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acts of wilful neglect, but did cide that if defendants assessed not lay them as corrupt.
real estate at less than its full valT. A. Read, for applts.
ue that this would amount to a J. I, Curtis, for the People. a neglect under $ 29, supra. That
Held, That, assuming the count section is evidently intended not of the indictment charging a cor- as a penalty for misconduct, but rupt act was good, error was com- for neglect to act at all. mitted in the exclusion of evi. Judgment and conviction redence. The defendants would be versed and new trial granted. entitled to show that they acted in Opinion by Learned, P. J.; good faith. It was error to ex- Boardman and Bockes, JJ., conclude evidence that defendants cur. consulted a lawyer as to their right to reduce an assessment without
APPEAL. PRACTICE. EVI. swearing the applicant, one of the
DENCE. the acts charged ; also that the defendant assessor believed he had a N. Y. SUPREME COURT. GENERAL right to reduce the assessment.
TERM. FOURTH DEPT. Thus it the indictment or any
Mary Doyle, applt., v. The Recount was for corruption in office
corder Printing Co. of Fayetteville, there was error in excluding evi
respt. dence; for the People claim that though acting judicially the as- Decided Oct., 1883. sessors could be indicted for cor
There being a question whether two suits ruption. 50 Barb., 573 ; 15 Wend., were brought on one cause of action, and 277.
the judge below having given credence to But the People claim that in re
declarations of plaintiff's attorney as repfusing to examine Wheeler when
resented in the moving affidavits, rather
than to the averments in the opposing affihe applied to have his assessment
davits, the court sees no reason to disturb reduced the defendants acted his conclusions; and objections to the naministerially and that for such re
ture of evidence cannot be raised, for the
first time, on appeal. fusal or neglect they are liable without regard to intent, 1 Denio., Appeal from order of Special 457, and they rely on 2 R. S., m. p. Term, staying plaintiff's proceed696, $ 38. This section applies only ings herein until defendant's costs to cases where no special provision in a former action, begun by the is made for punishment. By 1 R. same plaintiff, are paid. S., m. p. 394, $ 29, a special pro- The former action having been vision is made for the punishment dismissed before service of comof an assessor for wilful refusal or plaint therein, a question arose neglect, viz.: a penalty of $50, upon the motion which resulted in and to this extent only in such the order now appealed from, case is he liable; for every wilful whether the two suits were brought refusal or neglect is not corrupt. ' upon the same cause of action. See 1 Denio, 457. We do not de. The complaint in the present case is for an alleged libel published in DEED. CONDITION. IN. June, 1882. The first action was
JUNCTION, begun subsequently to such publication, and plaintiff claims, in the N. Y. SUPREME COURT. GENERAL affidavits read by her in opposi
TERM. FOURTH DEPT. tion to the motion, that snch suit Francis E. Erwin, appll., v. was not brought to recover dam- Artemas B. Hurd et al., respts. ages for the alleged libel, but to
Decided Oct., 1883. procure an injunction restraining defendant from libelling plaintiff. Where a church society accept a deed of a S. J. Bellington, for applt.
lot, with the provision therein that the A. W. Wilkin, for respt.
grantees should keep erected on the lot a
church building to be used as specified, and Held, The judge at Special Term
with the condition that if at any time said seems to have believed the declara- lot should be left vacant for two years, the tions of plaintiff's attorney, as
title should revert to the grantor, Held. sworn to in the moving affidavits,
That the grantor, a pew-holder, cannot, by
injunction, restrain the society from selling to the effect that the two actions
the church building; his remedy is re-entry were for the same cause, rather or ejectment; and the grantees are under than the averments in the oppos
no covenant to keep the building erected ing affidavits, and we see no rea
on the lot conveyed. son to disturb his conclusion.
Appeal from order of Special The only question decided in Term, vacating an injunction order. Phelps v. Gee, 29 Hun, 202, cited Action to restrain the threatened by appellant, does not appear to sale and removal of a church buildhave been raised in the present ing situated on a lot conveyed by case at Special Term. Objection plaintiff to the trustees of the First to the nature of the evidence by Presbyterian Society of the village which defendant sought to show of Painted Post. Plaintiff contends the cause of action for which the that the threatened acts will defirst suit was brought cannot now feat the uses for which said conbe raised for the first time.
veyance was made, as expressed Plaintiff's claim that the motion therein, and will annul the right should have been denied because of plaintiff, as grantor and as pewno demand had been made for holder in said church, to have said payment of the costs in the former lises preserved. Said trustees and action and no execution had been the proposed purchaser are the issued to collect the same, and that defendants. Plaintiff's deed prodefendant was guilty of laches in vided that “the grantees shall not making the motion at the first keep erected” on the lot conveyed opportunity, cannot be main- “a good, sufficient and convenient tained.
church," to be used and occupied Order affirmed, with $10 costs in the manner therein specified ; and disbursements.
with the condition that, if at any Opinion by Smith, P. J.; Har- time said lot should be left vadin and Barker, JJ., concur. cant for two successive years
without any good and sufficient | ligation might be enforced by the building, as aforesaid, thereon, grantor; consequence which the title should revert to the cannot reasonably be supposed to grantor. About the time of the have been intended. Doubtless execution of the deed there was the society might rebuild in such built on the lot a good and suffi- case, and if they did so within cient church, which the grantees two years, their title would reand their successors kept so erect- main good ; but it would be oprd to the time the action was be- tional with them. 16 Johns., 47; gin. Before commencement of 1 Kern., 376, 387. the action, the trustees, under a Order affirmed, with $10 costs county court order, contracted to and disbursements. sell the building to defendant Opinion by Smith, P. J.; HarSmith, to be removed from the lot, din and Barker, JJ., concur. for $400, which they proposed to apply on the cost of a new church recently built by them on another CORPORATIONS. DIVI. lot in the same village.
DENDS. cial Term vacated the injunction
N. Y. COURT OF APPEALS. order on the grounds that the society held the title to the lot upon Brisbane, applt., v. The D., L. a condition subsequent, only, for & W. RR. Co., respt. breach of which the remedy is re
Decided Dec. 4, 1883. entry or ejectment, and that plaintiff's interest as a pew-holder does Defendant issued certain stock transferable not entitle hin to maintain the
only on presentation of the certificate to
one B., who transferred the same to plainaction.
tiff and afterwards died. Thereafter the George T. Spencer, for applt. stock was transferred to B.'s administraGeorge B. Bradley, for respts. tor, although he did not produce the certiHeld, We concur in the views of ficate. In an action to compel the issue of
scrip and the payment
dividends de Special Term ; but the opinion of
clared thereon, Held, That defendant in makthe judge below does not advert to
ing the transfer took the risk of the adminithe suggestion of appellant's coun- strator being the owner, and as it appeared sel, that the grantees, by accept
that he was not, defendant was liable to
plaintiff for the stock; but that the diviing the deed, covenanted to keep
dends were payable to the person in whose the building erected on the lot
name the stock stood on the books of the conveyed. The keeping of a build- company in the absence of notice of a ing erected was made a condition
change of title or a transfer, and the failure
of the administrator to produce the certifiupon which the society's title de
cate was not such a notice as to subject pended, but there was no covenant
his right to collect the dividends to suson its part to perform such condi- picion, and hence defendant was not liable iion. Otherwise, the society would
for dividends paid to such administrator.
Affirming S. C., 13 W. Dig., 184. be bound to rebuild as often as the building should be destroyed by
This action was brought to fire, or other means, and such ob- pel defendant to issue scrip for
certain shares of stock to plain-ministrator to present the certifitiff, and to pay him certain divi- cate was not such a notice, at the dends which had been declared time the dividends were received, thereon. It appeared that a certi. as subjected the right to collect ficate for such shares had been the same to suspicion or as reissued by defendant to the ad- quired the defendant to make inministrator of B., notwithstand quiry thereto. ing the fact that no scrip was pro- Judgment of General Term, afduced showing that B. held the firming judgment of Special Term, stock at the time of his death. , affirmed. Plaintiff produced a transfer of Opinion by Miller, J.
All collthe shares to him by B. By the cur. terms of the original certificate to B. it was only transferable upon
INTEREST. production of the same.
N. Y. COURT OF APPEALS. proof showed that B. did not own
Sanders, respt., v. The L. S. & this stock at the time of his death.
M. S. RR. Co., applt. The dividends claimed were from time to time paid to the admini- Decided Dec. 14, 1883. strator of B. No notice had been
In a case where interest is only allowed a given by plaintiff to defendant in damages the legal rate must govern.
The action was for dividends which defendregard to the stock belonging to
ant unjustly withheld from plaintiff. Held, him.
That interest was allowable solely as damA. N. Weller, for applt.
ages and should be computed at 7 per cent. Hamilton Odell, for respt.
to Jan. 1, 1880, and at 6 per cent. from that Held, That the certificate to B.
time. not having been produced when This was an appeal from a judgthe stock was transferred to his ment of General Term, affirming administrator, defendant took the a judgment for plaintiff for risk of the administrator being $5,240.10 and $429.46 costs; the the owner thereof, and, as the sum of $5,240.10 being made up proof showed he was not, defend- of a claim for arrears of dividends, ant was properly held liable for $2,436.67 principal, and interest the stock to plaintiff to whom the from Aug. 1, 1867, to date of de scrip had been transferred. The cision, January 7, 1881, at the dividends were properly payable rate of seven per cent. Defendto the person in whose name on ant's counsel claims that the inthe books of the company the terest should have been computed stock stood, or his legal repre- at the legal rate, to wit: at seven sentatives, in the absence of notice per cent. to January 1, 1880, and of a change of the title or a trans- then at six per cent. from that fer of the stock, or such knowledge time to January 7, 1881. or information as would put it Edward S. Rapallo, for applt. upon inquiry as to the ownership Birdseye, Cloyd & Bayliss, for thereof. The failure of the ad.' respt.
Held, That the claim was well | individually, and as the proprietor fonnded; that the interest was al- of a grocery store. The complaint lowed, not by virtue of any con- alleged that by reason of the pubtract to pay interest, but simply lication plaintiff had been greatly as (lamages because defendant injured in his business as a mer. was in default in the discharge of chant and had suffered pecuniary its obligation to plaintiff and loss thereby, to wit, to the amount wrongfully withheld money due of $5,000. Upon the trial plaintiff him. In such a case where inter- was asked whether immediately est is allowed as damages the le. after the publication of the article gal rate must govern.
1 Hoff. alleged to be libellous his business Ch., 294 ; 10 Paige, 49; 18 N. Y., fell off. This was objected to and 35; 43 id., 244; 53 id., 586; 89 id., the objection was overruled, and 412; 31 N. J. Eq. (4 Stew.), 91: - plaintiff answered that it did. He Southerland on Damages, 581, then testified as to the amount of 666.
his sales per diem up to the time Judgment of General Term, af- of the publication of the article in firming judgment for plaintiff, question, and he was then asked modified by striking out excessive the amount of his sales immediateinterest, and, as modified, af- ly after. This question was objected firmed.
to and the objection overruled and Opinion by Earl, J.
exception taken. Plaintiff then answered, stating what his
sales were on week days and what LIBEL. EVIDENCE. DAMAGES
on Sundays. He was then asked
as to the amount of sales on SunN. Y. COURT OF APPEALS. days immediately before the pub
lication. This question was also Bergman, respt., v. Jones, applt. objected to, overruled and excepDecided Nov. 20, 1883.
tion taken. The objections were
general in their character, and A party injured has a right to recover special stated no specific ground. damages when a claim therefor is properly B. F. Einstein, for applt. made in the complaint.
Benjamin Estes, for respt. When the falseness of a libel is proved, it is sufficient to warrant the jury in giving ex
Held, That the evidence was emplary damages.
A party in Where the plaintiff has proved that the re- jured has a right to recover special ceipts in his business had fallen off since damages when a claim for the the publication of the libel, he has a right to show that he has endeavored to counter
same is properly made in the comact its effect and in doing so met with oppo- | plaint. sition attributable to the publication of the Where there is a general objeclibel.
tion to evidence and it is overruled, This was an action for libel. and the evidence is received, the The article was libellous on its face ruling will not be held to be erroand assailed plaintiff's character 'neous unless there be some grounds
Vol. 18.-No. 7b.