Volume 7 — New York Miscellaneous Reports

<p>Motion to dismiss complaint.</p>

<p>A complaint in a creditor’s action to set aside mortgages made by and judgments recovered against the corporation debtor, which proceeds on the theory that the mortgages are void because made in contemplation of insolvency and without, the written consent of a majority of the stockholders and that the judgments were procured by fraud and collusion to which the defendant mortgagee was not alleged to be a party, contains separate and distinct causes of action upon either of which a recovery might be had against some of the defendants, and a demurrer may be interposed to either of such causes of action although they are both stated in one count.</p> <p>The statutory prohibition against the execution of a mortgage by a manufacturing corporation without the written assent of its stockholders was designed for the protection of the stockholders and not the creditors of the corporation, and if the stockholders elect to treat amortgage given without such consent as valid a creditor cannot take advantage of the omission of the statutory prerequisite.</p>

Motions by the relators to strike from the returns to the writs of certiorari in these matters certain statements claimed to be improperly inserted therein,

Appeal by defendants from order requiring them to furnish a bill of particulars of nonperformance by plaintiff of the contract he sues upon.

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

<p>In an action for the keep and training of a colt owned by defendant, where the latter claimed that plaintiff further agreed to enter and start the colt in races and had violated his agreement, and the proof of performance rested solely on plain tiff ¡s testimony, the court allowed proof tobe given as to plaintiff’s general reputation as a trainer of thoroughbred horses and as to his honesty in that respect, although no attack upon his reputation or honesty had been made by defendant. Held, that the admission of such evidence was reversible error.</p>

<p>Appeal by plaintiff from judgment entered after the dismissal of the complaint at trial term.</p>

<p>Appeal from judgment entered on verdict of jury in favor of defendant.</p>

<p>Appeal by defendant from judgment entered on verdict of jury in favor of the plaintiffs.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

<p>' Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

<p>In an action brought by an assignee a counterclaim against the assignor may be allowed up to the amount claimed in the complaint, but not beyond it.</p> <p>In an action for goods sold by plaintiff’s assignor to the defendant, the latter set up a counterclaim for the amount of discounts on sales made to it by said assignor under an agreement with his general salesman, the amount of which discounts exceeded the claim in suit. The making of the agreement was proved by testimony of the salesman and defendant’s president, and was uncontradicted. Held, that such agreement was binding, and in law was the act of the principal, and that the discounts were properly allowable against the claim in suit; but that an affirmative judgment in favor of the defendant for the excess of discounts was error, plaintiff being an assignee.</p>

<p>The defense of the Statute of Frauds is not available Unless specifically pleaded.</p> <p>A provision in a contract of sale requiring prompt shipment by steamer in a certain month places the vendors only under the1 duty to ship as early in the month as the reasonableness of the trade and shipping facilities will permit, and whether they did so in a particular case is for the jury to determine.</p> <p>In such a case proof that the goods were placed, on the twenty-ninth of the month, on a vessel which sailed two days later is sufficient to justify a finding in favor of the vendors on that question.</p>

<p>Appeal by defendant from order striking out. its answer as sham.</p>

<p>Appeal from judgment entered on a decision at Special Term, sustaining the demurrer of plaintiffs to fhe fifth paragraph of defendant’s amended answer.</p>

<p>The court has power, in its discretion, on the application of a plaintiff, to set aside a judgment entered in his favor.</p> <p>An order granting such an application is not an abuse of discretion where it appears that the defendant has executed an assignment for. creditors, and that such judgment is a bar to an action in another state in which defendant’s property in such state has been attached.</p>

<p>Plaintiffs filed a mechanic’s lien against property owned by defendant, which stated that the person to whom the materials were furnished was a firm of contractors named. Thereafter defendant agreed to pay them by note if they would take off the lien, which was done, but defendant failed and refused to give the note, and the lien was then refiled. In an action brought against defendant one year later, to recover the price of the materials, in which the above facts appeared, held, that by refiling the lien plaintiffs reinstated all the rights which they had released as the consideration for the promise to give the note, and, hence, defendant was not liable, for failure to give said note ; that no liability on his part as vendee of tne materials was shown, and that plaintiffs were properly nonsuited.</p>

<p>Appeal by defendant from judgment entered against Mm on findings by the court.</p>

<p>The complaint in an action alleged that defendant let the west side of a store to plaintiff for a certain business and agreed that the other side should not be rented or used for the sale of the same kind of goods; that he subsequently rented the other side without restriction to one who used it for the sale of the same kind of goods, to plaintiff’s damage; but no special damages were averred. A demurrer to the complaint was overruled, with leave to answer on payment of fifteen dollars costs. Meld, error; that the recovery in such a case could be for nominal damages only, and that the demurrer should have been sustained, with leave to plaintiff to amend by pleading special damages or other material allegations.</p>

<p>In an action by the transferee of a promissory note against the maker, the fact that the plaintiff does business under a firm name in which the words “ & Co.,” are used, when there is in fact no partner, is unavailable as a defense.</p>

<p>Appeal by defendants from judgment on verdict of jury. ’</p>

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

<p>Appeal from judgment of the Special Term in favor of the defendant.</p>

<p>In an action upon promissory notes the indorsers defended on the ground that the notes were accommodation paper and the indorsements were made upon condition that the notes were not to he delivered unless the indorsement of another person was procured, which was not done. Th& notes were drawn and the signatures thereto procured by the counsel for the plaintiff, who was also one of its directors. The evidence as to' the making of the condition was conflicting. Held, that it was the duty of the plaintiff to show, if it could, that such director and counsel was not acting for it in making the alleged agreement as to the conditional indorsement, and that a verdict in favor of the defendants would not he disturbed.</p>

<p>Certiorari to review the proceedings of the respondent in dismissing the relator from the police force of the city of Brooklyn.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict for $2,000, and from order denying motion for a new trial.</p>

<p>In an action for injuries claimed to have been caused by defendant’s negligence, there was evidence tending to show that while plaintiff was riding on the front platform of one of defendant’s cars the driver thereof drove the car against a wagon standing across the track and about to enter a stable, whereby plaintiff was thrown off and injured. Held, that this justified a finding of negligence on the part of defendant.</p> <p>Where the injuries complained of consisted of an injury to plaintiff’s side and a serious injury to his foot, causing loss of sensation and a partial loss of motion, and he was confined thereby to his house for six weeks and rendered unable to do hard work, a verdict for §3,500 is not excessive.</p>

<p>Evidence as to the effect of injuries that will be “ apt to attend a patient,” oras to injuries which “ may become permanent,” is purely speculative, and, therefore, inadmissible.</p> <p>Plaintiff endeavored to board an elevated railroad .car after the gate was closed and was carried some distance before the train could be stopped and her rescue effected. In an action for the injuries sustained thereby the evidence was conflicting as to whether the guard told her to get on, The court excluded questions put to a physician as follows; “From your experience as a physician, what are the principal effects that will be apt to attend a patient who has suffered the injuries you have described,” and “ Can you state, from your experience as a physician, any of the effects which usually attend such injuries as you have testified to, and which are, or may become permanent? ’’ Held, no error; that such questions were vague and speculative</p> <p>Such questions only affect the question of damages, and their exclusion is not prejudicial to the plaintiff where the jury find by their verdict that she was not entitled to recover at all.</p> <p>Where the charge is clear and fully covers the whole ground, the court is not required to charge requests that are simply cumulative.</p>

<p>Appeal from, judgment in favor of the defendants, entered on a nonsuit.</p>

<p>Certiorari to review the determination of the respondent dismissing the relator from the police force of Brooklyn.</p>

The personal property of the relator William L. Mercer was assessed $23,940; the personal property of the relator 'Andrew Gr. Mercer, $38,700, and that of the relator Philip M. ICendig, $11,025.

<p>The owners of an hotel leased the same and the furniture to a tenant at a yearly rent of a fixed sum and such additional contingent sum as should ■equal one-half of the profits; the lease also containing provisions to facilitate and secure knowledge and a collection of the contingent rent. Held, that the landlords take such additional sum, if it arises, not as profits of an enterprise in which they join with the lessee, but as rental compensation, and that the provision in the lease as to such sum did not make them liable as partners to third persons who deal with the lessee.</p>

<p>Upon motion to confirm the report of a referee appointed to hear and determine an action for divorce, the court will not consider the evidence where the decision was against a divorce, as such review is not within the scope of section 1229 of the Code.</p> <p>Where the issues have been fully and fairly tried before a referee to hear and determine, his decision should stand as a guide for the court in rendering judgment, unless some unjust, inadvertent or unwise ruling appears which tended to destroy the safeguards which the court throws around the indissolubility of the marriage tie.</p>

<p>Supreme Court rule 73, in relation to the appointment of a referee in actions for divorce, applies only to cases of default.</p> <p>Section 1012 of the Code, relating to the appointment of a referee in contested divorce cases, was intended to prevent the entry of orders of reference by consent, or without application to the court, and does not prevent the court from designating a referee from the names suggested by counsel.</p> <p>A motion to continue an action for divorce to the next term of court on account of sickness of the plaintiff having been denied, with a suggestion that the case might be tried the following week or be sent to Special Term for trial or to a reference, counsel agreed to refer, and an order containing the name of a referee was presented to the court, who directed the order entered. No objection to the order was made until after the court adjourned, when motion was made by the plaintiff to set it aside on the ground that the referee was selected by consent, in violation of the rules of court. Reid, that, there being no elements of collusion or fraud in the case, the mode of selection of the referee was, at most, an irregularity which could be waived, and that plaintiff waived such irregularity by accepting the benefit of the order postponingithe case over the term and was thereafter estopped from attacking the validity of the order.</p>

<p>Action for partition of lands.</p>

The defendants appealed in the above-entitled condemnation proceeding from three orders: (1) The order entered on November 28, 1893, upon the order to show cause granted by Mr. Justice Andrews, providing for a perpetual stay of all actions and proceedings interfering with plaintiff’s possession of the property, pursuant to section 3379 of the Code of Civil Procedure, except so much of the order as authorizes the plaintiff to continue in possession of the property upon…

<p>Even if the acts of the officers of a railroad company in purchasing for it stock of another railroad are 'ultra vires, the only persons who can object to the transaction are the1 stockholders of the company making the purchase or the People of the state. The stockholders of the company whose stock is so purchased have no interest that will entitle them to object, or to question the title or right of the purchasing corporation.</p> <p>A court of equity cannot interfere on the application of a minority stockholder unless some unlawful act on the part of the majority stockholders tending to injure the rights of the former is shown.</p> <p>There is no principle which prevents a stockholder, whether an individual or another corporation, from purchasing the bonds of a company whose stock he or it owns.</p> <p>The mere fact that a majority stockholder, who is also a creditor, wishes or hopes that the corporation will fail, is no reason why a court of equity should enjoin the creditors from collecting their debts.</p>

Motion by receivers of the defendant corporation to set aside an answer served by the corporation and the judgment entered,-and for leave to serve answer and defend.

<p>A trust cannot be implied from a mere deposit of money in a savings bank in the name of another. To establish a trust it must appear that no power is left in the settlor to revoke it or to defeat its effect by any different disposition of the property.</p> <p>Plaintiff’s father deposited moneys of his -own in a savings batik in her name during her minority, but retained the pass book and subsequently withdrew the moneys and deposited them in a bank subject to his control, ¡«id made further deposits in said bank. He afterwards drew out a large part of the moneys and invested them in bonds and mortgages, to which he attached memoranda stating that they were purchased with money which plaintiff had in the bank and that they were to go to her at his death. He retained possession of these securities and refused to let plaintiff have them during his lifetime, and stated to her and others of the family that she could have them when he died. By his will he gave certain specific devises and bequests and the use of the residue to his wife during her life. Held, that the facts were insufficient to create a trust in plaintiff's favor, as her father never surrendered control of the moneys.</p>

<p>Upon an ex parte application, counsel for the defendant have submitted affidavits verified February 27,1894, made by Hr. Roderick; the original order made by Justice Cullen February nineteenth, which ordered a hearing before him on the twenty-third of February, with a stay of the execution of the judgment until the hearing and decision of the application; a copy of the opinion rendered by him denying the application for a certificate; also, a copy of the indictment and the brief used by counsel on the argument of that motion.</p>

<p>Motion to amend judgment by directing the payment of the costs to the attorney of record of the original relator.</p>

Application by the executors of the estate of Jane 0. Van Schaick, deceased, for instructions from the court in regard to the payment of certain assessments levied by the city of Albany against property of the deceased in her lifetime.

<p>Motion to punish the defendant for contempt of court, for interposing a false verified answer.</p>

<p>Appeal from order granting motion to open default, vacate the judgment and for leave to defend.</p>

<p>In an action upon a promissory note against the maker thereof, the evidence of the defendant tended to show that the note in suit was given as collateral security for a note of one M., which was indorsed hy the defendant, and that subsequent to the maturity of said notes the plaintiff released and discharged M. from all liability. Held, that these facts, if proved, showed that plaintiff, by depriving defendant of his right to subrogation, released him from liability; that if any questions of fact were in dispute they should have been submitted to the jury, and that it was error to direct a verdict for plaintiff.</p>

<p>Appeal from order denying motion to compel plaintiif to receive an answer and notice of trial served on behalf of the defendant Aaron Brooks.</p>

<p>Appeal from judgment in favor of defendant, and from order denying motion for a new trial.</p>

<p>Appeal from judgment entered upon order sustaining demurrer to answer and awarding judgment in favor' of plaintiff.</p>

<p>Appeal from order overruling defendant’s demurrer to the complaint.</p>

<p>A lien is not a counterclaim in an action for tort for the conversion of the property upon which the lien exists; hut constitutes a defense hy way of avoidance,</p> <p>A landlord has no lien upon his tenant’s chattels, unless hy agreement.</p> <p>In an action for conversion of office furniture the answer alleged hy way of counterclaim that defendant let an office to plaintiff; that plaintiff owes him rent, and that the chattels mentioned were permitted to he placed in the office in consideration of the execution hy plaintiff of the lease, and that defendant has a lien on said chattels and is entitled to hold them as security for the payment of said rent. Held, that the . answer did not set up a valid counterclaim.</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from order denying a motion for a new trial.</p>

<p>Where the answer contains no denial of the contract set forth in the complaint as having been made with the defendant, evidence as to the persons with whom plaintiff made the agreement is properly excluded.</p>

<p>Appeal by defendant from judgment entered on verdict of pry-</p>

<p>Defendant sold to plaintiff at a discount his claim against one B. under a contract of sale of land, and delivered to her a deed to said B. in escrow, to be delivered to him on payment of the purchase price. Plaintiff endeavored to find B., but was unable to locate him or ascertain his existence, and defendant finally acknowledged that he had never seen B. and did not know whether he existed, having had the transaction with a lawyer. Plaintiff then offered to return the deed if defendant would deed the land to her, which was refused, and then demanded the money paid, which defendant promised to pay. Held, that the money was obtained of plaintiff either by mistake or fraud; in the former case the Statute of Limitations would only run from the time when the mistake was discovered and a return of the money demanded; in the latter, from the time when plaintiff had actual knowledge of the facts upon which her right to make a demand depended. ,</p>

<p>Where a broker acts for both parties on an exchange of lands, neither of them can complain, nor refuse compensation if it was promised, when fully informed that the broker held the same relation to the adverse dealer.</p>

<p>Appeal by defendant from judgment on verdict.</p>

<p>In an action for personal injuries alleged to have been caused by defendant’s negligence, the evidence on the part of the plaintiff, who was-about six years old, tended to show that the street in which the accident occurred was one in which but few wagons passed; that the plaintiff slipped from the sidewalk into the gutter and was unable to get up ; that defendant’s wagon then turned the corner of the street, some sixty feet distant, and continued to go on until it ran over his head and shoulders ; that the driver sat looking forward ; that the horse was going fast, but that he could have been stopped within twenty feet. Reid, that a motion for nonsuit was properly denied, and that although the driver testified that plaintiff fell behind the horse and just in front of the wheel, a verdict in plaintiff’s favor would not be disturbed.</p>

<p>Application of one San C. Po, a native of Burmah, to be made a citizen of the United States.</p>

<p>Upon appeal from a judgment of a Justice’s Court, where no new trial is demanded, the County Court is limited to an affirmance or reversal of the judgment, except where the defendant failed to appear in the lower court.</p> <p>Where the judgment of reversal in the County Courf was predicated upon or involved the merits, it is an absolute bar to a subsequent action between the same parties on the same cause of action.</p> <p>A judgment of reversal which expressly states that no cause of action was shown against the defendant on the trial, is a judgment on the merits.</p>

<p>Motion by defendants for a new trial on a case and exceptions.</p>

Defendant was charged with selling strong and spirituous liquors, wine, ale and beer, in- quantities of less than five gallons at a time, without a license, at divers times between October 8, 1892, and September 22, 1893, to divers persons.

<p>Motion by plaintiff to amend the complaint.</p>

<p>Motion to sequestrate the property of the defendant and for a receiver.</p>

<p>Motion to confirm the report of a referee and for an extra allowance to defendant.</p>

<p>Action to foreclose a mechanic’s lien.</p>

Motion by the plaintiff for a new trial made on the judge’s minutes on the following grounds: First. That the court erred in charging the jury, at the request of the defendant’s counsel, that no force was used in removing the plaintiff from the defendant’s street ear. Second. That the court erred in charging that the jury, in determining the question involved, might take into consideration the fact of the omission of the plaintiff to testify on the trial.

<p>Appeal from order granting leave to issue execution against the property of a deceased judgment debtor.</p>

<p>Appeal from . judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes.</p> <p>Action upon a promissory note made by the defendant t o the order of one Dunn, and by him indorsed to the plaintiff. The answer set up the payment of usurious interest in pursuance of an agreement between the plaintiff and defendant.</p> <p>At the close of the charge the defendant requested the court to charge that if the jury believed that the note sued upon was given in renewal of a note which was given by the defendant Pall to Dunn without consideration, whether for the purpose of having it discounted by the plaintiff or not, and the plaintiff did discount it, and charged Dunn for such discount a greater rate than six per cent per year, then the note had no inception until such discount, and it was usurious and void; also, that if the jury believed that the note in suit was given in renewal of a note for $150, given by the defendant to Dunn, without consideration, which Dunn sold to plaintiff for $135, then both notes were void for usury; also, that even if the jury believed that Dunn told the-plaintiff the note was a valid note in his hands against defendant, and that plaintiff believed it and relied upon Dunn’s statement, nevertheless, the note was usurious and void if plaintiff discounted it at a greater rate than six per cent per year, and it was, in fact, without consideration; all of which the court refused to charge except as already charged.</p>

<p>Appeal by plaintiff from judgment of nonsuit.</p>

<p>Where the jury have found for the plaintiff upon conflicting evidence, but in a smaller amount than claimed by him, and there is any evidence to support their findings, the verdict will be sustained.</p> <p>It is too late upon appeal to complain for the first time of the charge of the court.</p> <p>Where an agent pays his own personal debts with money belonging to his principal, without his authority, the person receiving it cannot retain such money, but must .return it or credit the principal with it on his account with him.</p>

<p>The defendants’ firm, which was indebted to plaintiffs, being insolvent, the brothers of the defendant Stix, who were not creditors, intervened to protect it, and induced the members thereof to settle with creditors by a return of goods in part. An arrangement was then made between said brothers, who were, morally liable for certain notes hold by a bank, the plaintiffs and said firm, by which said brothers agreed to pay said notes and all the indebtedness of the firm, except that to plaintiffs, upon receiving a bill of sale of the assets remaining, and the plaintiffs agreed, in consideration of their so doing, to release their claim. The brothers carried out their agreement, paying out large sums of their own money to pay off said debts. ITéhJ, that plaintiffs were hound by their agreement and that their claim was extinguished.</p>

<p>A renunciation of the right to appointment as administrator in another state relates only to assets which have to be administered upon in such state.</p> <p>A policy of insurance in a mutual benefit society is not a specialty in such a sense as to make it an asset in and belonging to the jurisdiction where it happened to be at the time of the decedent’s death.</p> <p>A policy in a mutual benefit society was made payable to the “legal representatives ” of the insured and stated that the relation of the person to be benefited was “ my estate.” Held, that in view of the objects of the society the moneys upon the policy belonged to the widow, there being no children, and not to the general estate; that the widow could have sued individually therefor, and it was immaterial that she sued as administratrix, and the fact that the policy was in the possession of the administrator appointed in another state xvould not prevent a recovery.</p>

<p>Actkw to foreclose a mortgage; defense, fraud.</p>

<p>Action for a specific performance of a contract to convey land.</p>

These actions are brought to foreclose mechanics’ liens on the Masonic Home building, located at Utica, 1ST. Y., and were consolidated by order of the court.

<p>Motion to open default'.</p>

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

<p>Motion to vacate judgment entered on a forfeited recognizance.</p>

<p>Appeal from a judgment of the District Court in the city of New York for the fourth judicial district, rendered by the justice, without a jury, in favor of the plaintiff.</p> <p>Action for services.</p>

<p>Motion for leave to appeal to Court of Appeals.</p>

<p>Appeal by defendant from judgment entered on verdict of jury in favor of plaintiff.</p>

<p>Appeal from order setting aside a case on appeal.</p>

<p>Appeal from an order granting a bill of particulars.</p>

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

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

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

<p>Appeal from judgment entered in favor of defendant.</p>

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

<p>Appeal from judgment in favor of the plaintiff, entered on the verdict of a jury.</p>

<p>Appeal from judgment in favor of the plaintiffs, entered on verdict directed by the court.</p>

<p>Appeal from order denying defendant’s motion to vacate a warrant of attachment.</p>