Volume 56 — Sickels

<p>The court has no authority to impose as a condition of granting an order to set aside an execution against the person, unlawfully issued, that defendant shall stipulate not to sue for damages for an arrest under the unlawful process; nor does the fact that the order awards costs, authorize the condition.</p> <p>It seems that if the condition be attached, to the award of costs only, it would be proper.</p> <p>Where the order imposes such a condition, defendant has the right to appeal from that portion thereof, so long as he has not availed himself of the portion awarding costs; it is not necessary to appeal from the whole order.</p> <p>The complaint in this action alleged in substance that plaintiff, having in his possession certain property pledged to him as security for a debt, delivered the same to the defendant under an agreement between the parties and the pledgor, that defendant should receive the property, sell the same, and out of the proceeds pay plaintiff’s claim; that defendant sold the property and has in his possession sufficient of the avails to pay plaintiff’s debt, but refuses so to do. Held, that the action was ex contractu and no order of arrest having been issued therein a judgment in plaintiff's favor did not authorize an execution against the person. (Code of Civ. Pro., § 549.)</p>

The affidavit upon which the attachment was issued alleged “ that a cause of action exists in favor of said plaintiffs against said defendants, for which said action is commenced, or is about to be, and the amount of plaintiffs’ claim in said action is, to-wit: $10,000 with interest from the 1st day óf January, 1883, over and above all discounts and set-offs, and that the ground of said claim and cause of action is as follows: ” The grounds stated were, in substance, that…

<p>Motion to recall and amend remittitur etc.</p> <p>The case is reported in 98 N. Y. 480.</p>

Motion to dismiss appeal on the grounds that the notice of appeal is defective and was not served in time. The material facts are stated in the opinion.

This action was brought to recover a balance alleged to be due for goods sold and delivered to defendants’ firm. Defendants set up, as a counter-claim, damages for an alleged failure on the part of plaintiff to perform a contract for the sale and delivery of other goods.

This action was brought to recover damages alleged to have been sustained by reason of the unlawful erection, by defendant, of a pier in front of plaintiff’s premises in the city of Brooklyn, and also to compel defendant to surrender said pier to plaintiff, and account for wharfage received.

This action was brought to recover the amount of various deposits made by plaintiff in defendant’s bank, and entered in a pass-book delivered to him. The defense was that the moneys deposited had been paid out by the bank on presentation of the pass-book to a third person whom the proof showed was a brother of plaintiff, who had no authority from plaintiff to draw the money, and who had unlawfully possessed himself of the pass-book.

This action was brought to recover for the use of a pier in the city of Brooklyn belonging to plaintiffs. The material facts are stated in the opinion. The legislature having limited the power of the common council to create a debt or obligation against the city to a particular way, no recovery founded upon any action, of the common council can he had, unless the prescribed way has been followed.

Appeal by defendants, Walter F. and Frank J. Kilpatrick, from a judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made November 9,1885, which affirmed a judgment in favor of plaintiff, entered upon a verdict.

This was an action of ejectment, brought to recover possession of a triangular piece of land containing about one acre, situate in Sullivan county. The answer set up a title to the premises in defendant Adelaide Olcott. On the trial defendants claimed, among other things, that plaintiff was estopped by reason of a judgment in a partition suit, also a justice’s court judgment. The material facts are stated in the head-note and in the opinion.

Appeals from two orders of the General Term of the Superior Court of the city of New York, made November 6, 1885, one of which affirmed an order of Special Term confirming the report of a referee of a sale under the judgment herein, and requiring plaintiff William Scholle and defendant Jacob Scholle to complete the several purchases made by them on the sale; the other affirmed an order of Special Term which denied a motion on the part of said parties to be released from…

, Manhattan street in the city of New York. The facts are sufficiently stated in the opinion. The power to initiate a local improvement and assess can be conferred only by ordinance of the council. (Laws of 1813, chap. 86, § 176; Laws of 1870, chap. 137, § 12; Matter of Deering, 85 N. Y. 1.) The failure to advertise for proposals and contract for the work was a substantial error, vitiating the assessment.

This action was against defendants as members of the firm of J. L. Alberger & Co., upon indorsements in the name of that firm upon notes made by S. W. Mash, payable to the order of the firm, which indorsements were made by one of the members of the firm. The material facts are stated in the opinion. Plaintiff, not being a bona fide holder without notice, cannot invoke the presumption that the paper was issued within the scope of the partnership business.

This action was brought to recover damages for an alleged breach of contract, the substance of which as well as the material facts are set forth in the opinion. The plaintiffs are entitled to recover as damages the value of their contract; that is, what such a privilege as was conferred by their contract, under all the circumstances, was fairly worth.

(Reported below, 31 Hun, 65.) This action was brought to foreclose a mortgage. Said defendants were judgment creditors of the mortgagor and defen dedon the ground that the mortgage was fraudulent and void as against the creditors of said mortgagor. The facts so far .as material are .stated in the opinion.

This was an action of ejectment. The material facts are stated in the opinion. Upon the evidence the jury might legally have concluded, either that the conveyances by which the trustee got title were made for the purpose of swindling the estate, or that the object of such conveyances was to pay the claim made against the estate by him and give him in satisfaction the property in question.

This action was brought by plaintiff as receiver of the joint property of defendants Osmer M. and William G. Westover, who formerly composed the firm of O. M. & W. G. Westover, and of the separate property of Osmer M. Westover, j¡o set aside as fraudulent a sale of his interest in the partnership property, made by William G. to Osmer M. Westover on the retirement of the former from the business; also to set aside two chattel mortgages covering the property thereafter…

. These were cross-appeals from different portions of a judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 13, 1883, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.

<p>Except where substantial rights of other parties have accrued and injustice will be done to them by permitting it, a party has a right to discontinue an action or proceeding, and his reasons for so doing are of no concern to the court.</p> <p>A refusal of leave to discontinue, therefore, where nothing appears to show that it will injuriously affect the rights or interests of the adverse party, ■ is not within the discretion of the court, and is error.</p> <p>Where an administrator of the estate of a deceased lunatic commenced proceedings by petition in the Court of Common Pleas of the city of New York, to compel the committee of the lunatic to* account and to deliver over the property remaining, and thereafter entered an ex parte order of discontinuance, the costs to be paid by the administrator, which order after tender of costs, was vacated by the court, and thereupon the administrator moved for leave to discontinue which was denied, the only facts shown being that after the entry of the first order the administrator had commenced an action in the Supreme Court to settle the accounts. Held, that there was no just basis for the refusal of leave upon which any discretion was called into exercise or could operate; and that the denial of the motion was error.</p>

» The substance of the complaint is set forth in the opinion. The complaint should be liberally construed. (Code of Civ. Pro., § 519; Prouty v. Whipple, 10 Week. Dig. 387.) If the facts set forth therein present any cause of action, entitling the plaintiff to any relief, legal or equitable, a demurrer theretd for insufficiency must be overruled. (Marie v. Garrison, 83 N. Y. 23; Price v. Brown, 10 Abb.

<p>The duty imposed upon manufacturing corporations by the General Manufacturing Act (§ 12, chap. 40, Laws 1848), of making and filing an annual report is a corporate duty, to be discharged by making a report, signed by the president and a majority of the trustees ; it is not a duty cast upon the trustees as such, or in their individual capacity.</p> <p>In an action against trustees of a manufacturing corporation to recover a debt of the corporation because of a failure to make and file a report for the year 1877, four of the defendants joined in an answer, one count of which averred that said defendants failed to make a report for the year 1873, and for each year thereafter, and that more than three years had elapsed since any penalty or claim arose against them in favor of plaintiff. The number of trustees of the corporation was not alleged. On demurrer to this count, held, that it was defective, in that it did not aver that defendants were trustees in 1873, or thereafter, previous to 1877; nor did it allege any default by the corporation prior to 1877, as if it was to he assumed that defendants were trustees, still it did not appear and could not be assumed that they constituted a majority of the board, and the corporate duty might have been performed without their joining in the report.</p> <p>Where a debt against such a corporation owned by a trustee thereof is assigned by him absolutely for value, the assignee, on a default in making and filing a report subsequently occurring, may proceed against trustees to recover the debt, although the assignor continues to be a trustee up to the time of the default.</p>

<p>It seems that where a servant, employed in the performance of ordinary labor, in which no machinery is used or materials furnished requiring great skill and care, is injured by a defective instrument or tool furnished by the master, of the defects in which the servant has full knowledge and comprehension, he cannot hold the master responsible.</p> <p>Plaintiff, a servant in the defendants' employ, was injured by the slipping of a ladder which he was using in lighting lamps in front of defendants' building. The ladder was a new one which, by defendants’ permission, plaintiff himself had ordered made, and which he had used in safety for over six weeks. After the ladder was delivered he told defendants’ superintendent that it ought to be hooked and spiked, or there would be an accident. The superintendent promised to have this done. This promise was repeated several times, but was not performed. The accident occurred upon a stormy night, sleet, snow and rain falling, and the wind blowing. Plaintiff bad lighted safely seven lamps, changing the position of the ladder each time ; when lighting the eighth the ladder slipped. In an action to recover damages, held, that these facts did not j ustii'y a recovery, as it failed to prove that defendants had not furnished a proper ladder.</p> <p>A master does not owe to his servant the duty of furnishing the best known or conceivable appliances ; he is simply required to furnish such as are reasonably safe and suitable.</p>

(Reported below, 18 J. & S. 187.) The nature of the action and the material facts are stated in the opinion. Assuming that plaintiff now proves a hiring for half the profits as compensation, the former judgment is a bar; evidence of plaintiff in this suit shows that if there were any such contract as he claims, it was a contract of partnership and not one of hiring, and the former judgment is then unquestionably a bar. (Coll. on Part. [5th Am. ed.], § 44, note 2; 7 Jarm.

This action was brought to restrain defendant from entering upon a strip of land to which plaintiff claimed title, and from tearing down fences… Held: is held in fee, and Hostrand retained no reversionary interest therein, (Armstrong v. Park Com., 45 N. Y. 234; Heath v. Barmore, 50 id. 302; McDonald v. Mayor, etc., 68 id. 23; Starin v. Town of Genoa, 23 id. 449; Donovan v. Mayor, etc., 33 id. 291.) The new deeds plaintiff relies on were given while there was a clear adverse…

• This action was brought to recover damages for injuries sustained by plaintiff, who was struck by an engine attached to a train on defendant’s road, as she was crossing its tracks at a highway crossing. The material facts are stated in the opinion. The court erred in allowing testimony, as to defendant’s omission to sound the whistle and bell, from witnesses who were not in a position to have observed the signals.

(Mem. of decision below, 29 Hun, 119.) The nature of the action and the material facts are stated in the opinion. The defendant having title duly authenticated by written evidence, and being in possession of the lands in suit thereunder, as matter of law, cannot be ejected unless the plaintiff makes a clear case showing the execution and delivery of a prior deed duly acknowledged.

(Deported below, 38 Hun, 122.) This action was brought to recover the amount of certain interest coupons attached to bonds alleged in the complaint to have been issued by defendant, a municipal corporation.

(Reported below, 31 Hun, 260.) The nature of the action and the material facts are stated in the opinion. The defendants’ letter of March 7, 1878, was not an unconditional promise to accept a bill before it is drawn, and the trial court erred in holding it to be such.

(Reported below, 18 J. & S. 137.) This action was upon an open policy of marine insurance issued by defendant and others, known as the “ United States Lloyds.” As issued, it contained this clause: “ The United States Lloyds, liable only for loss of animal or animals, caused directly by stranding, sinking, burning or collision.” Afterward this was changed by inserting after the words “ directly by,” the words “ a sea.” The insurance in question was effected by this…

(Reported below, 18 J. & S. 41.) This action was brought to recover the contract price for four hundred cases of sardines. The following facts appeared. The plaintiffs and defendants were wholesale dealers in sardines.

(Reported below, 10 Daly, 149.) This action was brought by plaintiff as assignee for the benefit of the creditors of Clinton H. Smith, to recover for the alleged wrongful taking and conversion of property, part of the assigned estate. The complaint was dismissed by the referee on the ground that the assignment was not duly acknowledged.

<p>Appeal from order of the G-eneral Term of the Supreme Court in the second judicial department, made February 12, 1884, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term. (Reported below, 32 Hun, 35.)</p> <p>This action was brought to recover damages for an alleged breach of a contract by defendant to sell and convey to plaintiff certain premises.</p> <p>Defendant acquired title under a foreclosure sale; it was ready and willing to convey, but plaintiff declined to accept a conveyance, claiming defendant’s title was defective, in that the summons in the foreclosure suit was served by publication, and that the affidavit upon which the order for such service was made was insufficient to give the court jurisdiction.</p> <p>Even statements capable of being construed as allegations of fact would be sufficient for jurisdiction. (Belmont v. Comen, 82 N. Y. 256.) If there was any evidence of an attempt to find and serve it was enough to confer jurisdiction. (Staples v. Fairchild, 3 N. Y. 41; Peck v. Cook, 41 Barb. 549; Van Wyck v. Hardy, 39 How. Pr. 392; Roche v. Ward, 17 id. 416; Titus v. Relyea, id. 265; Barnard v. Heydrick, 49 Barb. 62; Steinle v. Bell, 12 Abb. Pr. 171; Howe Machine Co. v. Pettibone, 74 N. Y. 68; Wortman v. Wortman, 17 Abb. Pr. 66.) The recital in the order that the defendant cannot after due diligence be found is prima facie evidence of the existence of such fact. (Bosworth v. Vandewalker, 53 N. Y. 597; Maples v. Mackey, 89 id. 146.)</p> <p>Yon-residence of a defendant does not dispense with effort to find within the State. (Carlton v. Carlton, 85 N. Y. 313; Code of Procedure, § 135; Howe Machine Co. v. Pettibone, 74 N. Y. 71.) The interpretation of the language of a deposition is a matter of law. (Bixby v. Smith, 3 Hun, 63; Peck v. Cook, 41 Barb. 549; Long v. Rogers, 19 Ala. 321, 331; Carpenter v. People, 8 Barb. 610; Hill v. London G. L. Co., 3 II. & N. 920.)</p>

This action was brought by plaintiff as a tax payer of the town of Attica, to have certain bonds issued by said town and held by the bank, defendant, adjudged to be void, and to require the said bank to surrender up the same to be canceled, and to restrain said bank from selling or disposing of said bonds, and the defendant Farnham, supervisor of said town, from taking any proceedings to levy a tax to pay interest on said bonds.

• (Reported below, 17 J. & S. 416.) This action was brought to recover damages for the alleged conversion or destruction of a policy of insurance. The material facts are stated in the opinion. The policy was absolutely canceled or destroyed by the defendant, and the act constituted a conversion of the policy for which the defendant is liable in this action.

<p>The General Assignment Act of 1877 (Chap. 466, Laws of 1877) does not include or apply to a specific assignment by a debtor for the benefit of one or a portion of his creditors, and such an assignment is not void because not executed in compliance with the provisions of said act.</p> <p>The provision of the Revised Statutes (1 R. S. 678, § 55), providing for express trusts to sell lands for the benefit of creditors, does not prohibit the grantee of an insolvent debtor from executing a mortgage to secure the payment of specific debts of the grantor in pursuance of a prior oral understanding entered into at the time of the execution of the conveyance.</p> <p>A mortgage so executed is not rendered void by a provision therein requiring any surplus arising on foreclosure sale to be paid over to the mortgagor.</p> <p>A member of a firm may appropriate his individual property to the payment of the firm debts, and where the firm has made a general assignment for the benefit of its creditors a conveyance by -one of its members of his individual property to the assignee, to be disposed of and applied in accordance with the terms of the assignment to the payment of the partnership debts, is not per se fraudulent or unlawful and void. It is not essential that such a conveyance should be executed in accordance with the requirement of the General Assignment Act.</p>

<p>Defendants contracted to sell and deliver to plaintiffs one hundred and seventy-five cases Connecticut tobacco, guaranteed “ to be like samples. ” On receipt of bill plaintiffs paid for the purchase, by giving their promissory note for the amount. The tobacco delivered proved to be Massachusetts tobacco, which was of less value than the Connecticut ; some of the cases were also inferior to the samples. Defendants were notified of the defects, and requested to return the note and take back the tobacco, but refused so to do ; it was then, upon notice to defendants, sold at auction, in one lump. In an action to recover damages for breach of the contract, held, that plaintiffs’ sale of the tobacco in a lump did not defeat their right to recover; that the measure of damages was the difference in value of the tobacco as warranted, and that actually delivered ; and, to ascertain the latter, in the absence of other testimony, the amount received at the auction sale was properly resorted to.</p> <p>Also held, the fact that a note was given for the purchase-price, which it did not appear had been paid, did not defeat a recovery; that, under the circumstances, plaintiffs’ liability on the note must be deemed the equivalent for cash.</p>

This action was brought to recover damages for an alleged breach of warranty in a contract of sale. The facts are stated in the case as follows : The defendants, at West Troy, 1ST. Y., on the 28th day of February, 1880, orally sold to the plaintiffs about eight hundred tons of ice, which was being cut at Round pond, near Glens Falls, hf. Y., and agreed to place the same in a house which they warranted should be a good, substantial house, which should stand a year.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. Plaintiff was a printer and embosser in defendant’s employ, and the negligence complained of was the omission to furnish suitable and safe machinery for the work. The material facts are stated in the opinion. The defendant was not required to provide additional apparatus for greater safety.

<p>While the legislature may abolish an office, diminish the salary or change1 the mode of compensation during the term of an incumbent, subject only to constitutional restrictions, yet within these limits the right to an office carries with it the right to the emoluments, and an officer unlawfully dispossessed of his office may, upon his reinstatement therein, maintain an action against an intruder, to recover the damages resulting from the intrusion ; as a general rule, the salary or fees of the office received by the intruder are the measure of damages.</p> <p>Plaintiff was duly appointed police commissioner of the city of New York ; he duly qualified and entered upon .the performance of the duties of the office. Subsequently he was unlawfully removed by the mayor, and defendant appointed for the unexpired term. The latter, on presentation of his certificate of appointment, was recognized by the board of police commissioners, and assumed the duties of the office against the protests of plaintiff, who claimed the appointment was unauthorized. The proceedings of the mayor in removing plaintiff were reversed and annulled on certiora/ri, and thereupon he was again officially recognized by the board, and resumed the duties of his office ; during the time of his exclusion he was ready and willing to perform such duties. Defendant drew the salary of the office during the time he performed its duties. Held, that an action to recover the amount so received was maintainable ; and that the record in the certiorari proceedings was properly admitted ' in evidence against the defendant on the trial of the action.</p> <p>As to whether in such case the record, in the absence of collusion or fraud, is conclusive, quaere.</p> <p>The distinction between this case and one where the officer de jure has not been reinstated pointed out.</p> <p>It seems in the latter case the remedy of the officer is by action in the nature of a quo warranta ; but such an action will not lie when the intruder has voluntarily surrendered the office.</p> <p>An illegal exercise of the power of appointment to fill an assumed vacancy confers no additional protection upon the appointee because coupled with the fact of a prior summary removal of the rightful incumbent by the officer who made the appointment, in the exercise of a quasi judicial discretion.</p> <p>The doctrine which protects rights acquired on the faith of a judgment, notwithstanding its subsequent reversal, is not applicable to such a case.</p>

This was an action in the nature of a quo warranta, to try the title to the office of mayor of the city of Albany. The complaint alleged that the relator was duly elected to the office, and that defendant had illegally intruded into and usurped the same. The relief asked was that the relator be adjudged entitled to' the office, and that a fine of $2,000 be imposed upon the defendant. There was no allegation in the complaint averring or claiming damages.

This action was brought to recover damages for injuries alleged to have been caused by defendants’ negligence. The material facts are stated in the opinion. The court erred in dismissing the complaint; the case should have been submitted to the jury.

<p>ip0 maintain an action for use and occupation o'f real property, it is not only necessary for plaintiff to prove title, but that the conventional relation of landlord and tenant existed between the parties.</p> <p>While it is not essential to show that this relation was created by written instrument or express agreement, there must be proof of some circumstances authorizing an inference that the parties intended to assume that relationship toward each other.</p> <p>A vendor of real estate who remains in possession of part of the property after the conveyance does not thereby become tenant to the purchaser, and is not liable for use and occupation.</p> <p>It seems the remedy of the purchaser, if the vendor refuses to surrender the possession, is by action of ejectment alone, in which he may recover damages by way of mesne profits for the unlawful withholding of possession.</p> <p>In an action for use and occupation it appeared that plaintiff purchased of defendant the premises in question, consisting of a hat factory and machinery therein. After the conveyance defendant allowed certain stock used in the business, which was on the premises at the ti me of the sale, to remain there for .about two months after the conveyance. Plaintiff demanded rent, but this defendant refused to pay, offering to pay for storage ; this was about a month before he removed the stock. Held, that the evidence failed to show the existence of the relation of landlord and tenant; and that the action was not maintainable.</p>

(Reported below, 18 J. & S. 371.) This action was brought to recover back money alleged to have been paid and allowed by mistake on an adjustment of accounts between the parties. The material facts are stated in the opinion. The final payment made by the plaintiffs was not made upon an- account stated but was an accord and satisfaction.

This action was brought to recover damages in the nature of demurrage. Plaintiff was the owner of a canal boat, the “ Irwin Scholl,” upon which was shipped a cargo of coal, to be transported to Hudson, H. Y., of which cargo defendant was the' owner and consignee. By the bill of lading, plaintiff was to carry the coal and discharge it at the port of destination.