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Held, that the motion to dismiss Opinion by Earl, J. All concur, the city's appeal was properly de- except Rapallo, J., of counsel, nied ; that the chamberlain was not voting. merely a depositary of the money for the use of the city, and in the

SHERIFFS. SUBSTITUTION. absence of proof that the city had taken or used the money his re

N. Y. COURT OF APPEALS. ceipt could not be held to be a

Hayes, applt., v. Davidson, waiver of the right of appeal.

sheriff, respt. Also held, That under Sec. 18 of the act under which the proceed

Decided Jan. 20, 1885. ings were had, the company was To authorize the granting of an order under entitled to enter upon, take posses

SS 1421-1427 of the Code, substituting the sion of and use the land condemned

indemnitors in place of the sheriff, it must

affirmatively appear in the motion papers for the purposes of its incorpora

that the applicants became indemnitors betion, and the title vested in it; but fore the commencement of the action. either party could appeal from the As to whether an order can be granted where order confirming the award of the

the property taken was seized under sepa

rate and distinct levies at different times, as commissioners

to
the General

to some of which only indemnity has been Term, notwithstanding the com given, and where the indemnity refers to pany takes possession of the lands different seizures, the penalties vary largely

in amount and some of the indemnitors do and pays or deposits the amount

not apply, quære. of the award. 94 N. Y., 287.

Section 18 of the act of 1850, This was an appeal from an Chap. 140, provides that on the order of General Term, affirming hearing of an appeal to the Gen- an order of Special Term diseral Term from an order confirm-charging defendant from his liaing the award of commissioners, bility as sheriff to plaintiff for an “the court may direct a new ap- alleged trespass in seizing and conpraisal before the same, or new verting his property, and substicommissioners in its discretion.” tuting in his place as defendant It does not appear from the order several persons who claim to have appealed from that it was not indemnified the sheriff for his acts made in the exercise of such dis- in seizing the property. The mo. cretion.

tion was made under SS 1421 to Held, That this court cannot 1427 of the Code of Civil Procedlook at the opinion to see upon ure, which provide that when an what ground the new appraisal action like the present is brought, was ordered. 82 N. Y., 95. "if a bond or written undertaking

Also held, That this being a indemnifying the officer against special proceeding, and the order the levy or other act was given in appealed from not being final, no behalf of the judgment creditor, appeal lies. Code $ 190; 67 N. Y., or the plaintiff in the warrant, be555 ; 77 id., 514; 81 id., 305. fore the action was commenced, Appeal dismissed.

the person or persons who gave

it” may be substituted as defend- upon separate and distinct levies ants in the place of the officer and under numerous processes at difone acting by his command or in ferent times, as to some of which his aid. (S 1421).

(S 1421). It is also pro- indemnity has been given and vided, in case the pleadings do not others not, and where the indemshow that the case is one where nity refers to different seizures and the order may be granted, the facts the penalties of the respective may be otherwise shown, and that bonds vary largely in amount, the moving papers must contain and some indemnitors apply for a written consent duly executed, substitution and others do not, acknowledged and certified on the quere. part of the applicant to be made Order of General Term, affirmdefendant (S 1422). The court is ing order of Special Term granting authorized to impose such terms motion for order of substitution, on granting the order as justice reversed, and motion denied. may require (S 1423), and that

Opinion by Ruger, Ch. J. All when the indemnity given by the concur. applicants relates only to a part of the property the action may be

CONTRACT. PRACTICE. divided and the applicants admitted to defend as to that part of the N. Y. SUPREME COURT. GENERAL action which affects the property TERM. FOURTH DEPT. in which they

interested (S 1424). It did not appear when

Timothy A. Smith et al., applts., the action was commenced or that

v. Thomas Brady, respt. the bonds of indemnity were exe Decided Oct., 1884. cuted prior thereto.

In an action upon a land contract it is compe. Peter Condon, for applt.

tent for defendant to show that such conGeorge F. Langbein, for respt. tract was abandoned and rescinded and

Held, That as the statute makes that a new contract, as to other subject it one of the conditions of the ap

matter, was accepted by plaintiff in full

satisfaction, and this may be done by parol. plication that the applicants be

Where a stipulation provided that defendant came indemnitors before the com

might appeal and interpose a general de mencement of the action that fact nial and the answer as served contained must appear affirmatively in the also an allegation that the contract in ques

tion had been abandoned and a new one motion papers to authorize the

substituted therefor and that plaintiffs were granting of the order of substitu

paid in full, Held, That an order allowing tion.

the answer to stand on payment of costs As to whether an order of sub would be upheld on the ground that the stitution authorized by SS 1421-

answer ought to stand as it was to fairly

carry out the object of the stipulation. 1427 of the Code of Civil Proced. ure could be granted in a case Appeal from order of County where the property taken con Court granting motion for a new sists of numerous articles of trial on the minutes, and also from large value, and has been seized | a prior order striking out answer

are

unless defendant pay to plaintiffs' | ment should become inoperative attorney $10 costs before the case and void as against them, and deis reached and called, in which fendant be liable to be removed as case the answer was to stand. a tenant holding over. Defendant

Action brought in justice's court paid the $50, took possession, but to recover balance due on a land made no other payments. On contract. In that court plaintiffs August 20, 1874, the parties enrecovered judgment for $92.10 and tered into a contract for the sale costs by default. Plaintiffs having and purchase of a lot on Ash street moved for leave to issue execution, for $300, of which $40 was paid defendant moved to vacate the down and the balance to be paid judgment on the ground that the in ten years. Defendant took summons had never been served on possession of this lot and surrenhim and that he had no notice of dered possession of the other. the judgment until plaintiffs’ mo Defendant claimed that the contion papers were served, and there tract for the Palmer street lot was upon a stipulation was entered rescinded and abandoned between into by which defendant was the parties, in consideration of allowed to perfect an appeal for a which the contract for the Ash new trial in County Court and in street lot was taken, and testified terpose a general denial.

that one of the plaintiffs told him The answer in County Court set “Whatever I paid when the conup the general denial, and also tract was throwed up a man lost that the land contract had been it; so he called it an even thing rescinded and abandoned, and that between me and him to throw up plaintiffs received back the prem- the old contract and take a new ises in consideration that defend-contract on Ash street; called it ant would lose what he had paid square." and would purchase another lot of The County Court ordered a plaintiffs, which he did, and that verdict for plaintiffs for the amount plaintiffs were paid in full.

claimed. Afterwards, on a motion It appeared that in September, for a new trial on the minutes, 1873, plaintiffs, by written con this verdict was set aside and a tract, agreed to sell to defendant new trial granted. a certain lot on Palmer street, in

Geo. S. Hooker, for applts. Watertown, for $680 and interest; defendant agreeing to pay $50

Thos. F. Kearns, for respt. down and the balance in thirty Held, That the question of abanfive equal quarterly instalments: donment and satisfaction should The contract provided that if de have gone to the jury, and that fendant failed to perform any of therefore the court did not err in his covenants, plaintiffs, if they granting a new trial. Upon the elected to disaffirm the agreement | pleadings as they stood at the trial by reason thereof, were at liberty the issue was whether the first to do so, and thereupon the agree-l contract had been rescinded and

abandoned by the agreement of liar position. The order struck the parties and the new one re out the answer unless certain costs ceived by plaintiffs in satisfaction were paid to plaintiffs' attorney of whatever rights they had under before the case was reached. As the old. It was competent for the record shows that the trial defendant to show that the first went on at the same term with the contract had been rescinded and answer, the presumption is that abandoned, thereby working out the costs specified in the order its dissolution, 87 N. Y., 463; 9 were paid. It has been held that Cow., 46; 1 Sugd. on Vendors, accepting costs awarded by an 256, and this could be done by order was a waiver of the rigbt to parol. .

1 Barb., 130; 7 Cow., 48. appeal from it. 8 Abb. N. C., A parol executed agreement may 392. The order recites that the operate as a release of a covenant motion was made to strike out all under seal. 2 T. & C., 257, and the answer but the general denial, cases cited. It was competent for on the ground that it was not audefendant to show that the new thorized by the stipulation. It agreement, being as tu other sub- does not appear on what papers ject matter and a new valid obli or proceedings the motion was gation, was received and accepted based or proposed, or whether the by plaintiffs in full satisfaction of answer was allowed to stand on any rights they had under the old the ground of the laches of plaincontract. 75 N. Y., 574; 3 Pars. tiffs in making their motion, or on Cont., 6th Ed., 681. There is because defendant should have evidence in the case from which it leave to amend on paying for it, or became a question of fact to be because the answer ought to stand passed upon by the jury whether as it was in order to fairly carry the first contract was in fact aban- out the object of the stipulation, doned and rescinded by the agree- which, if made in good faith, was ment of the parties and whether to give defendant an opportunity the new one was accepted by to contest fully the alleged inplaintiffs in full satisfaction. Ac- debtedness to plaintiffs. We think cording to the testimony of de we must assume that all of the fendant he evidently so under- prior proceedings were before the stood it. Nothing appears to have County Court when it made the been said about reserving pay- order and that it should be upheld ments past due. There was nothing on the ground last stated. in the contract that authorized Orders affirmed, with costs. plaintiffs to cancel it and still re Opinion by Merwin, J.; Hatserve the right to collect what was din, P. J., and Follett, J., con

cur. Sperry v. Miller, 4 Seld., 336, distinguished.

The appeal from the order as to the answer is in a somewhat pecu

past due.

COVENANT. DAMAGES.

mortgages or any part thereof,

and the whole of the premises, inN. Y. SUPREME COURT. GENERAL cluding that portion sold to BingTERM. FIFTH DEPT.

ham, was sold under foreclosure,

and the whole amount realized on Frederick E. Wilcox, respt., v. James Campbell, applt.

the sale was applied in payment of

the mortgage debts. Decided Jan., 1885.

Bingham then assigned and Where the owner of a parcel of land encum

transferred to plaintiff all claims bered by two mortgages, for both of which and demands and all causes of he was also personally liable, conveyed a action which he had against deportion to defendant, who assumed and

fendant by reason of his failure to agreed to pay them as a part of the purchase price, and afterwards conveyed the pay off and discharge the mortremainder to B. by a quit-claim deed ; and gages. Upon these facts the reupon default in payment the mortgages feree found as a conclusion of law were foreclosed and the whole parcel sold

that plaintiff was entitled to reto satisfy the mortgage debts, Held, That

cover of defendant the value of B. was entitled to maintain an action upon the covenant to recover the value of the the parcel conveyed to Bingham parcel lost to him by reason of defendant's at the time of its sale under the failure to pay the mortgages and the conse

foreclosure judgment. quent foreclosure sale.

J. A. Slull, for applt. The measure or rule of damages is the value of the parcel lost to B. at the time of its

J. & Q. Van Voorhis, for respt. sale under the judgment of foreclosure, it Held, No error. That the rights being less than the amount of the mort

of the grantor arising out of degages.

fendant's covenant to relieve the Appeal from judgment entered portion retained by her from the upon report of referee,

burden of the mortgages passed Jane E. Wilcox, being the owner by the conveyance to Bingham, of a parcel of land encumbered by or that he became an equitable two mortgages given to secure two assignee of the mortgages and sub. bonds, for payment of both of rogated to the rights of the mortwhich she was personally liable, gagees to the extent of the value conveyed a portion thereof to of his parcel lost to him by the James Campbell, the defendant, failure of defendant to fulfil his who assumed and agreed to pay covenant, and the consequent forethe bonds and mortgages as a part closure and sale, and that he was of the purchase price. Afterwards entitled to recover the amount Wilcox, by her quit-claim deed, thereof in a personal action upon granted and conveyed to Bingham the covenant. ' all her estate, right, title, interest, As between Mrs. Wilcox and claim and demand whatsoever, defendant he became the principal either in law or equity, in and to debtor and personally liable for the remaining portion retained by the amount of the mortgages. She her. Defendant did not fulfil his stood in the relation of surety, and covenant, but failed to pay said the parcel retained by her became

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