Volume 4 — Silvernail Supreme Court Reports

The action was replevin. It was brought to recover certain articles of personal property sold by the plaintiffs to the firm of Scoville & Roe. The plaintiffs sought to rescind the contract and recover the property in question upon the ground that the sale thereof was induced by fraud. The defendant was the assignee for the benefit of creditors of the firm of Scoville & Roe.

<p>Pleadings. Frivolous.—An answer, which denies “ complaint in each and every allegation therein contained,” is a good denial and not frivolous.</p>

Motion to dismiss appeal from final order in summary-proceedings ; ground of motion is no bond ; answer is sixty-days not yet elapsed; also, the defendant has been removed from possession and no stay desired.

<p>1. Eminent domain, Proceedings.—It is too late, after the appointment of commissioners and a hearing upon the merits, to object to the petition and irregularity of the proceedings.</p> <p>2. Same.—The granting to a railroad company a right to enter upon certain land and build its road, on executing a bond to pay the damages awarded, precludes the owner from objecting that the land so taken was such as the company had no right to condemn.</p> <p>3. Same.—The appointment of a receiver of the petitioner in condemnation proceedings does not change the status of the parties.</p>

<p>1. Municipal corporations. Improvements.—A local improvement is one, the expense of which is met by a fund raised by means of local assessments upon the property supposed to be benefitted thereby.</p> <p>2. Same.—Public improvements are those which are charged upon all the taxable property "within the municipality.</p> <p>3. Same.—The building of a sewer is a local iruimovement.</p> <p>4. Same.—In such case, no approval by the mayor, or repassage by the common council is essential to render the resolution authorizing the improvement effectual.</p> <p>.5. Same.—The common council, when in session, has power, until a contract is entered into with the successful bidder, to reconsider the resolution of acceptance and accept the proposal of another party.</p> <p>■6. Same.—The entry of improper items in the amount assessed does not invalidate the entire assessment.</p> <p>7. Same.—The owner is entitled to an abatement, though the excess of his assessment is small.</p> <p>8. Same.—The city surveyor, in making changes from the specifications, will not be presumed to have acted otherwise than in good faith, or the owner to have been prejudiced thereby.</p> <p>9. Same.—The compensation of an inspector of the construction of local improvements was held to be a proper charge to go into the assessment.</p> <p>10. Same.—Ho reduction in the assessment will be directed, unless the excess clearly appears in such a manner as to permit it.</p> <p>11. Same.—Where the excess can be easily and accurately ascertained, the correction may be made in the amount assessed against each lot by deducting it therefrom.</p>

Appeal by defendant from the judgment of the county court of Seneca county, affirming a judgment of a justice of the peace, recovered for damages for breaking a sewing machine, which the defendant had contracted to transport from Waterloo, N. Y., to Auburn, N. Y.

<p>Costs. Security.—The court may, upon the recovery of a judgment for the plaintiff, order the return to him of a sum deposited as security for costs, though the defendant has appealed from the judgment.</p>

<p>Appeal by the defendant from a judgment rendered upon a verdict of a jury at the Erie circuit in December, 1888.</p>

<p>Appeal by the defendant from a judgment entered in Monroe county upon the verdict of a jury, at the circuit for $300 for personal injuries received by the plaintiff, and also from an order denying a motion for a new trial.</p>

<p>New Trial. Newly-discovered evidence.—Hewly-discovered evidence, which is merely cumulative and of the same general class of testimony as that given on the original trial, is insufficient to justify the court in granting a new trial.</p>

<p>1. Sale. Executory.—Where the vendor, upon an executory sale and refusal of vendee to accept part of the goods as unmerchantable, elects, to resell and hold the vendee for the difference, the relation of principal and agent is thereby established, and demands the exercise of good faith and reasonable diligence on the part of the vendor towards the vendee.</p> <p>2. Same.—Degree of diligence, required of vendor on resale in such case,. stated.</p>

<p>1. Pleadings. Contract.—Where the gravamen of the action is breach of contract, the allegations of fraud .in the complaint, which induced the plaintiff to enter into the contract, do not effect the nature of the action or the remedy.</p> <p>2. Same. Amendment.—An amendment eliminating the word “fraudulently” from the complaint, in an action for breach of warranty, does not introduce or remove a cause of action.</p> <p>3. Same. Fi'aud.—The elements for a recovery on the ground of false and fraudulent representations are, representations, falsity, scienter, deception and injury.</p>

<p>Trade-mark. Fraud.—The use or continuance of a trade-mark, which is not in itself a fraud, nor manifests any intentional or actual fraud upon the public, will not deprive the owner of the legal right to restrain an infringement.</p>

<p>Negligence. Contributory.—The negligence of a party, or his servant,. which does not contribute to the injury, is no bar to a recovery.</p>

<p>Appeal from a judgment entered on the verdict of a jury at the Niagara circuit, and from an order denying the defendant’s motion for a new trial on the minutes of the court.</p>

<p>Witnesses. Impeachment.—Where a question on an impeachment is substantially directed to the same subject matter as that previously addressed to the impeached witness, it is not subject to the objection that the latter had not been asked if he had made such statement.</p>

<p>Appeal: Case.—Where the case on appeal is so imperfect that the question supposed to have arisen cannot be properly examined, it will be remitted for correction.</p>

<p>Appeal. Reargument.—Where the question is a difficult one, and a decision, though not overlooked, was not fully considered on such point with regard to the precise facts, a reargument will be ordered.</p>

Verdict for the plaintiff in the sum of $2,500, taken at the Jefferson circuit. A motion for a new trial on the minutes was denied and an order to that effect appears in the appeal book. The appeal is from the judgment and the order. The case contains ail the evidence. Action is brought to recover damages causedby the killing of plaintiff’s intestate ■on the 13th day of July, 1888, at the city of Watertown.

<p>Place of trial. Change.—Where, in an action for an assault, the defendant denies the assault and alleges an assault. by plaintiff, the place of trial may be changed for the convenience of witnesses, in cas.e those named are to prove his condition after the assault; and the fact that no witnesses were present at the time of the assault is no ground for denying the motion.</p>

<p>1. Money had, etc. Action.—An action for money had, etc., cannot be maintained for money never actually received, though defendant has given credit therefor on a debt due him from the person with whom plaintiff had deposited such amount.</p> <p>2. Sam.e. Pleadings.—The complaint in this action for money had and received was held insufficient.</p>

<p>Writ of certiorari to review judgment of respondents dismissing relator from police force.</p>

<p>Appeal from a judgment entered upon verdict rendered by a jury on a trial at circuit, and from an order denying a motion for a new trial.</p>

<p>1. Former Adjudication. Parties.—An adjudication, subsequent to an. assignment, in an action to which the assignees were neither parties nor privies, is not binding upon them.</p> <p>2. Same.—Such judgment is not a bar against a party thereto in an action between him and such assignees.</p> <p>3. Pleadings. Counterclaim.—Where a counterclaim, arising prior to the assignment, sets up an agreement, of plaintiff’s assignor to account, and that an accounting had been had, and a balance found due defendant, and prayed for an accounting, the defendant is not bound by such prayer, and evidence of such counterclaim should not be excluded on the ground that the proper parties to such accounting are not before the court.</p>

Action on a promissory note given by defendant Hussey in part payment for a hotel. The main defense was that the note was materially altered after delivery in that the words “ with interest from date ” were added.

<p>1. Contract. Public policy.—A contract not to sell asphalt for the purpose of paving streets .except to certain persons for use in their respective cities, is not void as tending to enhance the price of asphalt pavements or to create a monopoly.</p> <p>2. Same. Parties.—A contract made and signed by a party, though" referring to himself therein as representing a corporation, is the individual contract of such party, and the corporation or the persons who constitute it need not be made parties to an action on such contract.</p> <p>3. Pleading. Demurrer.—A demurrer to a complaint admits all the material facts alleged therein.</p> <p>4. Same. Complaint.—The facts alleged were held sufficient to constitute a cause of action for breach of contract.</p>

The relator applied for appointment as village attorney,, claiming to be entitled thereto as an honorably discharged Union soldier, under chap. 464, Laws 1887. His application was rejected, and a person appointed who was not a discharged soldier. He then applied for a writ of mandamus to compel his appointment.

Action to enforce the liability of the trustees of a manufacturing corporation for the payment of its debts by reason of the annual report not being made and published as required by thé statute, § 12 of chap. 40 of Laws of 1848, as-amended by chap. 510 of Laws of 1875.

On the 6th of March, 1884, the plaintiff duly recovered a judgment against the defendant Brickell for $656.41 damages and costs, for rent due upon a lease given by plaintiff to Brickell on July 16, 1881.

Onondaga county on the verdict of a jury, and from an order denying a motion for a new trial made on the minutes of the trial judge.