Volume 5 — Silvernail Supreme Court Reports

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

<p>1. Indictment. Forcible entry and detainer.—An indictment for forcible entry is good if it contains sufficient averment to inform defendant of the nature of the accusation against him, so as to enable him to prepare his defense, and to admit of the record as a bar to a second prosecution for the same offense. It need not specify the particular acts or means employed by defendant, which constitute the violence used.</p> <p>2. Same.—The particular force used is matter of proof.</p>

<p>Limitation. Part payment.—Payment on a note by an agent who has the general authority to attend to the maker’s financial business takes the note out of the statute of limitations against such maker.</p>

Sally Moon, the alleged testatrix, was an unmarried female seventy-seven years of age, and for about twenty years immediately before her death had been employed in the hosiery mill of Andrew B. Knowlson, the sole beneficiary under her alleged will. She became ill at the mill about six weeks before her death and was thereafter cared for at the house of her grandnephew George Lamphere.

<p>Pleadings. Amendment.—In an action for an accounting brought against attorneys, in which a release under seal is set up as a defense, the plaintiff can prove fraud in procuring such release without an amendment of the complaint.</p>

entered in Onondaga county in the county court of that county upon the report of a referee, in favor of plaintiff for $53.50 damages. The action originated in a justice’s court and came into the county court for a retrial, where a reference was ordered.

In the notice of appeal is the following language: “ The appellants intend to bring up for review upon such appeal said judgment and order denying motion for a new trial on the minutes.”

<p>Appeal from order granting plaintiffs’ motion to discontinue without costs.</p>

Action to recover damages sustained by plaintiff while lawfully driving with a valuable threshing machine over a bridge which defendant had knowingly allowed, for a long time, to remain out of repair and unfit for use.

<p>1. Executors, etc. Sale of real estate.—In a proceeding by a creditor to sell real estate of a decedent to pay his debts, the same facts in substance should be alleged and proved as in the case of a like proceeding by an executor.</p> <p>2. Same.—An order in such proceedings to show cause, issued on a defective petition nine years after its filing, should be dismissed.</p>

<p>Account stated.—A customer, who has retained monthly statements of dealings rendered to him by his brokers, and acknowledged their receipt, examination and correctness, is bound by them, unless he can show some fraud or mistake which will destroy the presumption of their accuracy.</p>

The order of arrest was granted November 8, 1888, the ground stated therein being conversion by defendant of money “ received by him as agent of said plaintiff in a fiduciary capacity.” The complaint alleged that plaintiff shipped certain goods to defendant, then his agent at New York, to sell for cash or on thirty days’ credit; that defendant received and sold said goods, except a portion which was returned, and collected the proceeds of said sales; that he has neglected…

<p>Costs. Separate bills.—Where, in an action of trespass, the court restricted the defendants to one bill of costs and awarded them to one defendant only, it is error, so long as such order stands unreversed, to tax a bill of costs in favor of another defendant and enter judgment therefor.</p>

Action to recover upon an insurance policy. The defense was a want of title in the plaintiff to the property insured; and also setting up : “ the settlement of the claim under said policy and a release and the receipt for such loss by a delivery of a draft of $400.” Plaintiff replied that the settlement was procured by means of false, fraudulent representations ; that the draft had never been used ; that there had been an offer to return the same and it was brought into…

<p>Contract. Construction.—Where the provisions of a contract are ambiguous, a subsequent agreement between the parties, made for the purpose of settling a dispute as to their meaning, will be accepted by the court as the interpretation of the contract.</p>

Action for money had and received by defendant for the use of plaintiff. The defendant’s witness, Vernam, on cross-examination testified that in the transactions in controversy he was acting for plaintiff and her husband. Thereafter, on the examination Or plaintiff’s husband, he was allowed to testify that Vernam had no such authority.

<p>1. Will. Insanity.—Suelde is competent evidence upon the issue of insanity but is not presumptive proof of it.</p> <p>2. Same.—The suggestion of insanity is greatly inpaired where a man has reached the stage when the usual tenor of his long life is wholly changed, when no resources of enjoyment are left, and the present is full of vexations and the future without hope or promise and there is nothing lo enjoy in this, and nothing to fear in the next, life.</p> <p>3. Evidence. Expert.—Where hypothetical questions present no full and fair view to the mind of the expert, the answer may be judged by the omissions in, as well as by the contents of, the hypothesis.</p>

Appeal by the petitioner, Malinda Wheeler, from a decree of the surrogate of Niagara county, granted May 22, 1888, dismissing her petition upon the merits, and also an appeal from an order of such surrogate opening the former decree and allowing costs to the respondent of a suit for a like purpose pending in the supreme court.

Appeal by the New York Central & Hudson River Railroad Company from an order of the Monroe county court, dismissing the appeal of such company from the assessment made by the commissioners in the above entitled proceedings and from the judgment in favor of said commissioners and against said company, entered in Monroe county clerk’s office on the 20th day of August, 1889.

<p>1. Highways. Commissioners.—The commissioner of highways must exercise active vigilance in seeing that the highways of his town do not become dangerous, and in making needful repairs.</p> <p>2. Trial. Motion to strike out.—Where evidence, after its admission, is made to appear to be incompetent, the proper remedy is a motion to strike it out from the case.</p>

Reargument of appeal from order denying to appellant the fees of a referee on the reference of a claim against the executor.

Appeal by the plaintiff, Mary Frances McGowan, from an order reviving this action, by making the executor of the estate of the deceased defendant Catherine Lenihan a defendant therein, and adding Nora Gardner, a legatee under the will of such deceased defendant, as a defendant, and vacating a stipulation for the discontinuance of the action given by the executor and any order entered thereon.

<p>1. Partnership. Heal estate.—Where one partner takes the title to land, purchased with moneys borrowed and subsequently repaid by the firm, in the name of a third person, who transfers it to a corporation, owned and controlled by the said partner, without the consent of his copartner, an action may be maintained by the latter to set aside the conveyance.</p> <p>2. Former adjudication. Pendency.—A pending action for an accounting will not bar an action to reach such real estate.</p>

<p>Appeal from judgment in favor of plaintiff for $5,000 and from order denying motion for a new trial on the minutes. Action to recover for the death of plaintiff’s intestate.</p>

<p>Appeal from a judgment entered in Jefferson county on the 14th May, 1889, upon the decision of the Jefferson ' special term, June, 1888, dismissing the complaint.</p>

<p>Fzecutors, etc. Disputed claim.—Where, in proceedings upon a disputed claim, an executor has inadvertently entered into a stipulation for written pleadings, and serves an answer which omits to set up the statute of limitation, the court, upon proper application, made after reversal of a judgment against him and pending a new trial, will make an order vacating such stipulation and striking out the pleadings served under it, and leave the proceeding to be governed by the usual practice applicable to such cases.</p>