Volume 45 — New York State Reporter

<p>Appeal from a judgment of the Otsego county court, reversing a judgment rendered in favor of the plaintiff by a justice of the peace of that county.</p> <p>The action was for trespass by defendant’s cattle going upon/ the plaintiff’s land, and injuring his crops of corn. The plaintiff’s lands were situated in the town of New Berlin, Chenango county. The defendant’s, which adjoined the plaintiff’s, were situated in the town of Pittsfield, Otsego county. The plaintiff’s lands are bounded on the east by the Unadilla River, and the defendant’s on the west by the same stream. The Unadilla River is= not a navigable stream. The defendant’s cattle crossed from his premises, passing through the stream on to the plaintiff’s lands. There was no evidence that the fence viewers had located or divided any fence between the parties, nor that there had been any location or division of any partition fence made by the parties.</p>

<p>■Town bonds—Reimbursement of town after payment.</p> <p>A town by paying its bonds issued in aid of a railroad does not surrender its right to recover of the county the taxes collected from the railroad under chapter 907, Laws 1869. For the purpose of that act the town may be subrogated to the rights of the original bondholders and be held to own the bonds notwithstanding they have been paid.</p>

<p>Appeal from order of the special term vacating attachment..</p>

This is a proceeding to mortgage, lease or sell the real estate of the deceased for the payment of his debts. Jacob H. Snyder, administrator of the goods, etc., of Jacob A. Snyder, deceased, presents a claim for the sum of $1,500, with interest thereon, on two promissory notes for $600 and $900, respectively, to which claim the heirs at law interpose the defense of the statute of limitations.

<p>1. Contract—Penalty fob delay.</p> <p>The owner of a building settled with the original contractor, deducting for defects 130 days delay and the amount of a sub-contract, and took an assignment of a bond given by the sub-contractor. The original and subcontract provided for performance of the work by the first of April, and ten dollars for each day’s delay thereafter if the same should arise from any act or default on tile part of the contractor. The referee found that-the contractor was delayed by reason of inability to obtain the iron work, and so delayed the sub-contractor, and that the owner was not entitled 10 recover on account of any delay prior to said settlement. Held, no error.</p> <p>2. Same.</p> <p>Subsequent to the settlement the sub-contractors ceased work, leaving some defects and omissions in the work, and plaintiff gave notice that in accordance with the contract he would complete the work, which he proceeded to do. The expense of tills work was allowed in abatement of an action against plaintiff by the contractor, and the re* ee in this action refused to find that they were chargeable with delay in e worir and with the consequences of it. Held, no error.</p> <p>(Follbtt, Ch. J., Vann and Landon, JJ., dissent.)</p>

Proceedings under chapter 28 of the Code to acquire title to-lands of defendant in the city of Brooklyn. The facts sufficiently appear in the opinion of the special term, as follows;

<p>Towns—Surplus moneys—Laws 1891, Oh. 164—Laws 1883, Oh. 458.</p> <p>Chapter 458, Laws 1883, makes full provision for the investment and disposition of moneys received from sales, of the common lands of the town of Gravesend, so that there can he no surplus, and hence the provisions of chapter 164, Laws 1891, do not apply to such moneys in the hands of the town treasurer and commissioner.</p>

<p>Appeal from order, dated February 12, 1891, made at special term, which among other things disallows as a proper item of expenses to be charged against the assigned estate part of the sum paid by the assignee for counsel fees, and denies the assignee’s application for further allowance for such expenses. The facts, appear fully in the opinions at special term, as follows :</p>

<p>1. Stocks—Tbanseeb without authobity to broker's name—Ratification—Estoppel.</p> <p>A'though one who authorizes and permits a transfer to himself of shares of stock upon the books of a corporation must be held to be a stockholder, whether in truth the real owner or not, when the rights of corporate creditors are involved, yet it does not amount to an equitable estoppel in a case where no creditor relied upon or even knew of or could have been deceived by the false appearance.</p> <p>2. Same.</p> <p>Before the question of estoppel can arise, there must be shown to exist some act of the party, done by him or with his assent, creating the alleged apparent relation. If the act done, the false appearance created, is the act not of the party but of some third person, such party is in no manner bound or affected by it unless he either originally authorized it or subsequently ratified it.</p> <p>3. Same.</p> <p>A direction by defendants, New York brokers, to their agent in Baltimore to buy stock, in pursuance of their contract with F. to carry it for him on a margin, would not carry with it an implied authority in the-vendors or assignors to make a transfer upon the books of the company to such brokers.</p> <p>4. Same—Ratification.</p> <p>Such act could only become that of. the brokers by their subsequent ratification, and the forwarding of blank assignments by the brokers, at the same time repudiating the transfer and directing a retransfer, would not amount to such ratification.</p>

<p>Municipal corporations—Estoppel.</p> <p>Under the charter of the city of Rochester the power of contracting for paving, etc., devolves upon what is known as the executive board, after the common council has authorized the work and designated the district upon which the assessment was to be laid. Feld, that a judgment in an action or proceeding against said board to compel them to act with respect to the awarding of the contract, in which it is decided that the board has-the power and it is their duty to proceed, estops the city.</p>

<p>Appeal from judgment of the supreme court, general term, first -department, overruling exceptions and directing dismissal of -complaint.</p> <p>Judgment affirmed, with costs, on opinion of general term.</p>

<p>Appeal from judgment of special term, construing will. The facts appear in the opinion of the special term, as follows:</p>

. Appeal from judgment of the special term, dismissing the complaint on the merits, and also from order denying motion for a rehearing. The following is the opinion at special term:

<p>Pleading—Foreign Statute.</p> <p>In an action under a foreign statute, it is sufficient to set forth such statute and allege that its provisions have been complied with; the steps taken in complying with the statute need not be set forth, as they are only evidence going to support the allegation of compliance.</p>

Graham a trustee under the will of Oliver Butterfield in place of Ehoda Butterfield, deceased. Oliver Butterfield by said will gave one-third of liis estate, real and personal, to his wife Blioda. He divided the rest and residue, real and personal, among liis eight children and one grandchild. The legacies were to be paid within a year after the youngest child became twenty-one.

<p>Eminent domain—Street opening—Opening of pbooeeding.</p> <p>Where proceedings have been pending for six years, and the report of the commissioners has been confirmed and assessments thereunder levied, and no sufficient excuse is shown for the failure of a property owner to file objections in time, the court is justified in refusing to grant his application to vacate the order for the purpose of a rehearing, both on the ground of loches and because the court should not disturb the rights supposed to have been fixed by such order without notice to all parties who have been assessed.</p>

<p>Appeal from a judgment entered in Cortland county on the 21st May, 1891, in favor of the plaintiff for $2,127.98 damages,</p> <p>besides costs, upon the decision of the court at Cortland circuit, a jury trial being waived.</p>

<p>Appeal from order denying application of John McCrone, an attorney, for payment for legal services out of the estate of the infant.</p> <p>The following opinions were delivered at special term :</p>