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of Government directors, etc., of corporations, Plaintiff was allowed to recover be paid by the companies respectively for in the Court below the full amount which they were appointed, and that such

of his claim. compensation be fixed at $10 per day while employed and traveling expenses at ten (10)

A. H. Holmes and Jno. F. Dilcents per mile. Held, That the Act of July lon, for applt. 27th, 1866, was a valid exercise of legislative B. F. Watson, for respt. power by Congress, and came fairly within

Held, No error; that the said Act the limits of its reserved power of amendment.

Receipts given by plaintiff, a Government of 1866 applied to the Union Pacific director of The Union Pacific R. R. Co., for R. R. Co., and was a valid exersalary and expenses for the years 1874 to cise of legislative power. 99 U. S., 1877, were not releases nor receipts given in 700. The exercise of legislative settlement or compromise of a controverted claim, and are susceptible of explanation, and power now in question is fairly though in full may be shown to have been within the limits of the reserved given under a misapprehension of his rights, power of amendment as declared and will not preclude him from recovering the and applied in the case cited. balance due him.

The receipts given by plaintiff Appeal from

from judgment for were not such as to preclude his plaintiff on referee's report. recovery in this case, and only op

Action to recover under the Act erated to extinguish the debt pro of Congress of July 27th, 1866 (14 tanto. U. S. Stat. at Large, 292), an The plaintiff was entitled to the unpaid balance alleged to be due balance of his claim, with interest plaintiff for traveling expenses from the date it was demanded by while acting as a Government di- him, as allowed by the referee. rector of defendant for the years

Judgment affirmed. 1874, 1875, 1876 and 1877. It ap- Opinion per curiam. peared on the trial that plaintiff as Government director was paid for

STATUTE OF FRAUDS. said years for his services ten dollars a day, and for traveling ex


TERM. THIRD DEPT. penses six dollars a day and his railroad fares actually paid, for John Ackley, exr., applt., v. which plaintiff receipted in full. Franklin J. Parmenter, respt. If plaintiff's traveling expenses Decided Jan., 1884. had been estimated at the rate of

A mortgage belonging to plaintiff's testator ten cents a mile, as provided for had been foreclosed by plaintiff and a sale in the said Act of 1866, they would was about to be had. Defendant then said to have amounted to as much more plaintiff that the mortgagor had placed in

his hands stock to bid off the property and than plaintiff received

as the

pay plaintiff his claim in full, if the sale amount claimed in this suit. This

was adjourned for ten days ; that in ten suit is brought for the difference days he would be prepared to pay. In rebetween the amount paid and the liance on this promise the sale was adamount of traveling expenses esti

journed, and when had resulted in a large

deficiency. In an action on this promise, mated at ten cents per mile, as pro

Held, That it was not an original undertak vided in the Act of 1866.

ing and should have been in writing.

This was an action to recover on pay.

pay. Bnt here, if defendant had an alleged verbal promise made by the ferry stock for the purpose defendant to plaintiff. Plaintiff is stated, that fact would only imply executor of Philander Ackley. he was to sell the stock and use it One Silliman gave a mortgage to

for said purpose.

But it appears Philander. It was foreclosed by that defendant had not sold it. plaintiff and a sale was about to We think. then, defendant was take place; the amount due was not under any present duty to pay $2,791.27. The alleged promise any thing to plaintiff, and we was this: Plaintiff claimed that think that the mere possession of defendant, who is an attorney, on property transferred to defendant the day of sale said to him that by Silliman is not enough to make Silliman had placed in his hands this promise an original underferry stock to bid off the property taking. Not being in writing the and pay plaintiff his full claim it promise was void. the sale was adjourned ten days; Judgment affirmed. that he (defendant) would be pre- Opinion by Learned, P. J.; pared to pay in ten days. The de- Boardman, J., concurs; Potter, fendant denied the allegations of J., dissents, on the grounds that the complaint; also set up that the defendant having, in consideration promise was without consideration of the transfer of property to him, and was not in writing. The sale absolutely promised to pay plainwas postponed, and when made tiff's debt, the promise was an resulted in a deficiency, which original one and not within the this action is brought to recover. statute; that the receipt of the Plaintiff was non-suited.

stock for the purpose indicated, James Lansing, for applt. together with the adjournment of R. A. Parmenter, for respt. the sale, furnished a good consid

Held, That the promise was not eration for the promise; that dean original undertaking and should fendant's representations, acted have been in writing. In Belknap upon by plaintiff, estopped defendv. Bender75 N. Y., 446, at p. 451, ant from proving that he himself it is said: "if the promise be made owned the stock, and that it was to the creditor after it has become error for the court to admit such the duty of the promissor, under proof. his arrangement with the debtor, to pay, then it is valid.” That is

WILLS. PROBATE. to say, if in the present case, at

PRACTICE. the time of the alleged promise, the defendant had money from the N.Y. SUPREME COURT. GENERAL. ferry stock which he was bound to TERM. FOURTH DEPT. apply to plaintiff's claim, then the promise was valid; because the

In re probate of Malviva N. Sea

bra's will. promissor would have been at the time under a legal obligation to Decided Jan., 1884.


In this State the will of a non-resident, with- the fact that the evidence of a porout regard to the place of its execution or

tion of the non-resident witnesses the place of testator's death, may be admit

was material and important to the ted to probate if the same be executed in pursuance of the laws of this State, or as contestant on the issues to be tried, prescribed by the laws of the testator's and that the application was made residence.

in good faith. A commission should be granted to examine non-resident witnesses whose evidence is

George F. Van Dereer, for applt. shown to be material and important, when

William A. Poucher, for respt. the application is made in good faith. Alanson Dean.

Appeal from decree of Surro- S. C. Huntingdon & Son, for gate's Court of Oswego County, proponents and for all other respts. admitting to probate certain in- Held, That the Surrogate's Court struments as the last will and tes- of Oswego County has exclusive tament of Malvina N. Seabra, who jurisdiction to take proof of the died in said county, October 5, 1882. will and admit it to probate. Code

Testatrix died without issue, Civ. Proc., $ 2476. leaving her surviving her husband The law has not always been the and others, her heirs at law and same, but now the will of a nonnext of kin. The will was execu- resident, without regard to the ted at Oswego, Sept. 7, 1882, and place of its execution, or the place disposes of all of testatrix's estate, of the testator's death, may be real and personal, to the exclusion admitted to probate if the same be of her husband, a portion of which executed in pursuance of the laws personal estate was in said county of this State, or as prescribed by at the dates of the will and of her the laws of the testator's residence. death. The husband contested 23 N. Y., 394; 53 id., 556; 1 the probate of the will, on the Bradf., 69; Laws 1876, Ch. 118, grounds that testatrix lacked teg- $2; Code Civ. Proc., $2611. The tamentary capacity and sound

and sound will was duly executed under onr mind and memory; that the pa laws. pers propounded were not her free But the commission should have and voluntary act, but were pro- issued on the question of capacity, cured by fraud and duress; that fraud and undue influence. at the times of the execution of Decree admitting will to probate the will and of her death, testatrix reversed, together with order dewas a citizen and resident of, and nying application for a commisdomiciled in Portugal, and that sion, and proceedings remitted to the will was not executed accord - Oswego County Surrogate's Court, ing to the laws of that country. with directions to proceed in the On filing such objections, contest- matter of the probate of the will of ant applied for a commission to Malvina N. Seabra, with costs of take the testimony of non-resident this appeal to be paid out of the witnesses. Sufficient is disclosed estate. by the moving affidavits, which Opinion by Barker, J.; Smith, are not contradicted, to establish 'P.J., and Hardin, J., concur.


PLEADING. DAMAGES. structed that they were only to

find the actual damages, if any. N.Y. SUPREME Court. GENERAL They found a forcible detainer and TERM. FOURTH DEPT.

found for plaintiff in the sum of Isaac R. Pharis, applt., v. R. $2,250. Thereupon plaintiff moved Nelson Gere, respt.

to amend the complaint by increas

ing the amount claimed to $7,000, Decided Jan., 1884.

and that the amount of damages In all actions for damages the sum demanded found by the jury be trebled. The

in the complaint must be sufficient to cover court denied the motion to amend, the real demand, and it cannot be enlarged but gave plaintiff leave to enter an after verdict without granting a new trial.

order multiplying the amount of Appeal from order at Circuit and damages found, by three, upon his Special Term denying plaintiff's filing a stipulation remitting all of motion to amend the complaint said sum so resulting in excess of after verdict by increasing the $3,000, and interest from date of claim for damages to correspond verdict, and to enter judgment for with the verdict, and refusing to said $3,000, with interest and no allow plaintiff to treble the damages found by the jury except upon Goodelle & Nottingham, for condition that he remit the excess applt. beyond the amount demanded in Kennedy & Tracy, for respt. the complaint, and interest thereon Held, That the court will not from date of verdict.

amend a complaint after verdict The complaint contained two by increasing the amount of damcounts: The first charge forcible ages for which judgment is deentry and detainer upon plaintiff's manded without setting aside the lands to his damage $3,000, and verdict and granting a new trial, to alleged that thereby defendant by give defendant an opportunity to force of section four of the statute defend against the enlarged claim. of "trespass on lands," forfeited 10 Co., 117, a. b.; 7 T. R., 131 ; 1 and became liable to pay treble Ch. Pl. (14th Am. Ed.) 339, 418; the amount of said damages, and 14 Johns., 111; 3 Wend., 356; 4 the same count concluded by a Den., 311 ; 2 Seld., 97; 5 Lans., demand of judgment for $3,000, 67; 11 Hun, 294. beside costs.

The second count The order was strictly within the alleged forcible detainer of the same rule and practice of the court. lands to plaintiff's damage $3,000. The motion to amend was propThe complaint concluded thus: erly denied. So far as appears, "Wherefore, on account of the plaintiff asked to amend unconforegoing premises, said plaintiff ditionally and not upon the usual demands judgment against said terms of paying costs and taking defendant in the sum of three a new trial. thousand dollars, besides costs of Order affirmed, with $10 costs this action." The jury were in and disbursements.

Opinion by Smith, P. J.; Har: moved to have the injunction vadin and Barker, JJ., concur. cated on its giving the security

as provided in $ 629 of the Code,

as amended by Ch. 404, Laws of INJUNCTION.


The order appealed from N. Y. SUPREME COURT. GENERAL was granted upon defendant's givTERM. FOURTH DEPT. ing an nndertaking in the penalty

of $1000, with two sureties, "conGeorge Chamberlain, applt., v. The B., N. Y., & P. R. R. Co.,

ditioned to pay to the plaintiff all respt.

damages that he may sustain by

reason of the construction and Decided, Jan. 1884.

operation of defendant's road upWhere defendant, without attempting to on the premises described in the meet plaintiff's case on the merits, seeks to remove a temporary injunction by giving complaint in this action.” an undertaking under the statute, plaintiff

F. W. Kruse, for applt. may exact an undertaking in full and strict Bowen, Rogers & Locke, for compliance with the statute.

respt. Appeal from Special Term order Held, Defendant's acts are an dissolving an injunction.

unjustifiable intrusion upon plainPlaintiff owns a house and lot tiff's possession and are confessedon the south side of a village ly a trespass. Upon the undisstreet, with ninety feet front and puted facts as they now appear, bounded on the north by the cen plaintiff is entitled, as demanded ter of the street. Defendant pro- in his complaint, to a permanent cured from the village permission injunction restraining defendant to lay its track through the street, from continuing the trespass. with the center line twenty feet Plaintiff in his moving papers esnorth of the south line of the tablished an unquestioned right to street, the same to be constructed the injunction order. Defendant's on the grade of the street, with no undertaking is not in compliance material excavations or embank- with the statute, in letter or spirit. ments. On June 8th, 1883, defen- As defendant has utterly failed to dant, against plaintiff's protest, meet the case upon the merits, it began preparing the street in front is not entitled to a dissolution of of plaintiff's property for its the injunction except upon strict tracks. Plaintiff thereupon began compliance with the statute as to this action and procured a prelim. the form and conditions of the unary injunction restraining defen dertaking dant's operations, and caused the Order vacating injunction reversame with the summons and com. sed, with $10 costs and disburse plaint to be served. Upon affidav. ments on this appeal, and $10 its, defendant moved to dissolve costs for opposing motion at Specthe injunction, and at the time of ial Term. the hearing of the motion no an- Opinion by Barker, J.; Smith, swer had been served. Defendant 'P.J., and Hardin, J., concur.

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