Volume 52 — New York State Reporter

<p>1. Municipal corporations—Opening streets.</p> <p>The fact that three unconnected sections or streets are known by the same name, and aggregate more than a mile in length, does not require that one-half the cost of opening one of the sections or streets be assessed on the city under chap. 410, Laws 1882, where the different sections were opened at different times, and each is a perfect street of itself, and no intention of connecting them is made to appear.</p> <p>3. Same.</p> <p>The section of the statute relating to the assessment of damages has reference to the length of a street as laid out. If, as opened, it is less than one mile in length, and is of itself a perfect street, the property owners must bear the whole burden, even though it was originally designed to be much longer.</p>

<p>1. Homicide—Murder in the first degree.</p> <p>The accused, after his discharge from, prison, went to the house of K., an acquaintance, and had his hoard for services. On the afternoon of the killing Mrs. K. gave him a little money and two ferry tickets. He was seen to go into the rooms of deceased at 6.30, and heard and seen to come out and run away. Shortly after deceased was discovered bleeding and dying, his skull cut, and his brains spattered on the bed and wall. Roehl visited two saloons the same evening exhibited a large amount of money and two watches, afterwards identified as the deceased’s. Upon his arrest he attempted to strike the officer with a hatchet, which he had concealed, and which was stained with blood, and claimed the watches were his own. On the trial he admitted the killing, and claimed it was done in self defence while struggling with deceased, etc. Held, that the jury had a right to disbelieve the defendant's story, and every element of murder in the first degree was clearly established.</p> <p>3. Same—Chau ge.</p> <p>The court in reciting to the jury the story of defendant as to his struggle with deceased, said, “which, of course, is not gainsaid, and no one lives to gainsay it.” Held, no error</p> <p>3. Same.</p> <p>The court said that it was claimed on the part of the prosecution that there was ample evidence of premeditation and deliberation, and added: “Of course, if the defendant had in mind, when he took the axe in hand, the killing of the deceased, and carried that design out, that is ample deliberation and premeditation.” Held, that the charge was free from objection.</p> <p>4. Same—Evidence.</p> <p>A witness was called by the People to identify the watches found upon defendant as the property of deceased, and was asked preliminarily as to his acquaintance with deceased, and whether deceased and the witness belonged to the same post in the Grand Army, and whether he served with him in the same regiment. Held, no error.</p>

<p>1. Bills and notes—Usuey.</p> <p>Usury is a crime, and he who alleges it as a defense to an obligation to pay money must establish it by clear and satisfactory evidence.</p> <p>8. Same.</p> <p>Where there was some evidence from which it could be inferred that the defendant at various times paid to the deceased payee more than the legal rate of interest, but it did not appear that such payments were made in pursuance of an usurious agreement, and it was fairly inferable from all the evidence that the payments were voluntarily made by defendant and not in pursuance of any exaction made by the payee at the time of the loan, the jury is not authorized to find that the note was given in pursuance of an usurious agreement.</p>

<p>Appeal from judgment of the supreme court, general term, second department, affirming judgment for defendant entered on verdict.</p> <p>Defendant was employed, or undertook, to obtain the lowest price for which the interest of Edwin S. Peck in the partnership of R. C. Yosburgh & Co. could be bought by the plaintiffs. Defendant bought the interest for $6,000 less than the sum which plaintiffs paid for the interest and kept the $6,000 himself, reporting to plaintiffs the larger sum. Defendant claimed that the $6,000, by agreement between himself and Peck, was to be paid for his services, also for his consent that plaintiffs should be admitted as partners in the firm.</p>

<p>1. Insurance (Fire)—Attachment.</p> <p>The right of a plaintiff to prosecute his action in the courts of his own state cannot be defeated by the pendency of attachment proceedings in another jurisdiction by a creditor there, to reach the debt owing to the ■ plaintiff by the defendant, where, the only claim of jurisdiction by the foreign court rests upon statutory authority to seize the debt by and through process proceedings against the agent of a corporation of this state which owes the debt, but which has an agent in the state where the seizure is made; so held in action upon a policy of fire insurance where it was alleged that the claim had been attached by a creditor of plaintiff in an action in Massachusetts.)</p> <p>2. Same.</p> <p>A domestic corporation at all times has its exclusive residence and domicil in the jurisdiction of origin, and it cannot be garnisheed in another jurisdiction for debts owing by it to home creditors, so as to make the ■ attachment effectual against its creditor in the absence of jurisdiction acquired over the person of such creditor.</p>

Upon the trial defendant obtained the verdict of a jury, which plaintiff moves, upon the minutes of the court, to set aside.

<p>Action brought to charge a stockholder of a manufacturing company with liability for the debts of the company.</p>

<p>Referee—Removal.</p> <p>In an action against an elevated railroad the plaintiffs moved for the removal of a referee who had been appointed with their consent, on the ground that he had, in other actions against the defendant, been paid his per diem compensation by the defendant at the end of each month, and that he had sued a client of plaintiffs’ attorneys for his fees. It appeared that such payment was made by acquiescence of the parties, and that the person sued was the prevailing party and liable for the fees. Held, that while such methods of payment of fees are not to be approved, the explanation of the charges are satisfactory, and that the discretion of the court was not abused by declining to remove the referee.</p>

<p>Insurance (Accident)—Notice oe injury.</p> <p>The certificate in question insured against bodily injuries through external, violent and accidental means, provided that it should not apply to a disappearance or injury of which there was no visible sign on the body of the insured, and required notice of any injury with full particulars of the injury and declared that a failure to give such notice within ten days from the injury or death should invalidate any claim thereunder. The insured occupied a store in a building that fell, and as he was missing search was made and his body was found in the ruins three days after the accident. No one knew that he was in the building, but suspicions were aroused by his disappearance. Held, that under these circumstances a notice served within ten days from the finding of the body was sufficient, as no proofs could be made out or facts ascertained until the body was found.</p>

<p>Will—Gift of net residue to executors after payment of debts.</p> <p>One F., who died leaving a wife and two children, by his will made plaintiffs his executors, and authorized- them to sell all and every part of his real estate, to pay all debts out of the proceeds, the will concluding: “And the net residue, after payment of all such debts, I give to my executors and to the survivor of them as joint tenants. I have entire confidence that they will make such disposition of such residue as, under the circumstances, were I alive and to be consulted, they know would meet my approval.” Held, that the gift of the net proceeds of the real estate, after payment of debts, was an absolute gift to plaintiffs as individuals, and was a gift of the net proceeds of the whole of such real estate, after payment of debts, and the plaintiffs could convey a good title as individuals by tendering a short form full covenant warranty deed.</p>

<p>Bill of particulars—Time when events occurred.</p> <p>In an action for rent under a lease from May 1, the answer set up a breach of covenant to keep the roof in repair, alleging that between the-first of January and the date of answer the roof leaked and injured defendant’s goods; that notice was given to plaintiff, but he failed to observe the same or his covenant. Reid, that a request for a bill of particulars as-to the particular days when the damage was caused and the date of the notice to plaintiff should have been granted, as the times when these occurred were material under the circumstances of this case.</p>

<p>1. Partnership—Evidence.</p> <p>Where a bookkeeper of a firm is employed by one of the partners and has kept the books under special instructions from him, and is authorized by him to furnisb statements from the books of the firm to another partner as to the latter’s share in the business, his acts, declarations and communications while engaged in the employment and relating to the information which he was instructed to give, are competent evidence against his principal.</p> <p>3. Same.</p> <p>Although a partner claiming a share in a firm business may put in evidence the books kept by his other partner of the partnership transactions, he is not concluded by the entries made therein of credits to such other partner. He may snow that they were fictitious or represented expenditures foreign to the business of the firm, or were for any other reason not allowable.</p> <p>3. Same.</p> <p>In an action upon the equitable side of the court to establish a partnership and for an accounting, exceptions to evidence should be disregarded, unless the appellant can show that injustice has been done upon the whole case, or that the ruling complained of may have affected the result.</p>

<p>1. Brokers—Commissions.</p> <p>To entitle a broker to commissions, his services must result in a complete meeting of the minds of both the vendor and vendee.</p> <p>3. Same.</p> <p>PlaintifE was employed by defendants to sell their real estate, and procured a purchaser. At a meeting in his office he procured both defendants and said purchaser to sign an instrument which he drew, reciting the payment of fifty dollars to bind contract to be executed elsewhere and on payment of a certain sum. and the balance according to contract, part cash and the rest by a purchase money mortgage. Thereafter the defendants and the purchaser disagreed as to the t rms of the mortgage, the latter having been assured by p’aintiff without authority that it should run five years, and the negotiations terminated and were never resumed. Held, that the instrument so executed was not a contract which could he enforced, but a mere option good until the time for executing a contract, and that plaintiff never procured a complete meeting of the minds of the vendors and purchaser, and hence did not earn his commission.</p>

<p>1. Insurance (Life)—Preliminary proofs not conclusive.</p> <p>The preliminary proofs of loss are not conclusive against the claimant. The statements therein are admissions and may be considered by the jury for what they are worth, but the party furnishing them may show that such statements were erroneous or inadvertently made.</p> <p>2. Same—Burden of proof.</p> <p>The giving of evidence sufficient to establish the fact prima facie does not shift the burden of proof; that remains throughout the trial on the party alleging the fact constituting the issue, and the jury must determine from the whole evidence where the preponderance lies.</p>

<p>Appeal from judgment entered on report of referee in favor of plaintiffs.</p>

<p>Appeal from order denying defendant’s motion to compel plaintiff to receive notice of appeal, etc.</p>

<p>Appeal by defendants from a judgment entered in favor of the plaintiffs after trial of the issues at special term.</p>

This action was brought for the admeasurement of dower in certain real property in the city of New York, of which Jacob Halsted died seized. The complaint alleges that the plaintiff is the widow of Jacob Halsted; that he died on June the 6th, 1891, leaving him surviving the plaintiff, his widow, and five children who, with said Halsted’s executors, are the defendants herein.

<p>Default—Want of notice of trial.</p> <p>Where the parties have both declared .themselves ready for trial and the case has been set down for a day chosen by plaintiff to enable him to examine the defendant before trial, to which the defendant consented, the plaintiff cannot afterwards object that no notice of trial had been served on him.</p>

<p>Vendor and purchaser—Damages for breach of contract—Broker’s commissions.</p> <p>In an action for breach of contract for the sale of land the vendor cannot recovei- the commissions paid by him to the broker. Such payment of commission is a disbursement of his business, and is solely personal to the vendor and not within or touching the contract relations of the parties.</p>

<p>Charter party—Ship brokers.</p> <p>Defendants, who were ship brokers, cabled to the owner of a vessel an offer by which the rate to Bombay was fixed at 35, “ sufficient cargo ballasting Calcutta 31 half,” with "the option Bombay-Oalcutta direct or combined,” which was accepted. Defendants then made a charter piarty for a cargo of 90,000 cases to Bombay and Calcutta, or to Bombay or Calcutta direct, which provided that in case two ports were used sufficient cargo should be left on board for ballast from Bombay to Calcutta, rate to be 25 at former port, not less than 25,000 to be landed at said port, and 21 half on balance landed at Calcutta. The charterer discharged 25,000 at Bombay and the balance at Calcutta. Held, that under all the circumstances the contract would bear the construction that at least sufficient cargo should be left to constitute ballast, and that the charter party as made was authorized by the correspondence.</p>

Appeal by plaintiffs from judgment awarding to them the sum of six cents damages, with costs to the defendants.

<p>Injunction—Pendente lite—Action to bestbain unlawful use of premises.</p> <p>An action by a landlord to restrain the tenant from an alleged unlawful use of the premises, where the complaint does not allege damage to plaintiff, and the alleged unlawful use consists of receiving and forwarding money to be wagered on horse races and the payment to the depositor of such money as he is entitled to upon the result of each race, the question involving the constitutionality of chap. 479, Laws 1887, is one where the court should not interfere by injunction in advance of the trial.</p>

<p>Railboad—Elevated—Stipulations.</p> <p>On obtaining a stay pending an appeal the defendants stipulated that they would not institute condemnation proceedings, and that if plaintiff would deliver to the clerk of the court a deed of the easements they would not file or serve any supplemental answer, or any answer embracing any supplemental matter, or prove or offer to prove upon any future trial or proceeding any transfer of interest of plaintiff, and that if plaintiff should convey the premises or any part thereof, the purchaser might be joined with or substituted for the plaintiff. The original order requiring a stipulation contained the words “ pending said appeal,” but said words were stricken out on re-settlement. Held, that the stipulation could not be construed as binding only during the pendency of the appeal, and that plaintiff having complied on his part and conveyed in reliance on said stipulation, and defendants having waited until a year after reversal to move, it would be inequitable to relieve them and they should be held to the stipulation.-</p>

<p>Marriage—Fraud—Representations as to pregnancy.</p> <p>A marriage cannot be set aside on the ground that plaintiff was induced to enter into it by the representations of defendant that she was pregnant by him, which representations he believed to be true, but which were, in fact, false.</p>

Action to restrain defendants from.covering the floor lights in their premises so as to prevent the light from reaching plaintiffs’ premises in the basement. The lot known as No. 130 West Twenty-third street belongs to one Goldberg. It is twenty-five feet in width and 100 feet deep. There is erected thereon a four-story brick building, running from the front to a depth of forty-eight feet. It is known as the main building.

Appeal by the widow and executrix of the decedent from a decree of the surrogate of Washington county judicially settling the accounts of the executor and executrix of decedent and of the executors of deceased executors of the decedent, except so much thereof as judicially settles the accounts of the executors of Janies Cheeseman, deceased, executor of the decedent.

<p>Appeal from judgment in favor of plaintiff.</p> <p>Action to recover damages for the death of plaintiff’s intestate alleged to have been caused by defendant’s negligence.</p>

Certioran’i to review the judgment of the board of park commissioners of the park department of the city of New York, dismissing the relator from the police force in said department.

<p>Appeal from judgment dismissing the complaint.</p>