Volume 48 — New York State Reporter

<p>Executors and administrators—Costs.</p> <p>Defendants, as executors of a deceased executor, were cited to account for property of the estate of which their testatrix was executor which had come to their hands, and set up the statute of limitations as a defense, on which they were defeated. They claim to have acted on the advice of counsel and that of creditors of the estate they represented. Held, that such plea was an unconscionable one under the circumstances, and that the defendants were personally liable for the costs.</p>

<p>1. Supervisors—Audit of accounts—Evidence.</p> <p>Supervisors are not compelled to receive evidence in regard to an account presented to them when such evidence could not affect their decision.</p> <p>2. Same—Sheeiff’s account.</p> <p>Where the return to a writ of mandamus shows that the board in auditing a sheriff’s account acted on the statement and admission of the sheriff, and allowed him at the proper rate for each day’s board actually furnished, it cannot be said that the board passed on the account without evidence being taken, or that they did not pass on the several items of the claim.</p>

<p>1. Malicious prosecution—Replevin.</p> <p>An action for malicious prosecution may be maintained for the bringing of a civil action in replevin and the taking of goods therein.</p> <p>2. Same—Probable cause.</p> <p>After the trial and verdict for the defendant in one of several actio ¡is of replevin, brought by different parties, upon the event of which it was agreed the others were to depend, a stipulation was given by the plaintiffs in one of them, discontinuing the action, and that defendant might enter judgment dismissing the complaint. In an action for malicious prosecution, Held, error to charge that such discontinuance was prima facie evidence of want of probable cause.</p>

<p>Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff.</p>

<p>1. Highways—Dedication.</p> <p>In October, 1890, a highway commissioner in due form made an order laying out a highway over the lands of J., plaintiff’s testator, and over the lands of W. The two landowners brought an appeal from the order, and while it was pending the landowners made and delivered to the referees a deed conveying the use of the road as a public highway between December 1st and May 1st in each and every year, the commissioner to have the right to work the road at any season, but the gates upon said road to be kept closed from May to December, during which time the public had no use for the road, and the referees reversed the order appealed from. Held, that by the delivery and acceptance of the deed the locus in quo was dedicated to the public as a highway, and a court of equity would not interfere to restrain the working of the highway on the ground that the grant was void because the road was not open and free to the public at all times.</p> <p>2. Same.</p> <p>The power to purchase or take lands by voluntary conveyance for highway purposes implies the power to take such interest as the necessity of the case or the public good may require.</p>

<p>Appeal by plaintiff from judgment dismissing the complaint, entered upon the report of a referee.</p>

<p>Railroad—Elevated—Injunction.</p> <p>Where the evidence abundantly establishes the fact of substantial damage to the fee value of property by the maintenance of an elevated railroad, but does not sustain a finding of damage to the amount named in the decree as an alternative to the granting of an "injunction, the decree may be modified by providing that an injunction issue without an assessment of fee damage, with a suspension thereof for a reasonable time to enable defendant to acquire title to the property or easements taken.</p>

<p>1. Master and Servant—Discharge.</p> <p>Where the court embraces in its charge three causes of justification for the discharge of a servant, and charges thatif the jury finds their existence-they might find justification, and one of such causes standing alone would be sufficient, the defendant is entitled to a charge as to such cause distinct from the other two.</p> <p>2. Same.</p> <p>Plaintiff was employed by defendant’s firm because of his peculiar skill and knowledge, and to build up the business. In an action for wrongful discharge, defendant asked a charge that if plaintiff made an arrangement to thoroughly renovate a couch for a customer for less than one-half what it could properly be done for and then directed the work to be done in such a manner that the contract would not be carried out substantially, and thereby caused the loss of the customer, that would be sufficient in law for a discharge. Field, that defendant was entitled to have such proposition charged; that such action would conclusively show a wilful disregard of instructions, the purpose of his employment and a lack of interest in the welfare of his employer.</p>

<p>Board of clams—Appeal.</p> <p>Where a claim is wholly rejected by the hoard of claims and no award of any sum is made, the light to recover some sum must conclusively appear on appeal to this court in order to raise a question' of law, or there must have been some material and erroneous ruling adverse to the claimant, which prejudiced him in the prosecution of his case.</p>

<p>Appeal—Motion por reargtoment.</p> <p>This case was decided by the court of appeals, second division, which ordered a new trial. Upon this motion for reargument, the defendants contend that the court overlooked the point that there is a plain distinction between the case of a business corporation which has the means or the ability to carry on its business at a profit, and that of such a corporation having no public duties or functions to perform, which finds itself unable, from no fault on the part of its managers, to conduct its business without loss. Reid, that while this court is not prepared to say that such distinction does not exist, yet as a new trial has been ordered, the question can be raised in the court below and brought up if desirable on the pcw appeal, and therefore a reargument should not be had.</p>