subscriptions for stock of the corporation, and failure to pay the same over to the company, and the answers deny the failure to pay over said moneys and expressly allege payment of the same, the plaintiff must prove said non-payment in order to sustain his action.-Andrews v. Moller et al., 377.
12. Neither the continuance of default in paying a debt nor subsequent omissions of the company to make annual reports can renew the liability of a trustee for such debt, or create a new right of action.-The Rector, &c., of Trinity Ch. v. Vanderbilt,
13. A corporation lessee covenanted to pay a certain sum as rent, and to pay the taxes and water rates imposed for each year, and if not so paid before the 1st of February after they become due, then to pay on that day all penalties, etc., as additional rent. Held, That on default of payment of the taxes and water rates no cause of action to recover them accrued to the lessor until the 1st of February after they were due.-Id. 14. It is very questionable whether a debt owing by a corporation for advances made by one of its directors can be included in the debts of such corporation in order to render its directors personally liable for them under § 22 of Chap. 611, Laws of 1875, upon the ground that such debts ex- ceed the capital stock of the corporation.- Robinson et al v. Thompson, impld., 557. See MORTGAGE, 6.
1. In an action for the removal of an assignee for the benefit of creditors and the appoint- ment of a receiver of the assigned property and in which an answer was interposed but which was discontinued before trial upon payment of costs, upon the application of the plaintiff, Held, That there was no basis upon which a computation for an allowance could be properly made, and that the court had no power to make an allowance.- Meyer v. Rasquin, 98.
2. Where no item of a contested claim against an estate is rejected and the amount actu- ally due depends upon the mode of com- putation, or whether the claim bears inter- est, or from what time, Held, That an order for costs and disbursements to claim- ant on the ground of unreasonable resist- ance is not error.-Hyland v. Carpenter et 261.
3. Where a case is discontinued on payment of costs after it has been moved for trial but before the trial has actually commenced the defendant is not entitled to a trial fee. -Studwell v. Baxter, 340.
4. J. having sued E. to recover a just de- mand, E. delivered to J.'s attorney in the
action divers claims on the understanding with the attorney that collections thereon were to be applied in satisfaction of J.'s claims, and the surplus to be paid to E. Of this J. was aware. Thereafter the attorney brought action in E.'s name on one of the claims which resulted in a judgment for costs against E. Neither this nor any ac- tion was authorized by J., and he was ignorant of it till a motion was made to charge him with such costs. Held, That J. could not be made liable for the costs, un- der $3247, Code Civ Pro., as the party beneficially interested in the recovery.- Elliott v. Lemcky, 348.
5. An award of separate bills of costs to several defendants is not required by § 3230 of the Code of Civ. Pro. to be made at the time of the trial, and the confirmation by the court of the taxation of such separate bills, upon a motion to set it aside, operates as such award.-Andrews v. Moller et al., 877.
6. Under Chap. 237, Laws of 1878, prescrib- ing a penalty for bringing skimmed milk to a cheese factory, to be sued for by the per- sons defrauded, the plaintiffs are entitled to full costs although the penalty recovered be less than fifty dollars.-Furman et al., v. Cunningham, 416.
7. The water commissioners of a village made a contract with defendants for certain ma- chinery to be paid for by the village on their acceptance of it, the title to remain in defendants until full payment. This has not been made. Plaintiffs, as taxpayers, by this action sought to restrain the perform- ance of the contract as ultra vires, but were defeated, and defendants obtained an extra allowance based on the contract price. Held, Error; that the true basis for such allow- ance was the difference between the con- tract price and the value of the machinery to defendants after it had been thrown on their hands by the failure of the village to take it.-Mingay et al. v. The Holly Mfg. Co., impld., 513.
8. If a complaint set forth two causes of ac- tion, upon one of which plaintiff recovers, but fails to establish the other cause of ac- tion, the defendant is not entitled to costs under § 3234, Code Civ. Pro.-Barlow v. Barlow, 561.
9. Plaintiff is not entitled to costs of an at- tachment where the attachment is set aside, --Id.
See APPEAL, 2, 3; ATTORNEYS, 1, 11, 12; GUARDIANS, 1; REPLEVIN, 2; SUMMARY PROCEEDINGS, 2-4.
CREDITORS' ACTION.
1. Where judgment debtors, after verdict rendered but before judgment entered, transferred possession of the real estate to
a mortgagee, and also the title to a large amount of unencumbered personal prop- erty, but continued in possession as his agent, by virtue of the agreement, and the real estate was encumbered by apparent liens nearly equal to the full value of the land, though some were alleged to have been paid, a complaint setting forth these facts and alleging that the agreement or transfer was made with intent to hinder, delay and defraud the plaintiff, and that execution had been returned unsatisfied, and praying for a discovery, account and a receiver, sets forth a good cause of action: (1) for a discovery under section 1871 of the Code; (2) there is no complete and adequate remedy at law under the section; (3) on the ground of collusion and fraud.- Mead v. Stratton et al., 44.
See ATTORNEYS, 5; LIMITATIONS, 2; PLEAD- ING, 3.
COVENANT.
See DEEDS, 7, 12, 19, 20. CRIMINAL LAW.
1. A criminal charge may be resubmitted to the grand jury under $270 of the Code of Criminal Procedure as often as the court may so direct.-The People v. Lynch, 9.
2. A non-expert witness when examined as to facts within his observation or knowl- edge tending to show soundness or un- soundness of mind of another may char- acterize as rational or irrational the acts and declarations to which he testifies.-The People v. Conroy, 242.
3. Where an indictment consists of two counts, only one of which is submitted to the jury, a reversal by the General Term of a conviction thereon, on the ground of insufficiency of the evidence under that count, will not be interfered with, although the evidence authorized a conviction under the other count.-Id.
4. The objection that an indictment does not conform to $275, 276, Code Crim. Pro., can only be taken by demurrer.-Id.
5. Upon the trial of an indictment the prisoner was not formally arraigned, nor did he for- mally plead. He was present with counsel at the trial, made no objection to the failure to arraign, nor did he request to plead. After verdict these objections were first raised by a motion in arrest of judgment. Held, That they were untenable, no sub- stantial right of the prisoner having been taken away, and that the question was not a proper ground for a motion in arrest of judgment.-The People v Osterhout, 293.
See ABORTION; ASSAULT; BASTARDY; BAWDY HOUSES; BLACKMAIL; BURGLARY; FOR-
GERY; MURDER; OLEOMARGARINE; PER JURY; SUNDAY.
See CIVIL DAMAGE ACT, 3; CONTRACT, 4, 8, 17, 23; DEEDS, 20; EMINENT DOMAIN, 8, 11; EVIDENCE, 13; FRAUD, 13; RAIL- ROADS, 8; SLANDER, 3; TRADE SECRET, 2; TRESPASS, 3, 5; WARRANTY, 1.
1. Defendant gave to one P. a deed of cer- tain property owned by him, which though absolute upon its face was understood to be held as security for a debt owing by him to P. P. subsequently gave a deed of the said property to plaintiff, who had knowledge of the character of the convey- ance to P. In an action of ejectment, Held, That the deed to P. operated only as a mortgage and that the deed of P. to plain- tiff was no more than an assignment of said mortgage, and that the title to the property remained in defendant.-Berdell v. Berdell, 81.
2. The grantee named in a deed, the descrip- tion in which erroneously omits a portion of the premises intended to be conveyed, is the equitable owner of the portion of the premises so omitted, and the sale of such premises upon the foreclosure of a mortgage upon them, executed by such equitable owner, conveys to the purchaser upon such sale his equitable title and also a legal title acquired by him subsequently to the exe- cution of the mortgage.-Smyth v. Rowe et al., 98.
3. In 1848 the city deeded certain water lots to the owners of the adjacent upland, the deed containing a covenant by the grantee to build, within three months after being required to do so, and not until so required, bulkheads, wharves, streets, etc., and it also provided that on failure to do so the city might do the work at the grantee's ex- pense or re-enter. The grantee and his successors proceeded to make and gain the land for twenty years under the direction of the city officials. Held, That the deed conveyed an absolute title, subject only to be defeated by a breach of the conditions; that a failure to fill in all the land was not a defense to an action for eviction and in- jury to the land; that the forfeiture might be waived by the city or the time extended, and that there was such a waiver; that the condition in the deed and the limitation in the ordinance of 1844 apply to the streets and not to the lands outside of them.- Duryea v. The Mayor, &c., of N. Y., 103.
4. The grantee gave to the city, without con- sideration, a written license to change the outlet of a sewer so that it would discharge over the land outside of the street. Plain- tiff on becoming the owner revoked said license and proceeded to fill in his land,
whereupon the city prohibited his doing so, as obstructing the outlet of the sewer. Held, That the license was revocable at the pleas- ure of the owner.―ld.
5. The deposit of materials upon a lot for the purpose of making land constitutes such materials a part of the real estate, and the same right of action exists for an injury thereto as would accrue for similar inju- ries to the natural land.-Id.
6. The ordinance of 1856, fixing an exterior water-line and authorizing the adjacent owners to fill up to that line, although annulled by Chap. 763, Laws of 1857, so far as it attempted to establish an exterior line, was a sufficient authority and consent to fill up to the line established by the Act of 1857 to meet the requirements of the limita- tion in the Sinking Fund Ordinance.-Id.
7. A right to build into the wall of a building for support is an incumbrance within the meaning of a covenant against incum- brances.-Merrill v. Clark et al., 204.
8. Where a man, in what he believes to be his last sickness and in view of approaching death, deeds his property to his wife through a third party, without considera- tion, at his wife's request, she representing to him that by so doing he will save the expense of administration on his estate, and he subsequently recovers, he can main- tain an action to revoke said deed, and a complaint alleging said facts states a good cause of action.-Houghton v. Houghton et al., 232.
9. Plaintiff's ancestor, B., sold certain land to a cemetery association by deed, which pro- vided that the grantee should pay to B. a certain sum for each lot sold by it for a burial-place; that B. should be entitled to the grass and products of all parts which re- main unsold until all the lots were sold and had interments therein, and that in case the grantee should fail to fulfill any of the prem- ises on which the land was granted the right of soil of all lots without interments should revert to B., his heirs, etc. No lots were sold and B. and his heirs remained in possession until dispossessed by defendant, claiming under a deed executed on sale un- der execution against the association. Held, That no title passed to the grantee under this deed to which judgments against it could attach; that the deed was not absolute but conditional.-Bennett et al. v. Culver, 259.
10. One F., in 1851, deeded a certain hotel property to plaintiff's grantor, with all the right, title, etc., to and of all the water now used on said premises, or to which said F. may be entitled by use, reservation or agreement with the N. Y. & E. RR. Co., or otherwise. The agreement referred to was in a deed to the RR. Co., which con- veyed a right to draw water for depot pur- Vol. 20.-No. 25d.
poses, reserving the surplus water not re- quired for that purpose. Held, That the deed to plaintiff's grantor did not convey all the surplus water, but only so much as was then used on the premises conveyed; but that plaintiff's title to that portion of the surplus was prior to the right of any other person to whom similar rights were afterwards conveyed, and that in case of a deficiency plaintiff was entitled to his sup- ply first.-Read v. The Erie R. Co. et al., 335.
11. A deed or mortgage cannot be held void by reason of vagueness or uncertainty if by any particulars in the description the thing granted can be sufficiently ascertained to enable the court to say that the words chosen by the parties were intended to re- late to it. The People ex rel. Myers V. Storm, 338.
12. The widow and heirs of one C. conveyed certain premises by warranty deed to de-
fendants, who gave back a mortgage.
Thereafter the premises were sold by order of the Surrogate for the payment of the debts of C. and defendants purchased on the sale. In an action to foreclose the mortgage, Held, That there was a construct- ive eviction and a breach of the covenant for quiet enjoyment, and that plaintiff was not entitled to recover.-Tucker v. Cooney et al., 406.
13. A deed to one L., from her father-in-law, purported to convey certain premises in fee and declared that it was given to enable her to sell and convey them in fee simple if she should so desire; it then contained a cove- nant on the grantee's part, that upon a sale she would invest the proceeds in good se- curities, and on her death convey the premises or the proceeds to children born of her marriage with the grantor's son. Held, That L., took only a life estate, and issue having been born of the marriage a valid remainder was created which vested on the birth of the issue; that the power of sale in the deed was a power in trust which could only be exercised by the grantee and could not be delegated to her executor. Coleman v. Beach, 410.
14. When a person takes a deed of certain real property as security for advances to be made in discharging incumbrances thereon, or under an agreement to reconvey said property on repayment of such advances, he cannot, either directly or indirectly, acquire the incumbrances and through their foreclosure obtain an absolute title.-— Miller v. McGuckin et al., 429.
15. There is no exacting or unyielding rule as to the evidence required to establish that a deed, absolute in its form, is merely a mortgage. All that is necessary is that the proof shall clearly and satisfactorily main- tain that fact.-Id.
16. When a person takes a deed of certain real property under an agreement to reconvey the same upon repayment to him within a certain time of moneys advanced by him, a failure to make such repayment within the specified time does not deprive the party entitled to the reconveyance of that right, provided time is not of the essence of the contract and the delay is excused and the situation of the parties or the property is not changed so that injury will result, and the enhancement of the property in value does not change such situation.-Id.
17. In such a case, in order to put the party entitled to re-conveyance in default, the other party must present his account and call upon the first party to fulfill the agree- ment by refunding the sum due.-Id.
18. A purchaser of real property, in examin- ing the title thereto, is bound to consult only the judgment in an action of foreclos- ure involving it, and when it thereby ap- pears that the sale of the property had been regularly authorized, not even constructive notice can be imputed to such purchaser of anything contained in the pleadings.—Id.
19. Where the owner of a parcel of land en- cumbered by two mortgages, for both of which he was also personally liable, con- veyed a portion to defendant, who assumed and agreed to pay them as a part of the purchase price, and afterwards conveyed the remainder to B. by a quit-claim deed; and upon default in payment the mortgages were foreclosed and the whole parcel sold to satisfy the mortgage debts, Held, That B. was entitled to maintain an action upon the covenant to recover the value of the parcel lost to him by reason of defendant's failure to pay the mortgages and the conse- quent foreclosure sale.- Wilcox v. Campbell,
20. The measure or rule of damages is the value of the parcel lost to B. at the time of its sale under the judgment of foreclosure, it being less than the amount of the mort- gages.-Id.
21. Where a deed is executed and delivered to a husband and wife both are seized of the entirety, and neither is severally seized of any interest in the property, and each is incapable by means of his or her sole deed to convey any present right or interest in the property to his or her grantee -Bram v. Bram et al., 519.
22. A deed of conveyance made by husband to wife directly for a more nominal consid- eration passes no title, legal or equitable. So held, in a case where the husband con- veyed to his wife and after her death con- veyed the same premises to his own child, and the illegitimate son of the wife, her only heir at law, made claim to the property.- Johnson v. Rogers et al., 568.
See EASEMENT, 1-4; TRUST, 2, 3.
See BROKERS, 6; CORPORATIONS, 2; DEEDS, 3; ESTOPPEL, 4; FIRE INSURANCE, 21; INDEMNITY, 2; LIFE INSURANCE, 1.
1. An affidavit may be made by an attorney who knows the facts for a party who seeks to examine an adverse party under § 870 of the Code.-Lane v. Williams et al., 16.
2. An examination of a defendant before trial cannot be ordered for the purpose of ob- taining proof that his signature to the cer- tificate of incorporation of a certain corpo- ration is genuine, when it is not denied that such signature was acknowledged as required by law.-Nott v. Clews, 274.
3. An examination of a defendant before trial cannot be ordered for the purpose of ascer- taining facts which the plaintiff can learn from other sources which are accessible to him.-Id.
4. A party cannot be examined before trial for the purpose of obtaining admissions.-Mc- Mahon v. The Brooklyn City RR. Co., 404.
5. A statement in the affidavit that the exam- ination is desired for the purpose of using it on the trial is not equivalent to a statement that the applicant desires to offer or read it in evidence on the trial. – Id.
6. The court, at Special Term, on notice, may vacate an ex parte order of a judge.—Id.
1. In an action brought by an administrator to recover compensation for the use and occu- pation of certain premises belonging to his intestate, in which the defense was that for a portion of the period for which such com- pensation was claimed the premises had been occupied by a corporation, and that such corporation had paid the rent there- for, plaintiff moved for a discovery of the receipts given to such corporation for said rent, which he alleged were in the pos- session of defendant, who had been one of its officers. Defendant denied that such receipts were in his possession, but ad- mitted that certain receipts of that charac- ter were in the possession of his attorney. Held, That plaintiff was not entitled to a discovery of said receipts.-Douglas v. Delano, 85.
2. The administrator of a deceased partner is entitled to a discovery and inspection of partnership books, etc., with leave to take copies, for the purpose of framing a com- plaint for an accounting and settlement of
the partnership affairs, notwithstanding the articles of agreement provide that the sur- vivors should carry on the business until the expiration of the time limited for the existence of partnership, and that all the property should remain and continue in the business; nor is it necessary to aver that the books contain entries showing any in- debtedness to the deceased or show any violation of the partnership agreement or disclose any matters in respect to which a discovery is sought.-Newman v. Newman et al., 283.
3. If a co-administrator, being also a surviv- ing partner, refuses to join in such an action he may be made a defendant both as admin- istrator and individually.-Id.
4. In an action against the principal and sureties on a tax collector's bond, to re- cover the amount of taxes collected and not paid over, the plaintiff is entitled to a discovery and inspection of the assessment roll and warrant in the possession of the principal, for the purpose of ascertaining the amount collected, and to enable plain- tiff to frame its complaint, etc.—The Board of Education of Union School No. 1 v. King et al., 494.
See CREDITORS' ACTION.
1, An order directing the payment of alimony by the husband to the wife cannot be made after the entry of a decree of separation making no provision therefor; but pro- vision for the support of children may be made, under 2 R. S., 147, § 59.-Erkenbrach v. Erkenbrach, 4.
2. Under 59, tit. 1, ch. 8, part 2 R. S. the court may, after the entry of a decree of divorce, make an allowance for the support and education of the children of the mar- riage. — Washburn v. Catlin, 12.
3. The sums directed by a decree of divorce to be paid to plaintiff for her support and maintenance may be reached by her credit- ors on supplementary proceedings and pay- ment thereof by the defendant to a receiver appointed in such proceedings discharges his liability therefor.-Stevenson v. Steven- son, 182.
1. Intention alone is not sufficient to change or create a domicil; the fact of residence must concur with the intent.-Huntley v. Baker, 226.
1. The provisions of § 12 of Chap. 888, Laws of 1869, as amended in 1871 and 1881, are to be construed as making the order of the County Court final upon matters of fact, but liable to appeal upon any question of law arising upon the whole act or upon any proceeding necessarily affecting the order. —In re petition of Swan, 325.
1. D. owned a tract including plaintiff's lot and the land now known as Garden street. In D.'s deed of plaintiff's lot it was described as abutting on said street. Held, That D.'s grantee acquired an easement in the street, independent of the public right to use it, which could be taken from him only by the exercise of the right of eminent domain. Plaintiff is entitled to an injunction re- straining an interference with his said right, and to recover damages suffered thereby.-Fanning v. Osborne et al., 113.
2. Plaintiff's grantor purchased a piece of land of defendant, relying on his representation that a strip of land along the south bounds was a street and should be opened and continued as such. The deed contained no reference to the street, but it was there- after opened by defendant. Held, That de- fendant, by opening the street in pursuance of his agreement, appropriated the space as a way appurtenant to the premises, and could not subsequently recall the dedica- tion.-Newman v. Nellis, 291.
3. Such way, being an apparent easement, passed to plaintiff by a deed conveying the premises by metes and bounds, although the word appurtenances was not used. · Id.
4. When there has been an easement with a servient and dominant tenement, and the ownership of both tenements has been vested in the same person, and the owner- ship is again severed by the conveyance of the servient tenement without any reference whatever being made to the servitude pre- viously existing, but the property is con- veyed in the same manner and by the same terms as though the servitude had no ex- istence, the grantee takes such property unencumbered by the easement.-Scrymser v. Phelps, 314.
5. Where various persons threaten to float large numbers of logs down a non-navigable stream and to use its banks while doing so, claiming the right to do so whenever they chose, the owner of lands through which the stream flows may maintain an action to quiet his title and to enjoin the threat- ened injury, and all such persons may be united as parties defendant.-Meyer v. Philips et al., 326.
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