Volume 57 — New York Supreme Court Reports

The appellant was indicted, jointly with Stephen Adwin, John McKibben and Dennis Reardon, upon a charge that he did, on the 18th day of July, 1886, at the city of Rochester, in and upon one Sophia Kaisar, violently and feloniously made an assault, and her, the said Sophia Kaisar, then and there, against her will and without her consent, and by forcibly overcoming her resistance, feloniously and forcibly did ravish, carnally know and have sexual intercourse.

The action was brought to recover for materials furnished and work performed in the construction of a hotel building for the defendant. The defendant alleged that the materials were furnished and the work done under a contract which the plaintiff failed to perform, and that, as a consequence thereof, he had sustained damages to the extent of $1,000, for which he demanded judgment.

<p>Appointments to office, in the city of New York, of persons honorably discharged after service in the a/i'my and navy during the wwi' — chap. 410 of 1884; chap. 29 of 1886 — sec 271 of chap. 410 of 1882.</p> <p>The provisions of section 4 of chapter 410 of the Laws of 1884, as amended by section 1 of chapter 29 of the Laws of 1886, relating- to the appointment to office of persons honorably discharged from service in the army or navy of the United States in the late war, are confined and limited to app ointments as distinguished from promotions</p> <p>Such provisions are not applicable to xiromotions of officers and members of the police force of the city of New York, which, under the provisions of section 271 of chapter 410 of the Laws of 1882, are to be determined upon the grounds of meritorious police service and superior capacity.</p>

It appears, by the relator’s petition, and the exhibits annexed thereto, that, at the time the writ of habeas corpus was issued, he Was in the custody of the sheriff of the city and county of New York, by virtue of an order made by Mr. Justice Barnard at a Special Term of the Supreme Court, at Poughkeepsie, on July 16; 1887, in an action brought by Thomas M. King and others against Reon Barnes, the relator, and others..

<p>Executory contract of sale by letters — when held to create a binding contract — no action will lie on a contract to deliver a specific quantity of property until the whole is delivered.</p> <p>In an action, brought to recover for the price of 10,000 blue Welsh fire brick, with interest thereon, it appeared that the contract was made by correspondence, the proposal.to purchase the brick being made by the defendant in a letter, dated February 20, 1886, addressed to S. L. Merchant & Oo., the plaintiff’s assignor, stating, “I will take ten thousand blue Welsh fire brick, at twenty-four dollars per one thousand, upon the opening of navigation on the Hudson. Let me know my order is accepted and oblige.” To which Merchant & Co. replied, by a letter of February twenty-third, “We are much obliged for your order of February twentieth for ten thousand blue Welsh fire brick, at twenty-four dollars per thousand, on dock at New York city, upon opening of navigation. We will execute the'order,” and, added to this reply, an inquiry when navigation opened on the Rondout canal; to which the defendant replied, “ Would say that the Rondout canal will open on or about the first of April.”</p> <p>The defendant contended that the statement in the reply of Merchant & Co., to his proposal that the brick should be delivered on the dock in.New York city,' created a different proposal, instead of an unqualified acceptance of that made by Mm, and required acceptance by Mm to make it a binding contract. .</p> <p>Meld, that, as these parties were engaged in the business, and understood the source from which the brick would be obtained, it was to be inferred that they knew they would be unladen upon the dock in the city of New York, in performance of the proposal made by the defendant, even if no reference had been made to that effect by the answer of Merchant & Co.; and that the reply of the defendant to the answer of Merchant & Co. also inf eren tially disclosed that to have been his understanding of the proposal which was made.</p> <p>That this correspondence was such as to create a binding contract on the part of the defendant to receive and pay for the brick on their arrival at the port of New York, and their delivery upon the wharf on the opening of navigation on the Hudson.</p> <p>After the arrival of the steamer and the unlading of the brick upon the wharf notice was given by Merchant to the defendant, of their arrival, as being 10,000 brick, and he was requested to look after them. He having failed to do so the brick, after remaining upon the wharf for five or six days, were placed in a warehouse, subject to the storage of forty cents a hundred per month. At the time when the brick were unladen upon the wharf they were fourteen in number short of the contract quantity; and in the warehouse receipt, which was given on the sixth of April, when, they were taken in store, it is stated that about 100 of the bricks were broken. When these bricks were broken does not appear otherwise than by inference from the evidence,</p> <p>Held, that, as under the contract, the brick were to be imported by Merchant &Co., they were at their risk until their delivery to the defendant upon the wharf; and as these bricks were broken either when they were laden upon the steamer, or during their carriage or in the process of unlading them, that risk and loss was upon Merchant & Co. and not upon the defendant.</p> <p>That, as they were short in number and broken in this manner, the defendant was not obliged to accept them, and that this action for the recovery of the purchase-price of the brick could not be maintained.</p> <p>A delivery order was obtained for the brick, which was stated to have been indorsed and sent to the defendant when the goods were entered at the custom-house,</p> <p>ELeld, that, as the order, with a bill, which had been rendered for this brick, dated April first, was returned soon after that date to Merchant, there was no acceptance of the brick, as there might have been, if the order had been retained by the defendant.</p>

<p>Appeal from a judgment, entered in Saratoga county January 30, 1888, in favor of the plaintiff in an action for libel, tried before the court and a jury at tlie Saratoga Circuit.</p>

The South Brooklyn Railroad and Terminal Company haying surveyed the line or route of its proposed road, and made and filed a map thereof by which such route or line was designated, together with a profile of the same showing the land necessary and proposed to be taken therefor, and having acquired and owning the complete right of way, as shown by said map, from its westerly terminus at the bay of New York through and to the line between the city of Brooklyn and the town of…

<p>Application for an alter native writ of mandamus ■ — must be made to a Special Term held, in the county where the issue of foot is triable — Code of Civil Procedure, secs. 2068, 2084 — duty of the comptroller of the city of New York to pay the quota of the taxes required to be paid by the city and county of New York under chapter 410 of 1888 — the city of New York should not be made a pem-ty to the proceeding— mandamus is the proper remedy if the comptroller refuses to make the payment.</p> <p>In a proceeding, instituted by tlie attorney-general to obtain a peremptory writ of mandamus directed to tlie comptroller of tlie city of New York, it appeared that tlie amount of tlie State taxes to be levied upon tlie city and county of New York for tlie current fiscal year was tlie sum of $4,051,487.23, which, amount the comptroller of the said city paid into the State treasury, less $366,581.01, which sum he claimed to be in excess of said city’s proper and legal portion of the State tax and refused to pay. Sections 2068 of the Code of Civil Procedure provides that, except where special provision is otherwise made, a writ of mandamms can only be granted at a Special Term, held within the judicial district embracing the county wherein an issue of fact, joined upon an alternative writ of mandamus, is triable; and section 2084, that such an issue is triable in tlie county wherein it is alleged in the writ that the material facts took place.</p> <p>Held, that, as in order to entitle the applicant to a writ in this case it was necessary to establish a lawful equalization of the valuations of the respective counties of the State by the State board of equalization, the filing of the statement or certificate of such equalization by the said board of equalization, the notification of the proper officers in the respective counties of the valuation taxed by the said board and the non-payment of the tax into the treasury of the State; that these several acts constituted the material facts in this proceeding, and as they were actually or constructively performed in the city of Albany the motion was properly made in the third judicial district.</p> <p>Section 158 of the consolidation act (chap. 410 of 1882) provides that, “for tlie purpose of enabling the city and county _ of New York to make payment of the quota of State taxes, which may be imposed upon and chargeable to the said city and county, at the same time or times that other counties of this Stale are or may be required to make payment by law, * * * the comptroller of said city is hereby authorized and required, unless the money for the payment of the same shall have been otherwise provided, to issue revenue bonds for such amounts as may from time to time become necessary to meet such quota of the State taxes, * * * and from the proceeds thereof to pay to the State treasurer the amount of taxes which the comptroller of tlie State shall have apportioned according to law, and which may be required to be paid, in pursuance of such apportionment, to the State by the city and county of New York.”</p> <p>Held, that as, on the first day of May of the current year, it was the statutory duty ef the comptroller to pay the quota of the State taxes imposed upon the city and county of New York, if any were due and payable, and the mayor, aldermen and commonalty of the city of New York had no duty to perform in respect to such payment, a motion to permit the mayor, aldermen and commonalty of tlie city of New York to intervene as a party defendant for the purpose of arguing a preliminary objection to the jurisdiction of the court, or of defending on the merits, should be denied.</p> <p>That it was not necessary, for the protection of the rights and interests of the city and county of New York,that it shouldbe made aparty, as, by section 215 of the consolidation act, it is made the duty of the counsel of the corporation to act as counsel to all of the departments and offices of the city government.</p> <p>That mandamus was-the proper remedy.</p> <p>That, in this case, the peremptory writ should be denied and an alternative writ granted, as the answering affidavit on the part of the respondent denied each material allegation in the moving affidavit</p>

<p> Under the Code of Oivil Procedure surrogates cannot issue letters upon the estate of a person civilly dead; </p> <p>Upon an appeal from an order of the surrogate of Schenectady county, denying an application for letters of administration, it appeared that, in November, 1887, Edward Zeph, who was an inhabitant of Schenectady county, was indicted, tried and convicted of the crime of murder in the second degree and sentenced to the State prison for life, and is now in prison under the said sentence.</p> <p>Eidel Zeph, the only brother of said convicted person, having applied to the surrogate for letters of administration upon the estate of the said prisoner, the application was denied by the surrogate, upon the ground that he possessed no jurisdiction to grant such letters as the said Edward Zeph was still living.</p> <p>Reid, that the. decision of the surrogate was correct.</p> <p>That the contention of the appellant that, by forcé of such conviction and judgment thereon, the said Edward Zeph became and is civilly dead, and that his estate becomes the subject of administration, the same as though he were actually dead, could not be sustained as the provisions of the Code of Civil Procedure, from which surrogates derive their authority to grant letters of administration, have no application to a case of a civil death, but apply only to cases of actual • death.</p> <p>That the word “decedent,” as used in sections 2660, 2661, 2663, and 2665 of the Code of Civil Procedure, was intended by the law-makers to be understood and applied in the usual and ordinary sense of that term, as signifying one who has departed from this life, one who has died.</p>