Volume 8 — Abbott's New Cases

<p>Appeal from a judgment.</p> <p>Ralph A. Hard sued Ephraim J. Milligan, Jeremiah Lant and Issao F. Bissell for conversion of chattels, alleging that defendants had became possessed of and wrongfully detained from plaintiff the stock in trade contained in a certain store in Brooklyn, from which place the goods had been taken by defendant Lant, who put them in the auction room of defendant Bissell.</p> <p>It appeared that before June 26, 1878, Ephraim J. Milligan, one of the defendants, and one Dawson McQ-rayne were partners, holding said stock, and doing business at the store mentioned. That they then dissolved partnership, upon terms by which McHrayne took the entire partnership assets, and assumed the partnership debts ; and gave Milligan, the retiring partner, a chattel mortgage on the assets to secure the price at which he bought him out. In about a month McGrrayne made an assignment to Hard, the present plaintiff, for the benefit of creditors. Immediately after the making of that assignment, Ephraim Milligan assigned the mortgage he held, to his wife, through an intermediary. Subsequently, and on default in the terms of the mortgage, the defendant Lant, under the wife’s authority, entered the premises and removed the property to thp auction room, whereupon this action was brought. It did not 'appear that any demand had been made for the return of the property before the commencement of the action.</p> <p>The language of the assignment was sufficiently broad to convey all this property; and its terms contemplated the application of the assets to all the debts of the assignor, without indicating the existence of any distinction in respect to firm and individual debts.</p> <p>On the trial, McGrrayne as a witness was allowed to testify, in plaintiffs behalf and against objection, that, at the time of the dissolution, the firm was not able to pay its debts as they became due in the usual course of trade ; that they had been sued by firm creditors ; and to state the amount of indebtedness. An inquiry as to the amount of his individual indebtedness was excluded. His testimony that he had no other property than the firm property, and that the retiring partner knew this fact, was admitted against objection.</p> <p>Plaintiff, by direction of the court, had a verdict, and defendants appealed.</p>

<p>Carrier.—Delivery.—Usage.—Discharge into Elevator.—Consignor and Consignee.</p> <p>Under general commercial usage the consignee of a part of a cargo of grain coming from the lakes and delivered at Buffalo, as well as the consignee of an entire cargo, has a right to select the elevator into which the carriers shall discharge his portion.</p> <p>The rule that general ships in the ocean trade may deliver upon their own wharf, with due notice to the consignee, does not apply in the case of the carriage of grain in inland navigation.</p>

<p>Fabtnebship.—Fictitious Names.</p> <p>Under the statutes forbidding the carrying on of business in the names of fictitious persons,* it is not enough that the partnership had business relations with foreign countries, or had, for a period of five years or upwards, carried on business in .this State, under the name which is continued; but the requirement of the statute in respect to filing and publishing a certificate, &c., must also be complied with.</p> <p>Form of an answer setting up this defense to an action on a contract by the firm,—Held, sufficient.</p>

Appeal by defendant from judgment on demurrer to complaint. George D. Lunt and John Hegeman sued Elizabeth H. Lunt, as administratrix of the estate of Benjamin P. Lunt, deceased. The allegations of the cause of action in the complaint demurred to were: “ 1. That on or about the first day of January, 1875, said Benjamin P. Lunt died intestate.

<p>Will.—Legacies.—Lapsing.—Distribution to Next of Kin.— Religious Corporations.—Revocation.</p> <p>When the testator in his lifetime wholly divests himself of the property previously devised or bequeathed, the revocation is eSectual, although he does it by making a conversion such as he directed in the will, and leaves the fund not otherwise disposed of.</p> <p>Where a testator bequeathed to his wife all his personal estate and the use for life of all his real estate, and authorized his executors, together with his wife, to sell his real estate and deposit the avails thereof in a certain savings bank, and directed his executors to pay out of such fund what was necessary for his wife’s comfort for life, and if anything remained after her death to pay it over to certain legatees, but the testator during his life sold all his real estate and deposited the proceeds, which constituted his whole estate, in the savings bank, and he outlived his wife,—Held, that the law presumed a revocation of the residuary legacies in consequence of the change in his family and property; and the fact that he deposited the avails of his real estate in the savings bank without a republication of the will thereupon was not sufficient to rebut the presumption.</p> <p>When it is manifest from the express words of a will, that a gift of the residue is confined to the residue of a particular fund or description of property or to some certain residuum, the legatee will be restricted to what is thus particularly given.*</p> <p>In the absence of a legatee capable of taking under a will, pro tanto revoked, the personal estate is to be distributed to the next of kin under the statute of distributions.</p> <p>Whether the act (X. 1860, c. 360) which prohibits persons having certain relatives from devising more than half their property, by will, to benevolent or other societies, intends relatives at the time of execution or at the time of death, qucere ?†</p>

<p>Legacies.—Charge on Real Estate.</p> <p>Where the personalty is grossly insufficient to pay the debts and legacies, very slight indications in the will will be laid hold of by the court, to raise an implication that the executor is to pay the legacies out of the real estate.</p> <p>When the testator’s widow was the legatee, and the gift was made in lieu of dower, and the testator’s sons, to whom the residue of the estate was given, were, in words, directed, within a given time, to pay the legacy, the personal estate being' wholly inadequate,—Held, that the legacy was a charge upon the realty.</p> <p>Where a devisee of real estate is appointed executor, and is directed to pay legacies, a charge upon the real estate will be created when there is a failure of personal estate:</p> <p>Hyers v. Eddy, 47 Barb. 731,—distinguished.</p>

<p>Dissolution of Cobfobation.—Manufactubing Cobfobationi—■ Stockholdebs.</p> <p>The neglect of a corporation for more than a year to pay its debts isi sufficient to justify proceedings for its dissolution.*</p> <p>And such proceedings may be instituted by a stockholder of a corporation organized under the general manufacturing laws of this State.*</p>

<p>Divorce.'—Re-marriage—Alimony.</p> <p>The provision of 2 B. 8.146, § 49,—forbidding the re-marriage of a party divorced, for adultery,—precludes even re-marriage with the party who obtained the divorce.†</p> <p>Such re-marriage without leave of the court is a nullity.</p> <p>Such a divorced adulterer who re-marries his former wife, without leave of court, cannot be allowed to assert any rights against such former partner, based on his own violation of law in re-marrying.</p> <p>In the present case such re-marriage,—Reid, no defense to a motion to enforce payment of alimony.</p>

Habeas corpus. Stewart W. Freeman brought an action in the New York superior court, against his wife Hannah, for a divorce ; and she made default. The default was opened on her application, and leave to defend granted on condition that she stipulate not to ask for alimony and counsel íes pendente lite. She answered, and the action wás tried before a referee, who found in her favor. Her counsel then moved before judgment for an order granting alimony.

I. January, 1880. Motion by plaintiff for alimony pending the action, and for a counsel fee to prosecute the same. .The action was brought by Priscilla Allen, against her husband, G-eorge W. Allen, for a divorce annulling the marriage contract upon the ground that he was-physically incapable of entering into the marriage state. The complaint alleged the marriage of the partiesát the city of New York, on May 15, 1879, and residence in this State.

This was an action brought in April, 1879, by Susan Fulton, the widow of Alexander Fulton, deceased, against Melvin Fulton and others, to recover the value of her dower interest in the lands of her deceased husband, under chapter 717, Laws of 1870,† she electing to take a gross sum in lieu of dower, and instead of the benefits contained in the will of her husband.

Charlotte Ann Nicoll, Solomon Townsend, and Henry Nicoll, as executors of Solomon T. Nicoll, deceased, sued Edward Burke, for rent due upon a lease, and the renewals thereof.

Mary E. Mellen, the plaintiff and respondent, resides at Worcester, Mass.; Charles D. Hutchins, the. defendant and appellant, in the city of Rochester, N. Y. The action was brought by long summons in the municipal court of the city of Rochester, which is not a court of record,† Judgment was recovered in favor of the respondent, and from that judgment the appellant appealed to this court.

The action was brought by Alice Douglas against Joseph L. Haberstro, as sheriff of Erie county. I. Speeial Term, November, 1879. Motion by defendant to set aside a judgment for irregularity. This motion was made on the ground that the defendant had no notice of the application for judgment. The facts appear in the opinion.

<p>Time in which Motion to Vacate Arrest must be Decided.— Reference.—Order.</p> <p>' A plaintiff who has obtained an order of arrest or other provisional remedy cannot defeat a motion to vacate or modify, by objecting that it has been held under consideration more than twenty days, in violation of section 719 of the Code of Civil Procedure, which requires such a motion to be decided within that time.</p> <p>An order referring such a motion to a referee, though made after the lapse of more than twenty days, is not void, nor to be set aside on that ground on plaintiff’s motion.</p> <p>An order of reference cannot be set aside or vacated until it has been entered.</p>

<p>Attachment.—Undertaking.—Attorney and Client.</p> <p>An undertaking, given by a defendant upon an application for the discharge of an attachment, cannot be acknowledged,- nor can justification of the sureties be had, before the defendant’s attorney.</p>

Appeal by plaintiff from a judgment. The action was brought by Frederick Weisbrod against Lucas Marquardt, Jacob Eschelman and Henry Traub, on an undertaking given by the defendants on an appeal from a decision given by a justice of the peace of the city of Brooklyn in a landlord and tenant proceeding against Henry Traub, for the possession of premises.

This was an action of ejectment by Maria Gifford and Chauncey W. Clark, against the Town of Graves-end, Kings county, New York, to recover possession of the Coney Island lands. The plaintiffs, who claimed to be heirs of the original patentees to whom the lands in. question were granted, resided in Rochester, and brought the action in Monroe county.

<p>Naturalization.—Marin» up Eecord nunc pro tunc.—Presumptions.</p> <p>The court cannot make up a record of naturalization proceedings and issue a certificate nunc pro tunc, when no record has been made of the steps taken antecedent to the issuing of the certificate.</p> <p>It cannot be supposed that things have been done in respect to the naturalization of persons, which do not appear of record.*</p>

I. Special Term, December, 1879. Trial by the court, on stipulated facts. This was an action by Joseph J. Little and W. Jennings Remorest, indorsees, against Emma Rawson, the maker, and A. L. Rawson, her husband, payee and indorser, of the following promissory note, viz.: “ New York, October 8, 1878. “ Sixty days after date, I promise to pay to A. L. Rawson or order one thousand dollars for value received.

The action was brought by Cecilia Louise Wigand, Francis William Wigand and Albert August Wigand, three infants, by Edward S. Hubbe, their guardian ad litem, against Louis Dejonge and Augusta Mertens, the executor and executrix of, and trustees under the last will and testament of Francis Wigand, deceased, the father of the infant plaintiffs.

<p>Appeal from an order granting a new trial, on the ground of newly-discovered evidence.</p> <p>The action was brought by Moses May against Bernard Strauss. The plaintiff sought to recover S3,460.84, rent of premises which had been occupied by the defendant, according to the terms of a lease granted to him by the plaintiff. The lease was admitted on the trial. The defendant sought to show that during the term and ■on the occasion of his selling out his interest in the business, the plaintiff consented to look to the purchaser, the new tenant, for the rent, and discharged the ■defendant, assuring him that he had nothing further to do with the lease. According to defendant’s proofs, that arrangement was made at the store on the 9th or 10th ■of December, 1873, and by reason of it the rent for that month was then paid to the plaintiff by Mr. Hoffman, the new tenant, by his check on the bank. In his testimony the plaintiff denied that he was at the store on the occasion stated, that he then knew of the defendant’s sale, that he had used the words imputed to him about the lease, or had received Hoffman’s check for the December rent, as alleged. The check was not produced. The question thus raised having been submitted to the jury, the defendant had a verdict.</p> <p>On the motion for a new trial it appeared that the check in question had not been given ; and that, as the defendant’s proof as to that part of the arrangement was erroneous, there was reason to apprehend that the jury had been misled.</p> <p>The court at special term granted a new trial, the following opinion being rendered.</p> <p>MoCue, J.—[After reviewing the facts.]—I am strongly impressed with the idea that this proof would have seriously impaired the reliance which the jury seemed to place in the mere recollection of the witnesses who testify as to the alleged surrender, and all that there took place, and that if the jury had come to the conclusion that the defendant and his witnesses were in error on this point, it is not unlikely that they would have disregarded their testimony as to the surrender itself. It is not a question as to the payment of the rent, for it is conceded that the rent for December, 1873, and January, 1874, was paid, and under ordinary circumstances, it would not have been important even to inquire by whom it was paid. The point, however, derives significance, from the fact that the rent is claimed to have been paid by the incoming tenants at the time the surrender was negotiated, and thus became a part of the res gestee.</p> <p>It does not appear to me, therefore, that the new evidence is open to the objection that it is simply cumulative, and intended only to impeach the testimony of the other witnesses; undoubtedly it will, if relied on by the jury, have a tendency to contradict the defendant’s witnesses, but this may be said of all opposing testimony. The bank book and checks taken together constitute the highest order of proof upon the subject-matter to which they relate, and should, in furtherance of justice, appear in the case. Hoffman, one of the incoming tenants, testified that he paid the December rent on the 10th day of that month, and by the firm check, that he got the check for a receipt, and that at the time of the trial the check was, he supposed, in the possession óf Judge Daily.</p> <p>The importance of the new evidence is, therefore, evident. The case of Hodge r>. Denney, reported in 6 Alb. L. J. 93, is in point.</p> <p>It cannot be fairly said that the plaintiff was guilty of laches, in not producing this testimony on the trial. He could not be expected to anticipate any such testimony, in view of the fact that he denies that any such check was given to him.</p> <p>As to the objection that the motion is not made upon a case, as provided by the rules, undoubtedly the better practice is to prepare a case, as required; but in this instance, the stenographer’s minutes seem to have been served and accepted as the case, and I find among the papers an admission of the “service of within case, on motion for a new trial.”* This' is a substantial waiver of the irregularity.</p> <p>Under all the circumstances of the case, therefore, I am satisfied that the purposes of justice will be sub-, served, by permitting another jury to review and pass upon all the facts which can be established in evidence.</p> <p>The motion for a new trial is therefore granted, upon payment of the costs of the former trial, and $10 costs of this motion.</p> <p>From this decision defendant appealed.</p>

Appeal by the defendant from a judgment rendered at. special term. The action was brought by Henry W. Sage, and Douglas Boardman, executor, and Jennie McGraw, executrix, under the will of, John McGraw, deceased, against the city of Brooklyn, to recover the amount awarded the plaintiffs for an easement in lands, taken in the construction of Sackett street boulevard. The facts are sufficiently stated in the opinion.

Appeal by defendant from a judgment, and from an order denying a new trial. This action was brought by Sarah M. Harris against William Tumbridge to recover damages for a violation of duty as her broker.

<p>Insurance.—Rights oe Policy Holder.</p> <p>The holder of a lapsed policy cannot sustain action against the company.</p> <p>Mere suspicion of insolvency and abuse will not justify a policy holder in lapsing his policy.</p> <p>There is no trust relation between the policy holders of a mutual company and the company.</p> <p>An action in equity will not lie on such a theory.</p> <p>It is questionable whether a suit to wind up a foreign company, or to interfere with its affairs, can be maintained in this State.</p>

Order to show cause why a mandamus should not issue. This proceeding was instituted by the relator, Anais Haase, against the German Hospital and Dr. Degener, to compel them to correct the certificate of her husband’s death, which they had filed with the board of health.

<p>Mandamus.—Inspection op Books.—Benevolent Associations.</p> <p>A writ of mandamus will be issued to compel an officer of a benevolent association having charge of the books thereof, and having a lien thereon for arrears of salary, to permit an inspection of them, upon condition of their being returned to him after such inspection.</p> <p>To contest the officer’s right lo retain, by such proceedings, the relator should take an alternative writ.</p>

Ephraim W. Fellows brought this action against Josephine E. Wallace and others, to foreclose a mortgage. Plaintiff having recovered judgment after a trial of the issues, defendant Wallace appealed.

Frank Heeg sued Philip Licht to recover damage for an injury to his premises, caused by an explosion of a powder magazine, belonging to the defendant. The defendant’s buildings were about one hundred and seventy-five feet from the plaintiff’s premises, and were used for making and storing fireworks.

Motion by defendant on a case and exceptions for a new trial. The action was brought by Nancy Y. Campbell against Osborn L. Crampton, for breach of promise of marriage. The domicil of the plaintiff was in the State of New York. The marriage engagement was made in Alabama in October, 1873, and continued thereafter until September, 3878, when the defendant married another woman.

Trial by the special term of the supreme court, of an issue of law arising upon a demurrer to the complaint. Henry Lewis sued William H. Armstrong as trustee of a manufacturing corporation, for a liability arising from a failure to file an annual report.

The Wayne County Savings Bank, of Honesdale, Pa., sued Henry R. Low, on a note of which the following is a copy. “$2,000. Middletown, N. Y., January 20, 1875. This note was one of a series of renewal notes. The original note was made for the accommodation of one. Smith, who had it discounted at the plaintiff’s bank in Pennsylvania.

Maria L. Platz sued the city of Cohoes for damages resulting from its negligence. The case was tried in Albany county, and a verdict was rendered for the plaintiff for $400. The plaintiff moved on the judge’s minutes to set aside this verdict on the ground of inadequacy. Further facts sufficiently appear from the opinion.

Trial by the court at special term. The action was brought by the plaintiff against the executors of the last will and testament of Simeon Flanagan, deceased ; the former claiming against the executors the possession and absolute right of disposition of the entire remainder of the testator’s estate held by them in money and securities, amounting to $16,450.

This proceeding was instituted by Edward M. Townsend and Henry C. Yale, to cause the arrest of Isaac Nebenzahl and Montague S. Marks, under the provisions of the S til well act.* The affidavit upon which the warrant of arrest, was obtained set out the obtaining of a judgment by the complainants against the defendants ; alleged that the defendants fraudulently contracted the debt for which the judgment was rendered, that their store had been in a state indicating some unusual…

Petition for leave to marry again after divorce. Elizabeth M. Greene procured a divorce in the supreme court of this State in 1870, on the ground of the adultery of her husband, George W. Greene, in marrying a second wife, Arminia Mirserly. The plaintiff subsequently married again ; the defendant continued to cohabit with his second wife, by whom he had a child.