Volume 94 — New York Supreme Court Reports

<p>Amendment of a judgment — denied on the ground of laches.</p> <p>Where parties delay for some fifteen years, before mailing any attempt to collect their costs, their motion to amend an interlocutory judgment in an action in which they are not parties, for the purpose of effecting such collection, will be denied on the ground of laches.</p>

Appeal by the defendants, The Central Trust Company of New York and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of February, 1895, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Robert W. Chapin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of January, 1895, upon tlie decision of the court rendered after a trial at the New York Special Term. The substance of the complaint is given in Y4 Hun, 521, upon the former appeal to the General Term from an order sustaining a demurrer to the complaint.

Appeal by the defendant, Sara J. Keene, from a judgment of the Supreme Court in favor of 'the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of January,. 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order made on the 27th day of February, 1895, and entered in said clerk’s office denying the defend- • ant’s motion for a new trial.

<p>Marketable title — will — contingent remainder — when it rests.</p> <p>The court will not compela purchaser of real estate at a judicial sale to complete his purchase, unless the title furnished to him is free from reasonable doubt and he will acquire by the purchase a marketable title to the property in question.</p> <p>The will of a testatrix provided that, in case her daughter Matilda should survive her daughter Emeline, and the latter should die without issue, the rents and profits of certain real and personal estate held in trust for Emeline should be applied to the support of Matilda during life, and after her decease the trustees were directed to convey the real and personal estate to the children and lawful heirs of the deceased brother of the testatrix, share and share alike, per stirpes. Emeline died without issue and before Matilda. An action was brought to partition the property, and only the descendants of the deceased brother of the testatrix who survived Matilda and Emeline were made parties. The purchaser at the sale in partition refused to complete his purchase.</p> <p>Meld, that the children of the testatrix’s brother did not take a vested remainder as of the death of the testatrix;</p> <p>That the bequest was contingent upon Bmeline’s dying without issue;</p> <p>That, as upon her death the trustees were to hold the property in trust for Matilda, the fee thereafter vested in the trustees until her death and then first became a vested remainder in the heirs of the testatrix’s brother, who were such at that time.</p>

<p>Sale induced by fraud — levy upon the goods by a creditor of the vendee — when replevinwill not lie — equitable remedy of the defrauded vendor — confusion of goods.</p> <p>Where the sale and delivery of goods has been induced by fraud, but the vendor has not rescinded the sale, the vendee has a leviable interest in the goods which can be taken by the sheriff under attachment. When so taken by the sheriff the goods are in the custody of the law, and an action of replevin upon the part of the defrauded vendor does not lie. The amendment to section 1690 of the Code of Civil Procedure, made by chapter 305 of the Laws of 1894,. changing this rule and in effect permitting an action of replevin in such a case, has no retroactive effect.</p> <p>Where the plaintiff in an attachment suit brings an action in equity to procure an adjudication as to the rights of various claimants to a fund realized from the sale of the property in dispute and in the hands of a receiver of the court, the rules of equity govern the decision of the case.</p> <p>In this view, replevin actions brought by defrauded vendors, and their demands for their property from the sheriff, constitute a rescission, displace the lien of the sheriff in favor of their original title, and give them an equitable title which the court will enforce.</p> <p>Where, however, the articles in question are manufactured garments, and the claim of the vendors is only for the merchandise which entered into the manufacture, the court will protect the vendors only to the extent of the value of the merchandise.</p> <p>Where the lights of innocent third parties intervene the usual rule as to confusion of goods will not be applied, and an attempt will be made to protect all who have an interest in the subject-matter.</p>

<p>City of Rochester — assessment fot' street improvements — deducted from award- — - payment by mistake— when the city will be enjoined from collecting the assessment.</p> <p>By tlie provisions of the charter of the city of Rochester (Chap. 14 of the Laws of 1880) that city is not obliged to pay for the taking of any land for the widening of a street until after the confirmation of the assessment roll which shall be made for the expenses of such improvement, and when the assessment roll is made for the expenses of any improvement there must be made to appear on the face of it not only the amount of the assessment against any person, but also the amount of damages, if any, to which that person shall be entitled,</p> <p>“and the amount of the excess, if any, to be collected.”</p> <p>In August, 1892, the mayor of the city of Rochester, by the authority of an ordinance passed by the common council of said city for the widening of Went-worth street, entered into a contract with one Yoshall, whereby Voshall agreed to convey to said city eighteen inches on the east side of his lot for a specified sum of money, the contract providing that there should be deducted from the consideration therein expressed the amount of the assessment to be made against said property for the improvement specified in the ordinance, and that the consideration was not to be paid until four months after the confirmation of the assessment..</p> <p>After the execution of said contract, and before any assessment roll had been completed, one Little bought of Yoshall the premises adjoining those contracted by Yoshall'to bo sold to the city of Rochester, and took actual possession of the premises in April, 1893. On May 8, 1893, Yoshall conveyed to Little the premises so sold to him, and also conveyed to the city the premises contracted by him to be sold to the city. The assessment roll was confirmed by the common council of said city on May 16, 1893.</p> <p>On the 13th of May, 1893, Voshall obtained from the city attorney of Rochester an order upon the city treasurer, which stated that he was entitled to the amount of the award made to him for the eighteen inches of land to be applied upon the assessment therefor, or in case the amount of the award exceeded the assessment, then to the payment of the balance. The order was presented, hut instead of deducting the amount of the assessment the treasurer paid to Voshall the whole amount of the award. After the confirmation of the assessment roll a notice was sent to Voshall to pay the whole amount of the tax, which notice was by him transferred to Little, and the city sought to make the land conveyed to Little liable for the whole amount of the tax.</p> <p>Upon the trial of an action brought by Little to restrain such proceeding on the part of the city,</p> <p>Meld, that under the contract between the mayor of the city of Rochester and Voshall the land was not to be made amenable to any lien for the assessment unless the amount thereof was greater than the consideration paid for the land purchased of Voshall;</p> <p>'That at the time that Little purchased the property from Voshall it was certain that no assessment would he levied against the property to pay for the widening of Wentworth street, as the assessment was tobe deducted from the consideration for the eighteen inches of land sold to the city by Voshall;</p> <p>'That the city had practically guaranteed that there should he no lien upon such property for such improvement unless the amount due to Voshall was less than the amount of the assessment against the land;</p> <p>'That the consequences of the mistake should not be visited upon Little, who had nothing to do with it, and that the city should be restrained from collecting the assessment against his land;</p> <p>That there was no reason why Voshall should be made a party to an action to restrain the city, Little making no claim against him and having no right of action against Voshall.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on tlie 4th day of January, 1895, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also-from an order made at the Erie Special Term and entered in said clerk’s office on the 8th day of February, 1895, denying the defendant’s motion for a new trial on…

Appeal by the plaintiffs, Allen J. Arnold and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 6th day of October, 1894, upon the decision of the court, rendered at the Monroe Special Term, sustaining the defendants’ demurrer to the plaintiffs’ complaint and dismissing the complaint.

Appeal by tlie plaintiff, Daniel Sellout, Jr.,- from a judgment of tlie Supreme Court in favor of tlie defendant, entered in the office of the clerk of the county of Monroe on the 26th day of February, 1895, upon the decision of the court, rendered after a trial before the court without a jury at the Monroe Circuit, dismissing the plaintiff’s complaint.