Page images

his taxes, and this law so under- tion was to show by the testimony stood will operate as an incentive of said defendant Keene that he to do so.

On principle therefor procured property from plaintiff the language of this law should by means of false and fraudulent receive the full force of its signifi- representations. cation. See 62 N. Y., 350.

Harry Wilbur, for applt. It follows that on the produc- Wm. G. Choate, for respt. tion of the tax lease defendant Held, That the order for the ex showed himself entitled to the amination of the defendant Keene possession of the premises in ques- was properly vacated. The testition. His title was then pre- mony sought relates to frauds sumptively good, and the burden with respect to which the party was cast on plaintiff to show it sought to be examined is privifaulty. He made no effort to do leged from giving his testimony. so and defendant was therefore 25 Hun, 248; 26 Hun, 166 ; 11 W, entitled to judgment.

Dig., 576. Judgment reversed

and new Order affirmed, with $10 costs trial granted, costs to abide event. and disbursements.

Opinion by Dykman, J; Bar- Opinion by Brady, J.; Davis, nard, P. J., and Pratt, J., con- P. J., and Daniels, J., concur.




Constant A. Andrews, applt., v.

Mary Drake, respt., v. Christian John D. Prince, respt.

Wilkie, exr., applt. Decided Dec. 21, 1883.

Decided Oct., 1883. An order for the examination of a party The intention of the Code is to apply a uniform

before trial should not be granted, and if statutory rule of limitation to all concur. granted should be vacateil, where the mov- rent remedies relating to the same subjecting papers show that the testimony which matter ; and a legatee seeking payment of is sought relates exclusively to frauds, with his legacy will not be barred by lapse of respect to which the party sought to be ex- time from seeking relief in the Surrogate's amined is privileged from testifying.

court, when, at the same time, a remedy is

open to him, by action, in the courts of law. Appeal from order vacating an order for the examination of James Appeal from Surrogate's decree, R. Keene, one of the defendants, requiring appellant, as executor of as a party before trial.

one L., deceased, to pay respondThe action was one in tort, rest

ent the balance of a legacy alleged ing upon charges of fraud and de- tu be due her under said testaceit for the purpose of obtaining tor's will, with costs incurred in money. The moving papers show- tie proceeding to com pel such payed that the object of the examina- I ment.


L. died April 5, 1872, leaving sufficient assets to pay all bequests a will, dated December 15, 1863, in full. He never filed an invencontaining a bequest, as follows: tory, and there has been no ju“I give and bequeath to said Mary dicial settlement or other proceedDrake *

* the sum of four ing respecting said estate except hundred dollars, with interest, to the present proceeding, which was commence in one year after the begun June 28, 1881. It appeared day of my death, and provided that in January, 1869, the testator she shall die before she shall in- sent respondent $100 at her reherit the sum of four hundred quest, which the executor claims dollars, then in that case the said was intended as a payment on the four hundred dollars shall be paid legacy pro tanto, or at least as a by my said executor to the said loan.

The Surrogate held that it Mary Drake's children, to be

was a gift. Appellant contends equally divided between them, that respondent's claim is barred share and share alike."

Mary by the statute of limitations. Drake testator's adopted M. H. Peck, for applt. child, he having no child of his H. B. Cone, for respt. Own. At the date of the will Held, We see no reason to differ respondent lived with her hus- with the findings of fact. band in Missouri, and has lived Prior to the Code of Civ. Proc. there ever since. She testified there was no statute of limitations that she received a letter written which applied in express terms to in the executor's name, advising a proceeding like the one before her that she had a legacy of $300, But by statute respondent under the testator's will, payable had a concurrent remedy by action at a future time, and proposing at law, and the real question is that if she would throw off whether that legal remedy was $20 he would advance her $280 ; barred before she began this prothat she, confiding in such state-ceeding. The right of action to ment, accepted the proposition ; recover a legacy was given by and that she afterward received statute. The action might be $280, and sent her receipt for bronght “after reasonable demand $300. The executor testified that made." 2 R. S., 114, § 9. But he never wrote a letter or caused the omission by claimant to make one to be written to respondent, demand does not prevent the runbut the fact was admitted on his ning of the statute of limitations. part, that on or about 30th Octo- 51 Barb., 552 ; S. C. afkd., 41 N. Y., ber, 1872, the executor sent re. 619 ; 15 Wend., 302. See Code spondent $280 as payment on said Civ. Proc., $ 410, and Throop's legacy, and that respondent sent note. Section 410 took effect back her receipt for $300. Re. within six years after the legacy spondent was not informed of the in question became payable, and true amount of the legacy until it seems to apply to actions given February, 1881. The executor had by $ 9 of the Rev. St., which was


cited case.

repealed by Ch. 245, Laws of 1880; Decree affirmed, with costs. and $ 1819, Code Civ. Proc., which Opinion by Smith, P.J.; Hardin took effect September 1, 1880, was and Haight, JJ., concur. substituted for it. Section 1819 was prepared to change the rule respecting the statute of limita- CONTRACT. PLEADING. tions laid down in the above first

N. Y. SUPREME COURT. GENERAL See Throop's note to

TERM. FIRST DEPT. the section. This section was in force when this proceeding was

John Hurd, respt., v. The Hanbegun, and it, as well as $ 9 of the nibal & St. Joseph RR. Co., Rev. St., makes a demand and applt. refusal a prerequisite to a cause of Decided Dec. 21, 1883. action, so that if respondent had

In construing a provision of a contract the brought an action at law for her

whole contract must be considered and legacy, under either section, when such construction placed upon such provisshe began this proceeding, it would ion, in the light of the circumstances un.

der which the contract was made, as will have been controlled by $ 410.

carry out the intention of the parties. Subd. 3 of $ 414 Code Civ. Proc.

The defendant, by his answer, having denied was not designed to deprive any the truthfulness of a concession in the cause of action of the remedial complaint, cannot afterwards avail himself

of such concession as an admission. provisions of the New Code in respect to the limitation of actions Appeal from a judgment recovto which it would be entitled other. ered on the report of a referee. wise. The present case is within Action to recover the balance of neither the letter nor 'the spirit of the purchase price of three elevathe subdivision, and is governed tors previously built by plaintiff. by S 410.

The elevators had been built by Cole v. Terpenning, 25 Hun, 482; plaintiff on defendant's land unHouse v. Agate, 3 Redf., 307; der a previous agreement, by Redf. Surr. Pr., 585, discussed. which plaintiff was to become own

We conclude that at the time er of the elevators and land upon when this proceeding was begun which same

built when respondent had a right of action at plaintiff should have constructed law, under the statute, to recover the elevators. the unpaid balance of her legacy, The agreement sued which was not then barred by the made after the elevators had been lapse of time, six years not having substantially completed, and by it elapsed from the time when she defendant agreed to purchase the had actual knowledge of the facts elevators which had been built by upon which her right to make a plaintiff, and to pay therefor the demand of payment depended ; amount plaintiff had expended in and that being the case, the present building them, with interest from proceeding is not barred by the the date of each disbursement, statute of limitations.

less the plaintiff's receipts from




the elevators, which receipts from building the elevators, with interthe elevators were specified in the est from the date of each disbursecomplaint at about $3,000. This ment. allegation of the complaint, as to 0 Held further, That the allegathe amount of the receipts, was tion of the complaint, that the re denied by the answer, and the ref- ceipts from the elevators had been eree found that the receipts had $3,000, having been denied, the been $2,340, which defendant was matter was open for proof, and entitled to have deducted from the the receipts having been shown to purchase price.

be what the referee found, though By the terms of the contract less than the amount specified in sued on, it was stipulated that the the complaint, the referee properly cost of building the elevators does based his finding upon the proof, not exceed the sum of $85,000. and it was incumbent upon de. . The referee found that the cost of fendant to show what, if any, adthe elevators had been $94,413.11. ditional receipts there were, which

Appellant urged that by the defendant failed to do. Defendterms of the contract the referee ant having denied, the truthfulness could not properly allow plaintiff of the concession in the comany more than $86,000 as the cost plaint, cannot avail himself of it of building, and that the specifi- as an admission. cation of $3,000 in the complaint, Judgment affirmed. as the receipts from the elevators, Opinion by Daniels, J.; Davis, being an admission, precluded the P. J., and Brady, J., concur. referee from finding that the re. ceipts had been less than $3,000. Elihu Root, for applt.

ESTOPPEL. L. B. Bunnell, for respt.

N.Y. SUPREME COURT. GENERAL Held, That, taking the whole

TERM. THIRD DEPT. contract in suit together, it was the evident design to rescind the Henry Weiderwax, applt., v. previous contract, and that plain Sherman Jacques, respt, tiff should be paid the amount he Decided Nov., 1883. had actually expended, together to constitute an estoppel it must appear that with interest on each of the items

the acts and declarations of the party to be of disbursement from the time estopped were designed to influence the made. This apparent paramount

contract of another, and did so influence it. design should not be frustrated by Appeal from judgment entered the stipulation as to the cost of on verdict of jury on an appeal building being specified at about and new trial in County Court, $85,000, which provision must be and from an order denying a moregarded only as an estimate. Intion for a new trial. that respect the referee properly August 23d, 1878, defendant allowed the full amount shown by owed one D. $285.05 for labor and plaintiff to have been expended in I board ; on the 24th of August, presented

1878, defendant presented to D. from

from defendant, because such an itemized account for $160.93, account was not inconsistent with due defendant from D. After other claims and demands such as wards and on the same day D. were proved upon the trial. assigned his clain against defend- Judgment and order affirmed. ant to H. W. & Co., of which firm Opinion by Boardman, J.; plaintiff was a member. H. W. | Learned, P. J., and Bockes, J., & Co. afterwards assigned the concur. claim to plaintiff. At the time D. assigned to H. W. & Co., he ex

DEEDS. hibited the itemized account which defendant

to him.

N. Y. COURT OF APPEALS. Plaintiff brought this action on the account as assignee of D. In

Coleman, respt., v. The Manhatjustice's court defendant pleaded tan Beach Imp. Co. et al., applts. certain offsets against plaintiff's Decided Dec. 11, 1883. account in suit, for house rent,

It is not necessary that the premises conveycow keeping, and paying for cow,

ed by a deed should be described therein for which D. was indebted to him,

by boundaries, courses, or distances, or by which items were not entered in reference to monuments ; words of general the itemized account. The justice description are sufficient. rendered judgment for $110 dam

When words of general description are used

oral evidence is admissible to ascertain the ages. On appeal and new trial in

particular subject matter to which they apthe County Court defendant prov- ply. ed, under objection, a claim of Plaintiff purchased the premises in question $40 for house rent and some other

and paid therefor, but by mistake they were

omitted from the deed. Thereafter the asitems. The jury rendered a ver

signee in bankruptcy of the grantor, under dict for plaintiff for $50.86, there- order of the bankrupt court, executed a by throwing the costs.on plaintiff. deed of the premises to correct such misW. H. Silrernail, for applt.

take. At that time defendants were in pos

session under a deed from the original A. H. Farrar, for respt.

grantors executed subsequent to plaintiff's Held, That the itemized account purchase. Held, That the assignee's deed rendered by defendant did not was not in contravention of 1 R. S., 739, estop him from adding omitted


Affirming $. C., 14 W. Dig., 323. items or proving items not embraced therein. It is not an ac

This was an action of ejectment. count stated, and was in no respect The deed under which plaintiff conclusive against the defendant. claims title describes the premises 44 N. Y., 653; 16 N. Y., 389; 54 in controversy as “ Pelican Beach, N. Y., 480. It lacks the elements near Barren Island, in the town of of an estoppel ; it was not made to Flatlands.” The identity of Pelior for plaintiff, nor designed to can Beach with the demanded influence his action. Nor could premises was found by the trial plaintiff justly rely upon items of court, and the evidence sustained an account shown to him by D., the finding. It was shown that

Vol. 18.-No. 11.

« PreviousContinue »