CAUSE OF ACTION. proper to charge a jury that they might legitimately take these into consideration in making up their verdict. The naked questions are: 1. Was the death occasioned by the wrongful act, neglect, or default of the party sought to be charged? and 2. What are the pecuniary injuries resulting from such death-the pecuniary injuries alone-no other-to the widow and next of kin of the deceased? [See Safford a. Drew, 3 Duer, 627; Blake a. the Midland Counties Railway, 10 Eng. L. & Eq. R., 139.] Supreme Court, III. Dist., Gen. T., 1858, Yertore a. Wiswall, 16 How. Pr. R., 8. Ib. 25. It seems, that any cause of action which is assignable, survives against the representatives of the party liable upon it; for both these properties of a cause of action are founded on the idea that it is a right of property, and has a determinate pecuniary value. 26. At common law, a husband cannot maintain an action for an injury to his wife, where the effect is her instantaneous death. [Higgins a. Butcher, Yelv., 89; Baker a. Bolton, 1 Comp., 493; Carey a. The Berkshire Railroad Company, 1 Cush., 475; Hallenbeck a. The Berkshire Railroad Company, 9 Cush., 480, and see 9 Ib., 104; Eden ɑ. Lex. and Frank. R. R. Co., 14 B. Mon., 204; Wesley a. E. H. and D. R. R. Co., 1 Handy, 481; and Miller a. Urmbehoven, 10 S. & R., 31.] Supreme Ct., Sp. T., 1858, Green a. The Hudson River Railroad Company, 16 How. Pr. R., 230. 27. Where complaint in an action brought by G. as administrator of his deceased wife to recover under the statute for her death, the complaint showed that deceased left a mother her next of kin, who was dependent on the deceased for her support, and who, by reason of the death, had not only been deprived of this support, but had sustained other specific damages,—e. g., sickness, and the expenses of the interment of the deceased; Held, that the action must be maintained. Supreme Ct., Sp. T., 1858, Green a. The Hudson River Railroad Company, 16 How. Pr. R., 263. 28. Whoever without special authority materially obstructs a highway, or renders its use hazardous (whether the fee of the land is in him, or in a municipal corporation), is liable in an action by any one who without want of due care sustains a special injury. Ct. of Appeals, 1858, Congreve a. Smith, 4 E. P. Smith's (18 N. Y) R., 79. 29. It is no defence to such action, that the work which rendered the highway dangerous was done by the servants of contractors, who had contracted with the defendant to do the work properly. [Dygert a. Schenck, 23 Wend., 446.] Ib.. CAUSE OF ACTION. 30. The plaintiffs caused to be constructed an area under the highway, and covered it with a stone. Held, that they were bound at their peril to keep the area covered in such manner as that the way would be as safe as before the area was built; and when the covering from any cause became unsafe they were responsible. It is no defence that the covering became unsafe by the wrongful act of a third party. Ct. of Appeals, 1858, Congreve a. Morgan, Ib., 48. 31. Negligence or want of skill in the defendants is not material in an action against a railroad company for damages incurred by reason of their having interfered with a highway. Supreme Ct., Gen. T., 1858, Robinson a. The New York and Erie Railroad Company, 27 Barb., 512. 32. It seems, that an action will not lie against the commissioners of highways for neglect to keep the highways in repair, to the damage. of the plaintiff; but that the only remedy is by indictment or mandamus. [See Bartlett a. Crosier, 17 Johns., 437; Morey a. The Town of Newfane, 8 Barb., 645; Hutson a. The City of New York, 5 Sandf., 289, 319.] And even if an individual can, in any case, sustain an action against commissioners for damages sustained by a road negligently and wrongfully left out of repair by them, it could only be when the damage sustained was special, and peculiar to the plaintiff; but it could not be for such damages as were incident and common to all persons who might have occasion to travel on the road. [See Lansing a. Smith, 8 Cow., 146; Butler a. Kent, 19 Johns., 223, 227; The People a. The Corporation of Albany, 11 Wend., 540, 544.] Herkimer County Ct. (1858), Cristman a. Paul, 16 How. Pr. R., 17. 33. An action to recover damages for the unlawful detention of specific moneys may be maintained against one who receives the money from a third person, and does not deliver it to the owner on request. N. Y. Common Pleas, Gen. T., 1855, Donohue a. Henry, 4 E. D. Smith's C. P. R., 162. 34. To warrant a recovery of damages for the detention of personal property, there should be proof of defendant's possession, of demand, and refusal to deliver. Ib. 35. An imaginary value attached to private letters, as being means of injuring third parties by publication, is not a value recognizable as a measure of damages in an action for their unlawful detention. Ib. 36. A mere levy, without removing the property, or in any other way interfering with it, is sufficient to sustain an action of trespass. [Connah a. Hale, 23 Wend., 462.] N. Y. Common Pleas, Gen. T, 1855, Stevens a. Somerindyke, 4 E. D. Smith's C. P. R., 418. CAUSE OF ACTION. 37. To enable the owner to maintain an action for the conversion of a chattel hired,―e. g., a horse, ridden beyond the place for which he was hired to go, and dying without having been returned,—it is not necessary for the plaintiff to tender back to the defendant the amount received for the hire of the horse. He may recover for the injury sustained by the conversion, and also keep what was agreed upon between the parties, and received as an equivalent for the use of the horse. N. Y. Common Pleas, Gen. T., 1855, Disbrow a. Tenbroeck, 4 E. D. Smith's C. P. R., 397. 38. It seems, that it would be otherwise if the plaintiff had accepted extra compensation upon the ground, and with knowledge of the fact of the conversion. Ib. 39. Whether a mortgagee can collect the insurance after the mortgage debt is paid; and whether it can be collected by or for the use of the mortgagor, where he is the person paying the premium,-Query? Bradford a. The Greenwich Insurance Company, Ante, 261; and see Beach a. The Bowery Fire Insurance Company, Ib., note. 40. The compensation of a public office is an incident to the title to the office, not to its mere occupation or exercise. The principle which avails to sustain the acts of officers de facto, as respects third persons, will not avail to sustain the claim of such an officer to salary or fees. The People on rel. Morton a. Tieman, Ante, 359. 41. One who is an officer de facto but not de jure, is not liable for omissions of duty as an officer. So held, in an action against such a one for a statute penalty imposed for neglect of duty. [Kiddle a. The County of Bedford, 7 S. & R., 386; Green a. Burke, 23 Wend., 502] Supreme Ct., Gen. T., 1858, Bentley a. Phelps, 27 Barb., 424. 42. The defendant was duly chosen overseer of highways at the annual town meeting; he was not present at the town meeting; the town clerk never gave him any notice of his election, and he never filed any notice of his acceptance. He commenced to serve as such officer, but afterwards disavowed any authority and refused to proceed, and thereupon was sued for the penalty for neglect of duty as an officer. Held, that the action could not be maintained. Though an officer de facto he was not de jure, and his acts were valid only as to third parties and the public. Ib. 43. The plaintiff cannot in one and the same action seek to recover possession of real property on the ground that he is the owner in fee, and that the defendant wrongfully withholds it from him, and also to confirm his title thereto by a decree that the title is in him, and that the defendant be required to convey an apparent outstanding title claimed CAUSE OF ACTION. by him to the plaintiff. Such claims are inconsistent. Lattin a. McCarty, Ante, 225. 44. The People of the State, and certain individuals who were their lessees, united in bringing an action for lands. The complaint alleged that the lands were owned in fee by the People, who, unless a lease thereinafter described was valid, were entitled to the possession; that the Corporation of the City of New-York had taken possession of the premises, and rented the same to the other defendants, who, unless the lease thereinafter described was valid, wrongfully withheld possession from the People; that subsequent to such taking possession, the People gave to the individual plaintiffs a lease of the lands, who under the lease, if it was valid, became entitled to the possession, but the defendants wrongfully withheld it; that the defendants who were in possession, refused to pay rents to the plaintiffs, being directed so to refuse by by the Corporation, and that they paid their rents to the agents of the Corporation. The judgment demanded was for possession, and for rents and profits. The Corporation and certain individual defendants demurred jointly, on the grounds that the complaint did not state facts sufficient to constitute a cause of action; that separate causes of action were improperly joined, and were not separately stated; and that the People were not proper parties plaintiff, but should have been made. defendants. Held, 1. That the complaint contained but one cause of action—a claim for possession, and for damages for the withholding subsequent to the lease. 2. The Corporation were not shown to be in actual possession, and therefore there was no cause of action as against them, though they could not take the objection upon the joint demurrer, there being a cause of action against the other defendants. 3. The lease was not void as a conveyance of land held adversely, for the rule against such conveyances does not operate to prohibit conveyances of such land by the People or public officers. 4. That a cause of action was sufficiently shown in the individual plaintiffs against the individual defendants, and the demurrer must be overruled. The People & Taylor a. The Mayor, &c., of N. Y Ante, 7. 45. Heirs liable for debts of their ancestor, if he left no personal assets within this State to be administered. Laws of 1859, 293, ch. 110. 46. An action to have the act of the board of supervisors in erecting a new town declared null and void, and to restrain proceedings for its organization, cannot be maintained by persons having no other interest than one common to all the freeholders of the proposed town. Such CAUSE OF ACTION. proceedings, if void, can only be redressed or prevented at the suit of the State, or some officer authorized to act in behalf of the public. A private person cannot bring it in question, unless the act complained of involve some peculiar damage to his individual interests. [People a. Stevens, 5 Hill, 616; Blackst. Com., book 4, 167; Seely a. Bishop, 19 Conn., 128; Anon., 3 Atk., 750; Smith a. The City of Boston, 7 Cush., 264; City of Georgetown a. The Alexandria Canal Company, 12 Pet., 91; Crowder a. Tinkler, 19 Ves., 617; Spencer a. The London and Birmingham Railroad Company, 8 Simons, 193; Sampson a. Smith, Ib., 272; Corning a. Lowerre, 6 John. Ch. R., 439; Bigelow a. The Hartford Bridge Company, 14 Conn., 565; O'Brien a. The Norwich, &c., Railroad Company, 17 Conn., 372.] Ct. of Appeals, 1858, Doolittle a. The Supervisors of Broome County, 4 E. P. Smith's (18 N. Y.) R., 155. 47. The cases of Adriance a. The Mayor &c., of New York (1 Barb. S. C. R., 19); Brower a. The Same (3 Ib. 254); Christopher a. The Same (13 Ib., 495); Stuyvesant a. Pearsall (15 Ib., 244); De Baun a. The Mayor, &c. (16 lb., 392); Wetmore a. Story (22 Ib., 414); Davis a. The Mayor &c., of New York (2 Duer, 663); Roosevelt a. Draper (16 How. Pr. R., 137); commented on. Ib. 48. F. was about to make a will, bequeathing a fund to the plaintiff. The defendant's testator, B. requested her not to make such will, and in consideration that she would and did refrain from making it, promised and agreed that he would hold the fund as trustee or agent of the plaintiff. F. made no will, and after her death B. did, in fact, until his own death hold the fund as the money and property of the plaintiff, and loaned out portions of it in the plaintiff's name. Held, that the plaintiff became in equity the owner of the fund, and was entitled to recover it by action out of the estate of B. in the hands of the administrator. [Chamberlain a. Chamberlain, Freem. Ch. R., 34; Devenish a. Baines, Prec. in Ch., 3; Oldham a. Litchfield, 2 Vern., 506; Barrow a. Greenough, 3 Ves., 152; Reech a. Kennegal, 1 Ves., Sen., 123; Hoge a. Hoge, 1 Watts, 163; 1 Story's Eq., 256; Podmore a. Gunning, 7 Sim., 644.] Ct. of Appeals, 1859, Williams a. Fitch, 4 E. P. Smith's (18 N. Y.) R., 546. 49. In such action, an attorney and counsellor at law being called as a witness, was required to disclose a conversation between himself and the defendant's intestate at the time when he was employed to draw an affidavit to be sworn to by B., and used for the purpose of reducing the assessment of his personal estate, on the ground that he was not the owner. Held, that the communication was privileged, and should have been excluded. Ib. |