Page images



able nndervaluation creditors have note by Charles, but none by de. no right to interfere to disturb the fendant, conveyance. This case falls within

C. H. Luscomb, for applt. the latter rule.

Armstrong & Fosdick, for respt. Judgment reversed and new trial Held, That since the decision of granted, with costs to abide event. Wheeler v. Warner, 47 N. Y.,

Opinion by Dykman, J.; Bar- 519, it has been beyond doubt, nard, P. J., and Pratt, J., con- in this state, that a promissory

note payable on demand is due

forth with, and an action thereon PROMISSORY NOTES. LIMI. against the maker is barred by TATION.

the statute of limitations if not N. Y. SUPREME COURT. GENERAL brought within six years after its

date. Further, it is also settled TERM. SECOND DEPT.

that to revive a debt so barred by James Dunning, applt., v. Mary the statute there must be a new J. Powell, respt.

promise to pay made by the party Decided Sept., 1883.

to be charged or his authorized agent; that there is

no agency A promissory note payable on demand is between joint debtors, and that due forthwith and an action thereon against the maker is barred by the statute unless partial payments made by one do brought within six years from its date.

not bind his co-debtors. 2 N. Y., Partial payments made by one of two joint | 527; 18 id., 558; 53 id., 442. These debtors will not revive the debt as against principles are decisive of this case the other,

against plaintiff. The claim of Appeal from judgment in favor plaintiff that

the transaction of defendant.

amounted to a simple deposit of Action on a promissory note in money upon which the statute the following form :

runs only from the time of actual " Farmingdale, April 1, 1869. demand cannot be allowed. On demand

we severally and Judgment affirmed, with costs. jointly promise to pay unto Ann Opinion by Dykman, J. ; BarDunning or order six hundred and nard, P. J., and Pratt, J., con1906 dollars for value received, with cur. interest at the rate of six per cent.



N. Y. SUPREME COURT. GENERAL The note was transferred to

TERM. SECOND DEPT. plaintiff Sept. 10, 1878, and this action was brought between April

Mary F. Geraty, respt., v. Ben22 and May 4, 1882, against Mary jamin Stern et al., applts. J. Powell alone. Defense, the Decided Sept., 1883. statute of limitations. It appeared

Defendants instructed their employees not to that payments were made on the show styles or give prices to persons who

until paid.

came from other stores to look at styles or his master's business the latter is obtain prices. Defeudants' floorwalker, responsible. 46 N. Y., 23. judging plaintiff to be such a person, ordered the saleswoman to take from plain

In this case there can be no claim tiff's person a cloak which she was trying that the employees were prompted on and this was done. Held, That this was by malicious motives or selfish an assault for which defendants were liable.

aims. Their action was in the line Appeal from judgment in favor of their duty as they understood of plaintiff.

it. The duty to act was cast on Action to recover damages for them then and there. Here an ill treatment amounting to an as- emergency arose where a case covsault, alleged to have been received ered by the instructions was preby plaintiff at the hands of the sented, as they believed, and the employees of deferdants.

duty of deciding was imposed on The evidence justified the jury them. They may have decided in finding that plaintiff went to de- unwisely, but their decision and fendants' store in New York city action were clearly within the line to purchase an ulster for herself; of their duty and defendants are that after she had examined it and responsible for the resulting contried it on preparatory to pur. sequences. It was for no selfish chase, defendants' floorwalker ap- purpose that they submitted plainproached and told her she did not tiff to indignity, but to serve de- , want to purchase the garment and sendants only, and if they devolve used language to indicate that she the duty of carrying out their inwas a spy from a rival house and structions on their employees they directed the saleswoman to take must be held responsible for the the cloak from off plaintiff, which manner in which it is done. was done.

Judgment affirmed, with costs. It appeared that defendants had

Opinion by Dykman, J.; Barinstructed their employees not to nard, P.J., and Pratt, J., concur. show styles or give prices to persons who came from other stores to look at styles or obtain prices.


EVIDENCE. Vanderpoel, Green & Cuming, for applts.


TERM. FOURTH DEPT. C. D. Rust, for respt. Held, That the act complained tate of Anthony Wasser, deceased,

In re disposition of the real esof amounted to an assault and that defendants are responsible for the

for payment of his debts. misconduct of their employees.

Decided Oct., 1883. The liability of masters is not Where a minor son enlists with his father's measured entirely by their instruc- consent bounties paid the son are his own. tions to their servants. If the act Matters set up by defendant in his answer, by

way of defence only and not as ground of of the servant be within the scope afirmative relief, are not conclusive upon of his authority and committed in him in a subsequent action.

Appeal by two heirs of deceased Strong & Brendel, for applts. from a surrogate's decree, directing Martin Clark, for respt. sale of decedent's real estate to pay Held, That the father having his debts, upon petition of Matthew consented to the enlistment of his Wasser, administrator of decedent son, the bounties belonged to the with will annexed.

latter. 50 Barb., 351, S. C. affd., The surrogate found that during 47 N. Y., 245; 56 N. Y., 76. the war of the rebellion petitioner, Brown v. Town of Canton, 49 who was then a minor living with N. Y., 662, distinguished. his father, the decedent, enlisted We cannot say that any of the in the United States service, with findings were against the weight of his father's consent, and received evidence. certain bounties which he de- The attitude of the defendant in posited with his father until such the partition suit does not bar the time as petitioner should call for present action. The matters set them; that, afterward, several up in the answer were alleged by payments were made to petitioner way of defence only, and not as by his father, one of which was ground of affirmative relief. Almade in 1878, and that the balance though it has been said that a simbad never been demanded. The ple contract debt is a sort of statusurrogate adjudged that there was tory lien upon the real estate of the due petitioner the balance of the deceased debtor during the time deposit, with interest from the limited for a proceeding by the filing of the petition. Prior to executor or administrator to pro.

this proceeding the contestants cure a disposition of the land for · herein brought an action of par. payment of debts, 1 Barb., 75; 16

tition, in which this petitioner id., 193, yet jurisdiction to enforce was made a defendant, and his such lien is conferred by statute answer therein contained three upon the surrogate alone. 2 R. S., counts: The first was a denial. 100, SS 1 et seq. ; Code Civ. The second set up the existence of Proc., SS 2750 et seq. His juristhe present claim, calling it a loan, diction of that subject is excluand alleged that it was equal in sive. ainount to the value of the land If the transaction was a loan, the sought to be partitioned, and that last payment took it out of the said Matthew was about to take statute of limitations. The burden steps to establish said claim and of showing payment was on the procure a sale of said premises to contestants. satisfy it. The third count averred If the equitable title is in pethat Anthony bought the premises titioner the only result is that he is described in the complaint with asking to dispose of his own land Matthew's money and for his for the payment of his father's beuefit, but took the title in his debts, to which his co-heirs cannot own name,under an agreement that well object. Matthew was the equitable owner. Decree affirmed, with costs.

Opinion by Smith, P. J.; Har- | next election in December, 1882, din and Barker, JJ., concur. when he was elected to the office

by the electors.

J. H. Stanbrough, for applt. SALARY.

C. W. Pleasants, for respts. N.Y. SUPREME COURT. GENERAL Held, That while it may be true TERM. SECOND DEPT. that relator was elected simply for

the unexpired term of his predeThe People ex rel. Smith, appll., cessor, yet his term as said justice v. The Trustees of the Village of commenced in January, 1883, and Flushing, respts.

so the resolution reducing the salDecided Sept., 1883.

ary was passed more than two On the resignation of the police justice of the months before the commencement village in April, 1882, the trustees passed a

of such term. As to him thereresolution reducing the salary and appointed fore the salary was diminished in relator to fill the vacancy until the election pursuance of the statute and he can in December, when he was elected to the ask for no more. office. Held, That although he was elected to fill a vacancy his term commenced Jan.

Order affirmed, with costs and uary 1, 1883, and that the resolution having disbursements. been passed more than two months prior

Opinion by Dykman, J.; Pratt, thereto the salary was diminished as to him

J., concurs. pursuant to statute. Appeal from order denying ap

EXTRA ALLOWANCE. plication for a mandamus to compel respondents to audit and pay N. Y. SUPREME COURT. GENERAL the salary of relator as police jus- TERM. FOURTH DEPT. tice of the village at the rate of

The $1,000 instead of $500.

Remington Paper Co., The statute fixes the salary at applt., v. Anna M. O'Dougherty $1,000, but the same section pro

et al., respts. vides that the trustees may by One A., a mortgagee, was made a defendant resolution from time to time in- in an action to set off certain judgments

obtained by plaintiff against the mortgacrease or diminish such salary for

gors against judgments obtained by them the term of office of such justice to

ugainst plaintiff, and to have said judg. commence after the passage of ments satisfied out of the mortgaged propsuch resolution, provided such erty. A. succeeded and obtained judgresolution be passed at least two

ment that the lands be sold, his debt paid

therefrom and the surplus, if any, applied months before the commencement

on plaintiff's claims. Held, That an extra of such term."

allowance to A. could only be computed One F. resigned his office as on the amount of plaintiff's claim and not

on the amount of the mortgage. police justice about April 1, 1882. The trustees thereafter Appeal from order awarding to fixed the salary by resolution at defendant O'Brien "an extra al$500 a year and then appointed lowance of $250 to be taxed against relator to fill the vacancy until the plaintiff.”

Action to collect and enforce | LEASE. COVENANT. DAM. five judgments, amounting to

AGES. $734.38, recovered by plaintiff

N. Y. SUPERIOR COURT. GENERAL against the O'D.s and to set them

TERM. off against four judgments recov.

Alfred A. Sparks, applt., v. ered by the O’D.s against plaintiff.

George W. Bassett, respt. O'Brien held a deed from the Decided June 2, 1883. OʻD.s, absolute in form, purport- Where the landlord covenants with the ing to be in consideration of $5,000,

tenant to make certain repairs upon the

demised premises on or before a specified which plaintiff attacked as fraud

date the damages to the tenant for failure ulent. Plaintiff sought to enforce

to fulfill such promise are to be assessed as his judgments out of the lands of the time of the breach, viz., the date covered by the deed and out of the specified for making said repairs; and O'D.s' property generally.

where the tenant has suffered no special

injury are limited to such an amount as The referee found that the deed

would compensate him for himself making was not fraudulent, but was a such repairs, notwithstanding that he may mortgage; that there was due have been obliged to pay a third person O'Brien $5,361, and that he was

damages caused after said date by failure

to make such repairs. the owner of the four judgments and entitled to collect them, and ordered the lands sold by the order granting motion for a new sheriff and the avails thereof first trial, made by defendant after verapplied to O'Brien's claim and in- dict for plaintiff. terest; the surplus, if any, to the

The action was for damages for payment of such costs as plaintiff a breach of covenant to repair. shall pay to defendants and to Plaintiff had a verdict. Defendplaintiff' s judgments; the surplus, ant moved for a new trial upon if any, to be paid to Mrs. O'D. the minutes of the judge, which Elon R. Brown, for applt.

motion was granted. Defendant,

in his agreement of letting to O'Brien & Emerson, for respts. / plaintiff, covenanted to make

Held, That the extra allowance the following repairs in said should have been computed upon premises before January, 1881, the amount of plaintiff's judg- on the first floor: to do the work ments. 15 W. Dig., 530. See also in the water-closet and wash-stand, 24 Hun, 551, and cases cited.

and put the plumbing in perfect So much of the order as awards condition." an allowance exceeding 5 per cent.

Plaintiff gave evidence to show on $734.38 and interest reversed, that defendant did not at any with $10 costs and disbursements. time make the repairs ; that

the washOpinion by Hardin, J.; Smith, in August of P.J., and Barker, J., concur.

basin, by reason of some defect of plumbing, was overflowed, and the water ran down into a lower

« PreviousContinue »