Page images
PDF
EPUB

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.

It follows that on the production of the tax lease defendant showed himself entitled to the possession of the premises in question. His title was then presumptively good, and the burden was cast on plaintiff to show it faulty. He made no effort to do so and defendant was therefore entitled to judgment.

Judgment reversed and new trial granted, costs to abide event. Opinion by Dykman, J; Barnard, P. J., and Pratt, J., con

cur.

Harry Wilbur, for applt. Wm. G. Choate, for respt. Held, That the order for the ex amination of the defendant Keene was properly vacated. The testimony sought relates to frauds. with respect to which the party sought to be examined is privileged from giving his testimony. 25 Hun, 248; 26 Hun, 166; 11 W. Dig., 576.

Order affirmed, with $10 costs and disbursements.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur.

DEPOSITIONS.

LIMITATIONS.

N. Y. SUPREME COURT. GENERAL N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

Constant A. Andrews, applt., v. John D. Prince, respt.

Decided Dec. 21, 1883.

An order for the examination of a party before trial should not be granted, and if granted should be vacated, where the moving papers show that the testimony which is sought relates exclusively to frauds, with respect to which the party sought to be examined is privileged from testifying.

Appeal from order vacating an order for the examination of James R. Keene, one of the defendants, as a party before trial.

The action was one in tort, resting upon charges of fraud and deceit for the purpose of obtaining money. The moving papers showed that the object of the examina

TERM. FOURTH DEPT.

Mary Drake, respt., v. Christian Wilkie, exr., applt.

Decided Oct., 1883.

The intention of the Code is to apply a uniform statutory rule of limitation to all concurrent remedies relating to the same subjectmatter; and a legatee seeking payment of his legacy will not be barred by lapse of time from seeking relief in the Surrogate's court, when, at the same time, a remedy is open to him, by action, in the courts of law.

Appeal from Surrogate's decree, requiring appellant, as executor of one L., deceased, to pay respondent the balance of a legacy alleged to be due her under said testator's will, with costs incurred in the proceeding to compel such payment.

*

M. H. Peck, for applt.
H. B. Cone, for respt.
Held, We see no reason to differ
with the findings of fact.

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 was testator's adopted child, he having no child of his own. At the date of the will respondent lived with her husband in Missouri, and has lived there ever since. She testified that she received a letter written in the executor's name, advising her that she had a legacy of $300, under the testator's will, payable at a future time, and proposing that if she would throw off $20 he would advance her $280; that she, confiding in such state-ceeding. ment, accepted the proposition; recover a legacy was given by and that she afterward received $280, and sent her receipt for $300. The executor testified that he never wrote a letter or caused one to be written to respondent, but the fact was admitted on his part, that on or about 30th October, 1872, the executor sent respondent $280 as payment on said legacy, and that respondent sent back her receipt for $300.

Re

spondent was not informed of the true amount of the legacy until February, 1881. The executor had

Prior to the Code of Civ. Proc. there was no statute of limitations which applied in express terms to a proceeding like the one before us. But by statute respondent had a concurrent remedy by action at law, and the real question is whether that legal remedy was barred before she began this proThe right of action to

statute. The action might be brought "after reasonable demand. made." 2 R. S., 114, § 9. But the omission by claimant to make demand does not prevent the running of the statute of limitations. 51 Barb., 552; S. C. affd., 41 N. Y., 619; 15 Wend.. 302. See Code Civ. Proc., § 410, and Throop's note. Section 410 took effect within six years after the legacy in question became payable, and it seems to apply to actions given by 9 of the Rev. St., which was

repealed by Ch. 245, Laws of 1880;
and § 1819, Code Civ. Proc., which
took effect September 1, 1880, was
substituted for it. Section 1819
was prepared to change the rule
respecting the statute of limita-
tions laid down in the above first
cited case.
See Throop's note to
the section. This section was in
force when this proceeding was
begun, and it, as well as § 9 of the
Rev. St., makes a demand and
refusal a prerequisite to a cause of
action, so that if respondent had
brought an action at law for her
legacy, under either section, when
she began this proceeding, it would
have been controlled by § 410.
Subd. 3 of 414 Code Civ. Proc.
was not designed to deprive any
cause of action of the remedial
provisions of the New Code in re-
spect to the limitation of actions.
to which it would be entitled other.
wise. The present case is within.
neither the letter nor the spirit of
the subdivision, and is governed
by § 410.

Cole v. Terpenning, 25 Hun, 482;
House v. Agate, 3 Redf., 307;
Redf. Surr. Pr., 585, discussed.

We conclude that at the time when this proceeding was begun respondent had a right of action at law, under the statute, to recover the unpaid balance of her legacy, which was not then barred by the lapse of time, six years not having elapsed from the time when she had actual knowledge of the facts upon which her right to make a demand of payment depended; and that being the case, the present proceeding is not barred by the statute of limitations.

Decree affirmed, with costs. Opinion by Smith, P. J.; Hardin and Haight, JJ., concur.

CONTRACT. PLEADING.

N. Y. SUPREME COURT. GENERAL
TERM. FIRST DEPT.

John Hurd, respt., v. The Hannibal & St. Joseph RR. Co., applt.

Decided Dec. 21, 1883.

In construing a provision of a contract the
whole contract must be considered and
such construction placed upon such provis-
ion, in the light of the circumstances un-
der which the contract was made, as will
carry out the intention of the parties.
The defendant, by his answer, having denied
the truthfulness of a concession in the
complaint, cannot afterwards avail himself
of such concession as an admission.

Appeal from a judgment recovered on the report of a referee.

Action to recover the balance of the purchase price of three elevators previously built by plaintiff. The elevators had been built by plaintiff on defendant's land under a previous agreement, by which plaintiff was to become owner of the elevators and land upon which same were built when plaintiff should have constructed the elevators.

The agreement sued on was made after the elevators had been substantially completed, and by it defendant agreed to purchase the elevators which had been built by plaintiff, and to pay therefor the amount plaintiff had expended in building them, with interest from the date of each disbursement, less the plaintiff's receipts from

the elevators, which receipts from the elevators were specified in the complaint at about $3,000. This allegation of the complaint, as to the amount of the receipts, was denied by the answer, and the referee found that the receipts had been $2,340, which defendant was entitled to have deducted from the purchase price.

By the terms of the contract sued on, it was stipulated that the cost of building the elevators does not exceed the sum of $85,000. The referee found that the cost of the elevators had been $94,413.11. Appellant urged that by the terms of the contract the referee could not properly allow plaintiff any more than $86,000 as the cost of building, and that the specification of $3,000 in the complaint, as the receipts from the elevators, being an admission, precluded the referee from finding that the receipts had been less than $3,000.

Elihu Root, for applt.
L. B. Bunnell, for respt.

Held, That, taking the whole contract in suit together, it was the evident design to rescind the previous contract, and that plain tiff should be paid the amount he had actually expended, together with interest on each of the items of disbursement from the time. made. This apparent paramount design should not be frustrated by the stipulation as to the cost of building being specified at about $85,000, which provision must be regarded only as an estimate.

In

that respect the referee properly allowed the full amount shown by plaintiff to have been expended in

building the elevators, with interest from the date of each disburse

ment.

Held further, That the allegation of the complaint, that the re ceipts from the elevators had been $3,000, having been denied, the matter was open for proof, and the receipts having been shown to be what the referee found, though less than the amount specified in the complaint, the referee properly based his finding upon the proof, and it was incumbent upon defendant to show what, if any, additional receipts there were, which defendant failed to do. Defendant having denied, the truthfulness of the concession in the complaint, cannot avail himself of it as an admission.

Judgment affirmed.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

ESTOPPEL.

N.Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Henry Weiderwax, applt., v. Sherman Jacques, respt,

Decided Nov., 1883.

To constitute an estoppel it must appear that

the acts and declarations of the party to be estopped were designed to influence the contract of another, and did so influence it.

Appeal from judgment entered on verdict of jury on an appeal and new trial in County Court, and from an order denying a motion for a new trial.

August 23d, 1878, defendant owed one D. $285.05 for labor and board; on the 24th of August,

such

account was not inconsistent with other claims and demands such as were proved upon the trial.

Judgment and order affirmed. Opinion by Boardman, J.; Learned, P. J., and Bockes, J.,

concur.

DEEDS.

1878, defendant presented to D. from defendant, because
an itemized account for $160.93,
due defendant from D. After-
wards and on the same day D.
assigned his claim against defend-
ant to H. W. & Co., of which firm
plaintiff was a member. H. W.
& Co. afterwards assigned the
claim to plaintiff. At the time D.
assigned to H. W. & Co., he ex-
hibited the itemized account which
defendant presented to him.
Plaintiff brought this action on
the account as assignee of D. In
justice's court defendant pleaded
certain offsets against plaintiff's
account in suit, for house rent,
cow keeping, and paying for cow,
for which D. was indebted to him,
which items were not entered in
the itemized account. The justice
rendered judgment for $110 dam-
ages. On appeal and new trial in
the County Court defendant prov-
ed, under objection, a claim of
$40 for house rent and some other
items. The jury rendered a ver-
diet for plaintiff for $50.86, there-
by throwing the costs on plaintiff.

N. Y. COURT OF APPEALS. Coleman, respt., v. The Manhattan Beach Imp. Co. et al., applts.

W. H. Silvernail, for applt. A. H. Farrar, for respt. Held, That the itemized account rendered by defendant did not estop him from adding omitted items or proving items not embraced therein. It is not an account stated, and was in no respect conclusive against the defendant. 44 N. Y., 653; 16 N. Y., 389; 54 N. Y., 480. It lacks the elements of an estoppel; it was not made to or for plaintiff, nor designed to influence his action. Nor could plaintiff justly rely upon items of an account shown to him by D.,

Vol. 18.-No. 11.

Decided Dec. 11, 1883.

It is not necessary that the premises conveyed by a deed should be described therein by boundaries, courses, or distances, or by reference to monuments; words of general description are sufficient.

When words of general description are used

oral evidence is admissible to ascertain the particular subject matter to which they apply. Plaintiff purchased the premises in question and paid therefor, but by mistake they were omitted from the deed. Thereafter the assignee in bankruptcy of the grantor, under order of the bankrupt court, executed a deed of the premises to correct such mistake. At that time defendants were in possession under a deed from the original grantors executed subsequent to plaintiff's purchase. Held, That the assignee's deed was not in contravention of 1 R. S., 739, $147.

Affirming S. C., 14 W. Dig., 323.

This was an action of ejectment. The deed under which plaintiff claims title describes the premises in controversy as "Pelican Beach, near Barren Island, in the town of Flatlands." The identity of Pelican Beach with the demanded premises was found by the trial court, and the evidence sustained the finding. It was shown that

« PreviousContinue »