Page images
PDF
EPUB

though upon another ground, is the commencement of this action, correct.

and that defendants lived, one in Judgment affirmed.

California and the other in InOpinion by Davis, P.

P. J.; | diana. Daniels and Brady, JJ., concur. P. J. Joachimsen, for applt.

Stern & Myers, for respts.

Held, By the moving affidavit it ATTACHMENT.

appears that no instant of time inN. Y. SUPREME COURT. GENERAL tervened between the completion TERM. FIRST DEPT.

of the services and the commence

ment of suit. Defendants had at Louis Sınadbeck, applt.,

applt., v.

least the day on which services George H. Sisson et al., respts.

were completed to pay for them, Decided Jan. 25, 1884.

and yet the moving affidavit

shows that the suit was brought An employer is entitled to at least the whole of the day upon which services were com

the very day the services were pleted to pay for their performance, in the completed. There is no statement absence of any agreement as to when the

of any notification that services services should be paid for; an action there. fore brought on the day of the completion

were completed or demand of of the services is prematurely brought. payment. The moving papers upon which an attach- There was no breach of contract ment was issued showed that the claim by defendants shown at the time sued for was for the value of professional | suit was brought. services rendered by plaintiff at defendants' request, for which defendants had agreed to

The attachment was properly pay their reasonable value, which value vacated. was stated, and that such services were Order affirmed, with costs. performed between September 1st, 1882,

Opinion by Brady, J.; Daniels, down to the commencement of this action. No demand upon defendant or notice of

J., concurs. completion of services was alleged. Held, That no breach of contract or cause of action when suit was brought was shown, and

INSURANCE the attachment was properly vacated.

N. Y. SUPREME COURT. GENERAL Appeal from order vacating an TERM. SECOND DEPT. attachment.

Matthew Uhrig, applt., v. The The attachment was based on defendants' non-residency, and the Williamsburgh City Fire Ins. Co. affidavit upon which it was ob- of Brooklyn, respt. tained alleged merely that defen: Decided Dec., 1883. dants were indebted to plaintiff for

When a policy of insurance contains a condiwork done, for which defendants

tion that in case of disagreement each party agreed to pay what such services

shall select an arbitrator, and the two shall were reasonably worth ; that the establish the loss, and in case they fail to services were worth $20,000, and

agree they shall appoint a third, and that

two out of the three shall settle the amount, were performed during a period

an appointment by one party of an arbifrom September 1st, 1882, down to trator, not in good faith but with a design Each party

to accomplish an ulterior purpose, relieves Judgment reversed and new the other party from such condition.

trial granted, costs to abide event. Appeal from a judgment dis. Opinion by Barnard, P. J.; missing plaintiff's complaint upon Pratt and Dykman, JJ., concur. a policy of insurance for a loss by fire. The policy contained a condition that in case of a disagree.

PLEADING. ment as to damages each party should select an arbitrator, and N. Y. SUPREME COURT. GENERAL the two should establish the loss,

TERM FIRST DEPT. and upon a failure to agree that

The Davenport Glucose Mfg. they should appoint a third, and that two out of the three should Co., respt., v. Isaac W. Taussig et

al., applts. settle the amount. did appoint one.

There was proof Decided Jan. 25, 1884. tending to show that defendant

In an action to recover goods sold to defendid not appoint its appraiser in

dants on the ground that the sale of such good faith, and that the appraiser goods was induced by defendants' frauduwas not intended to appraise but lently concealing the fact that they were

insolvent at the time of such sale, and to refuse so as to force a settlement. That he and the company

fraudulently intending never to pay for

such goods, but to fail and discontinue busirefused to appoint another man to ness, allegations in the complaint of the make up the board until after the amount of defendants' liabilities and of property had been removed and their assets at the time of the sale, and of cleared up.

fraudulent representations as to their sol

vency made to other persons than plaintiffs Patrick Keady, for applt.

will not be stricken out as being statements S. M. & D. E. Meeker and Al- of evidence and not of facts constituting bert G. Mc Donald, for respt.

plaintiff's claim. Held, That the Court erred in

The fact that it might subject defendants to a

criminal prosecution to answer certain alledismissing plaintiff's complaint.

gations in a complaint is no reason for If the first appointment was not in striking them out for, by $ 523, Code Civ, good faith and was designed to

Pro., the verification of defendants' answer

may be omitted as to such allegations. accomplish an ulterior purpose and not an appraisement according Appeal from order denying moto the spirit of the contract plain- tion to strike ont certain parts of tiff was relieved from the condi- the complaint. tion and could sue in the ordinary This was an action to recover way and have his damages as possession of personal property sessed by a jury. And it would sold to defendants. be no answer that the company The complaint alleged that such subsequently offered to refer to sale was induced by the fraudulent the arbitrator to be mutually ap-concealment by defendants that pointed. It was for the jury to they were insolvent at the time, say from the evidence whether the and about to fail and make a gencondition was broken.

eral assignment, with the fraudu

lent intent of procuring plaintiff's | the fraudulent intent, and without goods without paying for them. which its case might be insuffi

The complaint then went on to cient. state the amount of defendants' That while it is true tbat a liabilities and of their assets at the statement of evidence only and time of such sale, and that they not of facts constituting the claim had made frandulent representa- should be stricken out, this does tions to other sellers by which not apply to an action in which all sales were accomplished. This the facts to be stated and the portion of the complaint defen- evidence of them are synonymous. dants moved to strike out on the That the objection to the allegaground that it was irrelevant, re- tions involving the fraud set out dundant and frivolous, as being a in the complaint cannot be enterstatement of evidence and not of tained upon the proposition that facts constituting plaintiff's claim, answering them would subject deand on the ground that defen- fendants to a criminal prosecution, dants would be privileged from for the reason that, by § 523 of testifying as to them under $ 837 the Code, the verification of the of the Code of Civil Procedure, answer might be omitted as to and should not be obliged to an. these allegations. swer them.

Order affirmed. Henry Schmitt, for applt.

Opinion by Brady, J.; Daniels, Aaron Pennington Whitehead, J., concurs. for respts.

Held, That the allegation as to the indebtedness of defendants at

CREDITORS' BILL. the time of the sale should not be stricken out; that it was an essen

N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT. tial fact bearing upon the allegation of insolvency, its fraudulent

The Roger Wheel Co., respt., v. concealment and the design in James E. Fielding et al., applts. making the purchase.

That the allegation of fraudu- Decided Dec. 21, 1883. lent representations made to others

An action in the nature of a creditor's bill, should not be stricken out, for the

based upon an execution outstanding at the Courts have held that proofs of

commencement of the action, was brought similar representations to those to set aside certain transfers by the judg. alleged by plaintiff may be given ment debtors as fraudulent; and thus to in evidence for the purpose of

enforce the lien of plaintiff's judgment.

Held, That the return of the execution unestablishing the general fraudulent

satisfied pending the action was not a bar design, 18 N. Y., 588 ; 24 N. Y.,

to plaintiff's right to the relief sought. 139 ; 28 N. Y., 486 ; 4 Abb., N. S., A conveyance made for a nominal considera431, and that these representations

tion, the grantor at the time being insol.

vent, warrants the conclusion that it is were facts upon which plaintiff

fraudulent and void as to creditors. relied to establish the existence of 'To constitute a valid general assignment for

Vol. 18-No. 18.

the benefit of creditors, the duly acknowl. | Seld., 213; 47 N. Y., 410; 2 R. S., edged assent of the assignee in writing to

137; 65 N. Y., 73; 56 How., 46. the assignment is necessary. Several fraudulent transfers may be reached

Held further, That the assignee's and adjudged void in a single action. not having assented in writing to

the assignment constituted a fatal Appeal from judgment recov.

defect to the instrument. His asered at the trial at Special Term in

sent, duly acknowledged, should plaintiff's favor. Action to set aside a general as.

have appeared. Chap. 446, Laws signment, and certain conveyances,

of 1877, § 2. made by the judgment debtors of

That the action properly includ

ed the various conveyances and plaintiff. Plaintiff recovered judg. ment and issued execution which

the assignment of the debtors, and

was a single cause of action though was outstanding when this action was commenced, but was returned it sought to set aside and have adduring its pendency. This was

judged void these various convey. urged as a reason against plain ances, &c. tiff's recovery among others.

Judgment affirmed.

Opinion by Daniels, J.; Davis, Joseph A. Shoudy, for applts.

P. J., and Brady, J., concur. Wilson M. Powell, for respt.

Held, That the return of the execution during the pendency of the LETTERS OF ADMINISTRAaction will not be allowed to defeat

TION. plaintiff's action, though it is one N. Y. SUPREME COURT. GENERAL brought to make the property

TERM. FIRST DEPT. transferred subject to the lien of his judgment, and to that end to In re application of Daniel W. remove obstructions to the enforce- Schoonmaker for letters of adminment thereof. The case must be istration. determined upon the facts appear

Decided Jan. 25, 1884. ing at the commencement of the

The granting of letters of administration to a action. It would be sacrificing

creditor of an intestate dying within this substance to form to hold differ

State, on the application of such creditor ently. 8 Daly, 518; 27 N. Y., therefor, is discretionary with the surro244 ; 54 N. Y., 125; 63 N. Y., 252.

gate when it is made to appear in opposi.

tion that the intestate was not a resident of Held furthcr, That the convey

this State, and that, at the time of the apances of the land were properly set plication, there was no personal property aside and adjudged void, it ap- belonging to the decedent within the State: pearing that they were made for a for the surrogate is not required to issue

letters of administration when they must, nominal consideration, and that

for all practical purposes, prove to be enthe grantors were insolvent at the

tirely ineffectual, and, in such a case, it is a time. The concurrence of these proper exercise of the surrogate's discretion two facts warranted the conclusion to deny the application. that the deeds were void as to the Appeal from decree of the surthen creditors of the grantors. 5 rogate of the County of New York

denying application for letters of could have been of no possible administration.

service in the administration of the The appellant applied to the estate of the intestate, for, as the surrogate of New York County personal property had been refor letters of administration on the moved from this County at the estate of John 0. Evans, deceased, time the application for them was as a creditor of said Evans, alleging made, there was clearly no subin his petition, upon information ject matter remaining upon which and belief, that said Evans died they could operate. That the intestate in the City of New York, surrogate has by no provision of of which place he was a resident, law been required to issue le-ters and leaving personal property of administration when it is made within the State of New York. The evident that they must for all application was opposed by the practical purposes prove to be widow of the said Evans, who | entirely ineffectual. That in such proved by her own affidavit and a case the granting of letters is that of a brother of the deceased discretionary with the surrogate, that Evans was a resident of the and, under the circumstances of City of Washington, and was only the present case, it was a proper temporarily in New York at the exercise of his discretion to refuse time of his death ; that she had the application. 83 N. Y., 348. been appointed administrator of 355. his estate by the Probate Court of Decree affirmed. the District of Columbia ; that all Opinion by Daniels, J., Brady, the assets of the estate were in her J., concurs. possession, and that there was no personal property belonging to said estate in the State of New

CORPORATIONS. PLEADYork at the time of appellant's

ING. application for letters.

N. Y. SUPREME COURT. GENERAL Sidney F. Shelburne, for applt.

TERM. SECOND DEPT. Fisher A. Baker, for respt.

Held, That the direct denial by Caroline Bengstein, Tespt., v. the intestate's widow and brother The Thingvalla S. Co., applt. that the intestate was a resident of

Decided Dec., 1883. New York overcame the general statement to that effect made upon Where the complaint avers that defendant is information and belief in the ap- a foreign corporation incorporated under

the laws of the Kingdom of Denmark, and pellant's petition, and deprived

the defendant answers and denies on inforthe surrogate of the right to pro

mation and belief that it is a foreign corpoceed upon the mere circumstance ration as is alleged in the complaint, no isthat the deceased died within New sue is made requiring plaintiff to prove the York County.

corporate existence of the defendant, as

$ 1776 of the Code requires an affirmative That, if letters of administration

denial of the fact that the defendant is a had been issued to appellant, they corporation.

« PreviousContinue »