Volume 55 — New York State Reporter

<p>Appeal from interlocutory judgment sustaining demurrer to-the complaint.</p> <p>The action was brought against the maker and indorser of six promissory notes to recover the balance due thereon.</p> <p>The complaint alleged that the defendant, the Eastern Electric-Company, made a certain promissory note in writing, and delivered the same for value to the plaintiff, and that said note was duly indorsed by the defendant Zebley, for value, before said delivery. A copy of the note is set forth in the complaint, and all the other necessary formal averments are included.</p> <p>The defendant Zebley thereupon demurred to the complaint on the ground that it did not contain the statement of facts sufficient to constitute a cause of action as against him. The demurrer was sustained in the court below, and from its judgment the plaintiff appealed.</p>

<p>Limitation—Discovert of fraud.</p> <p>Plaintiff brought this action to rescind a sale of corporate stock made in 1865, on the ground of fraud, and claimed that, as he did not discover the fraud until 1889, he had a right of action under § 382, sub. 5 of the Code. The evidence showed that no dividends or assessments were made on the stock, that plaintiff resided in the same city with the corporation’s officers and could have ascertained at any time when it stopped work, and that in 1871 he had made up his mind that his money was lost. Held, that plaintiff’s delay showed a lack of reasonable diligence and that the action was barred, as the statute of limitations began to run from the time when, by reasonable diligence, knowledge of the fraud ought to have been obtained.</p>

<p>1. Contract—Restraint op trade.</p> <p>A covenant in consideration of a contract of employment as salesman for a soap manufactory during the pleasure of the employer, which provides that the employe agrees that he will not engage in the business carried on by his employer within the city of New York, for himself or any person or persons, directly or indirectly, for a period of two years after leaving the employment, although in restraint of trade, is so limited as to time and place as to violate no rule of public policy.</p> <p>3. Same—Injunction,</p> <p>Under the circumstances, however, it is not an abuse of discretion for the court to modify an injunction pendente lite in an action to enforce such covenant so as to “ permit the defendant to purchase soap from manufacturers and sell the same.”</p>

<p>Appeal by plaintiff from an order declining to grant a re-argument and denying a motion for an injunction.</p>

<p>Discovery—Books akd papers.</p> <p>An application for a discovery of books and papers is one addressed to the discretion of the court, and where it appears that tlieir production may he enforced by a ¡subposna duces tecum in ample time for the purposes of the party making such application, a denial thereof is not an improper exercise of such discretion.</p>

<p>Injunction—Pendente lite—Appeal.</p> <p>A contested motion for an injunction pendente lite is addressed largely to the discretion of the judge or court, and where there is a doubt as to-plaintiff’s right thereto, an order denying such motion will not be disturbed.</p>

<p>Sheriffs—Default—Indemnitors.</p> <p>Where a judgment by default in an action against a sheriff was not em?tered until eight months after tile commencement of the action, and has been paid and satisfied, the default will not be opened on application of the indemnitors where there is no proof of collusion, or disclosure of the nature of the proposed defense.</p>

<p>Pleading—Amendment.</p> <p>Upon affirmance of a judgment on plaintiff’s appeal, the appellate court stated in the opinion that “if the plaintiffs can show a different state of facts and desire to do so, their remedy is by motion for leave to amend their complaint.” Held, that this meant, provided plaintiffs should acqwiesce in the law as laid down, and move for the vacation of the judgment on terms and for leave to amend, and that such leave would not be granted where no motion to disturb the judgment is made, but an appeal is taken to the court of appeals.</p>

<p>Appeal—Case.</p> <p>In a case where there has been a reference to inquire and report a formal case and exceptions showing the proceedings before the referee is wholly unnecessary for the protection of the appellant’s rights.</p>

<p>1. Decedents’ estates—Proof of claim.</p> <p>Public policy requires that claims against the estates of dead men should be established by very satisfactory evidence.</p> <p>2. Same—Mortgage. ■</p> <p>Claimant held a mortgage, payable on demand, against the real estate of the decedent, which he sold. She satisfied the mortgage a short time before the sale, and afterwards was known to have a check for the amount thereof, which she did not produce, but claimed that she gave it to the executor, who denied having received it. No proof was given as to the consideration for the mortgage, and it appeared that while the claimant frequently requested the executor to make advances upon her' legacy under the will, she never requested any payment upon her claim. Held, .that there was no sufficient proof of the claim; that the balance of probabilities was that if the mortgage and check ever had any real foundation as securities for money to be paid, they were discharged in some way in the lifetime of the decedent.</p>

The plaintiff alleges in his complaint that prior to the 26th day of December, 1888, he owned and possessed certain bonds and stocks of telegraph companies, for convenience called telegraph properties, and that at the-time an agreement was entered into between him and the defendants, whereby they agreed to purchase the telegraph properties and pay therefor the sum of $100,000, upon the assignment and delivery to them by him of such properties; that he thereafter assigned and…

<p>Replevin—Declaration op ownership—Recovery on obligation to SECURE WHICH IT WAS GIVEN.</p> <p>After the cleath of testator a paper was found in his safe which stated that he had $29,000 in certain railroad bonds, $10,000 of which belonged to plaintiff “for covering a memorandum or note for the same sum subscribed by me.” In an action to recover said bonds no note or other memorandum was produced, except a certificate of deposit for $10,000, upon which plaintiff had and recovered judgment. The evidence as to whether there was any note of that amount was very unsatisfactory. Ileld, that a direction of verdict for plaintiff was error.</p>