mailed a statement thereof to plaintiff, which showed a balance in his favor, and also a check for the amount so appearing due to him. Plaintiff retained the same without objection and used the check. Held, that by this affirmative action on his part he estopped himself from afterwards claiming that the payment so made was not in full of the account, or that there was any balance due to him.</p> <p>3. Same—Evidence—Justice’s court.</p> <p>Evidence of such facts is admissible under, an answer in justice’s court pleading a payment in full.</p>

<p>Appeal from a judgment entered in Erie county December 31, 1889, and from an order, made on the minutes at the .circuit, setting aside a verdict previously directed for the plaintiff and dismissing the complaint</p>

<p>Evidence—Code Civ. Peo., § 829.</p> <p>An administrator, the son, and also sole creditor of an intestate, brought an action, under chapter 314, Laws of 1858, to set aside a deed made by the intestate to certain of his children, upon the ground that it was without consideration and fraudulent as to creditors. Upon the trial one of the grantees testified in her own behalf as to the transaction with the intestate and his physical condition at the time. Held, that the testimony, although contrary to the letter of § 829, Code Civil Procedure, was within its spirit admissible. That the action, although by an administrator, was in fact for the benefit of creditors and brought to attack the intestate’s acts and the evidence in question supported those acts and hence the witness could not be said to have testified “ gainst ” the interest of the intestate’s estate, but did testify against a creditor who derived no title or interest through or under the intestate.</p> <p>(Mayham, J., dissents.)</p>

<p>1. Railroad—Elevated—Findings.</p> <p>In an action against an elevated railroad, the court does not err in refusing to find, as a conclusion of law, that in computing the compensation to be made for the taking of plaintiff’s easements, defendants are entitled to have taken into consideration the benefits resulting to his premises and peculiar thereto from the operation of defendants’ railway. This is not a conclusion of law, but a mediate process in applying the rule of damages.</p> <p>3. Same—Damages.</p> <p>In estimating the loss of rental value, benefits are not to be deducted from the damages, but to be considered in ascertaining whether there were damages, and a finding of the actual loss is sufficient.</p> <p>3. Same—Easements.</p> <p>The easements of abutting owners are not confined to the portion of the street directly in front of their premises; and hence, evidence is admissible to show that plaintiff’s light was cut off by shadows cast by defendants’ station which was twenty-five feet distant therefrom.</p>

<p>Appeal from judgment in favor of defendants.</p>

<p>1. Railroad—Elevated—Charge—Benefits.</p> <p>A refusal to find as conclusion of law that in estimating the damages to the rental and fee value of plaintiff’s premises caused by the interference of defendant’s railroad with plaintiff’s easements, benefits peculiar to said premises, which have arisen by the construction of said road, should betaken into consideration, is proper, especially where there is no finding-that there were peculiar benefits.</p> <p>2. Same.</p> <p>The existence of peculiar benefit and its value must be proved by witnesses credible to the tribunal, and cannot be presumed. It does not necessarily follow from the fact that there was no diminution in the rental value,‘but a steady increase, that the lessening of air and light and convenience had not a hurtful effect on the rental value.</p>

<p>1. Pleading—Demurrer.</p> <p>A demurrer on the ground that “there is a defect of parties plaintiff,” or that “two causes of action have been improperly united in the same complaint, without stating the defects relied upon specifically, is insufficient under § 490 of the Code.</p> <p>3. Same—Sufficiency of complaint.</p> <p>A complaint alleging that nlaintiffs with one K. performed work and supplied materials to defendants and sold and delivered goods to them; that K. had assigned his interest in the claims therefor to one of the plaintiffs, and that defendants had received money belonging to the plaintiffs which they failed to pay over, states facts sufficient to constitute a cause of action.</p>

<p>Appeal from an order of the surrogate of the county of Mew York, directing letters of administration on the unadministered estate of Katharina Strutzkober, deceased, to be issued to Mary Kunkel, and denying the application of the public administrator for the same.</p>