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ceeding three months. (86). The affirming judgment of non-suit, wall in this case adjoined private affirmed. property, and endangered only Opinion by Finch, J. All conthe lives of adjoining owners or occupants. Defendant's common council passed no resolution order

CONTRACTS. PUBLIC POLICY ing the removal of the wall. No complaint was made to the com- N. Y. SUPERIOR COURT. GENERAL mon council that the wall was

TERM. dangerous, and the evidence showed that a prudent man after ex

Edward Materne et al., applts. amination might have deemed the

v. Benno Horwitz et al., respts. wall not unsafe. The plaintiff Decided Feb. 4, 1884. was non-suited.

Plaintiff and defendant entered into an agrecLouis Marshall, for applt.

ment for the sale and purchase or a quantiM. A. Knapp, for respt.

ty of domestic sardines with labels on the

boxes iu a French style to contain a stateHeld, No error; that, under the

ment that the contents had been packed in circumstances, while an omission

France in olive oil by persons named there

It appeared that French sardines are by the common council to act may worth about 50 per cent. more than domes. indicate an error of judgment it tic sardines, on account of quality, etc., did not show a negligent omission.

and that domestic sardines are taken and The adjoining owner had no abso

packed in Maine. Held, in an action

brought after tender of said goods and a lute right to a contrary judgment.

refusal to receive them, that the contract The general public were not inter- was against public policy and could not be ested, and whether a resolution enforced, although there be no direct evishould be passed and enforced by

dence to show that defendants, the whole

salers, intended to sell to consumers. subsequent penalties rested in the discretion of the council and for Appeal from judgment dismisan error of judgment the corpora- sing complaint entered on direction is not liable.

tion of a judge before a jury. The failure to act does not prove Action for the price of goods negligence in a case where not tendered to defendants under a conacting is consistent both with tract of sale. The plaintiffs and deknowledge and ordinary prudence. fendants being wholesale dealers in

The adjoining owner could have sardines, in 1881, entered into a pulled down the wall if he could written agreement by which the bave shown it to have been a nui. former were to sell and the latter sance. He had and still has his to buy four hundred cases of action for the resultant injury if "domestic sardines," the boxes it flowed from a culpable negli- to have “fancy labels" upon them. gence. Neither he nor plaintiff Domestic sardines were fish taken had an absolute right to the inter- and packed in Maine, and “ fancy ference of the common council. labels were decorated labels in a

Judgment of General Term, French style. Plaintiffs knew

that these labels would contain a The illegality which invalidates statement that the contents of the a contract is not necessarily such box had been packel in France as tends to a violation of law "in olive oil by persons named on

which inflicts a penalty. For the label.” Plaintiffs testified instance, contracts which tend that imported sardines came most directly to immorality, like sales ly from France, and are worth in of goods to a prostitute for the the market about fifty per cent. | purpose of enabling her to carry more than domestic sardines on on her business of prostitution; account of the quality and the contracts in restraint of trade or duty. The goods tendered by marriage; marriage brokerage conplaintiffs had upon them labels tracts; a contract of two persons like those that have been described not to bid against each other at and names that were apparently auction, under certain circumnames of French packers, doing stantes, are void. A pertinent business in France. It did case, ie, that an agreement made not appear that there were any to defraud a creditor of one party persons of such names, and the to it cannot be enforced. Possibly contract could not have

have been

been the statute against obtaining goods carried out with domestic sardines by false pretences would embrace that had upon the boxes labels a case of knowingly selling goods different from those upon the under a fictitious label that conboxes tendered.

tained statements as to the goods. From the facts, it was to be The bare knowledge by a vendor inferred that defendants entered that the

that the purchaser intends to into the agreement, to the know- make an unlawful use of the arledge of plaintiffs, with the pur- ticle sold will not prevent a recovpose of selling the goods to others ery for the purchase money, but in the condition provided by the this is only so when the vendor agreement.

has done nothing in aid or furtherPlaintiffs did not make the de- ance of the unlawful design, and ceptive labels, but they knowingly when it is not made a part of the procured and furnished them, contract that the goods shall be

The defendants claimed that the used for an unlawful purpose. agreement was illegal because its The contract is invalid if made object was that goods should be with the intent that it shall be delivered in a condition which in used in or for some unlawful the usual course of trade would object. 14 N. Y. 169. be used as a means of dishonest Here part of the contract, when practice upon consumers.

the symbols expressed in it are C. D. Adams, for applts.

turned into language, was that

the goods should be furnished to Otto Horwitz, for respts.

defendants ready for market, with Held, That the complaint was a false representation as to their properly dismissed.

kind that would be likely to


deceive. For this reason it was Relator was a telegraph com papart of the contract that an un- ny incorporated under Chap. 471, lawful object was intended. Laws of 1853, owning a line partly

Though there was no evidence to within and partly without the State show that it was the understand of New York. In the year 1881 ing that defendants were to sell to its capital stock was assessed for consumers, the usual result would taxation by the Commissioners of be that the goods would be pre. Taxes, etc., of New York City, on sented to consumers by means of the second Monday of January of such sales as they should make. that year, at $600,000, which was

Rudderow Huntington, 3 the amount of its paid up capital Sandf., 256, distinguished.

at that time. Relator claimed that Judgment affirmed, with costs. it should be taxed under Chap.

Opinion by Sedgwick, Ch. J.; 471, Laws of 1853, S3, only upon O'Gorman, J., concurs.

the cost of its works within the

State and upon the personal prop: CORPORATIONS. TAXATION.

erty owned by it, which amounted

to about $17,000, and brought N. Y. SUPREME COURT. GENERAL these proceedings to procure the TERM. FIRST DEPT.

reduction of its assessment to that The People ex rel. The Mutual sum. It appeared that the relator Union Tel, Co., applt., v. The Com- had failed to furnish to the tax missioners of Taxes, &c., in the commissioners during the period City of New York, respts.

within which they had power to

correct assessments, (C!. 302, Laws Decided Jan. 25, 1884.

1859) the statement required by A telegraph company owning a line partly statute (Ch. 471, Laws 1853, § 3,

within and partly beyond the limits of this and 2 R. S., 7th Ed., 1036) to
State, and partly in the City of New York, furnished to them showing the ac-
is subject to taxation in that city on its
capital stock to the amount of the actual

tual cost of the works etc., of the recost of its works within that city, and for lator, and had made no application such personal property or real estate as it for the correction of the assess; may own therein ; but if its officers fail to

ment until after that period bad furuish to the tax commissioners a statement of the cost of its works, etc., as re

expired. quired by statute, the commissioners have Fisher A. Baker, for applt. the right to assess the property of the company according to the best information they George P. Andrews, for res pts. can procure and if the corporation has fail.

Held, That while, under $ 3, of ed to apply for the correction of such assessment within the time provided by law Chap. 471, Laws of 1853, the relafor that purpose, the Court will not there- tor would be subject to taxation in after correct such assessment on certiorari.

the City of New York only for the Appeal from order of Special actual cost of its lines within that Term, confirming the assessment city and for such personal prolon the capital stock of relator erty or real estate as it might own made by the tax commissioners. therein, still it was its duty, under


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the statutes, Ch. 471, Laws 1853,

MARRIAGE. $ 3, and 2 R. S., 7th Ed., 1036, to

. GENERAL have furnished to the tax commis- N. Y. SUPREME COURT.

TERM. FIRST DEPT. sioners of New York City a statement of the actual cost of its Caroline Harbeck, applt., v. works, etc., within that city, and John H. Harbeck, respt. on its failure to do so the commis

Decided Feb. 1, 1884. sioners had the right to assess its capital stock according to the best in a case where cohabitation was illicitly information they could procure, 6

commenced, and has been meretriciously

continued for a long time, but is alleged Hun, 566; and that, since the re

by one of the parties to have been subse. lator had also failed to make any

quently changed into a lawful marriage, application to the tax commission- and an action for divorce is brought by ers to reduce its assessment be- such party on the ground of the adultery tween the second Monday of Jan.

of the other party in marrying a third

person, while evidence tending to show by uary and the 30th day of April,

presumption or inference that a contract 1881, which was the period pro- of marriage has in fact been made will vided by law during which they

not be excluded, the court will be very had power to make such correc

cautious in making such deductions or

inferences where the party alleging the tion, Laws 1859, Ch. 302, if it was

making of the contract fails to establish it assessed beyond the sum which

by his or her direct testimony; and in such should be imposed, it resulted from a case the court may refuse to find that its negligence and it must bear the

such contract has been made, although if

the rights of third parties or the legitimacy burden.

of children born to plaintiff and defendant That in view of the failure of re.

during their cohabitation had been inlator to make the above statement volved a marriage would have been found and application, and of the facts

from the evidence of an inferential nature

produced. existing, apparently, at the time

In such a case it is very doubtful whether of the imposition of the tax, there

the court ought not to require some positive was nothing to show that the as- and direct proof from the party alleging sessment was illegal, erroneous, or

the contract of marriage that it was in fact

made. unequal, and, therefore, the Court was not authorized by Ch. 269, Appeal from judgment of Special Laws of 1880, to make the correc- Term dismissing complaint. tion sought in this proceeding. This action was brought by

That there was nothing in said plaintiff for divorce on the ground last mentioned act exempting the of adultery. property of corporations affected The defence set up was that thereby from local taxation. 91 plaintiff and defendant were never N. Y., 574.

married, and the only proof of Order affirmed and writ dismiss adultery was an averment of the ed.

answer that defendant had duly Opinion by Brady, J.; Davis, married a third person with whom P. J., and Daniels, J., concur. he was lawfully living as husband.

Plaintiff was the chief witness on her own behalf, and from her tes | ant during their cohabitation, the timony it appeared that she had evidence would have justified a commenced cohabiting with de finding of the alleged marriage; fendant during the lifetime of her but that parties who have enhusband, but that such cohabita- tered upon relations of illicit cotion continued after his death, and habitation are not, when either of she claimed that she had subse them seeks to repudiate and quently become married to defend abandon such relations, affected by ant. She did not testify to any the rules of estoppel in part by formal ceremony or contract of which courts seek to protect the marriage as having taken place rights of third parties or to uphold between them, but the only proof the legitimacy of children, and, as of such marriage was a variety of between them, courts will not so circumstances and admissions from easily infer marriage in fact from which a marriage might well be the artifices and devices or repreinferred, such as that she had trav. sentations by which they seek to elled in Europe with defendant conceal the true character of such and was described in her passport cohabitation from their friends or as his wife; that he had registered the public. her as his wife at hotels, had so 0 ,

That, in the present state of the spoken of her in letters, had in law, the parties to an action of troduced her as such to third per. divorce are both competent witsons, and on one occasion, on her nesses on the question of marriage; upbraiding him with his attentions and if a marriage has been solemnto another woman, had said to her, ized between them, either publicly “What have you to fear, you are or privately, or a contract of mar. my wise in the eyes of the world." riage been entered into between On the other hand, evidence was them by private agreement, the given on the part of defendant to fact can be proved by the direct show that plaintiff had admitted testimony of the parties to it and that she was not his wife, and had to the action; and, while the law agreed to give up all pretensions to will not exclude evidence tending that relation and give him no to show by presumption or infertrouble on the payment of a stipn- ence that such a contract has in lated sum per annum.

fact been made, it will, and ought Howe & Hummel, for applt. to be, very cautious in making Silas M. Stillwell, for respt. such deductions and inferences

Held, That if the question of the where the party alleging the mak. case had arisen between defendant ing of the contract fails to establish and third parties who had dealt it by his or her direct testimony. with plaintiff in reliance upon her It is very doubtful whether the supposed relation of wife of de- court ought not to require some fendant, or if it involved the positive and direct proof of the question of the legitimacy of chil. marriage from the party alleging dren born to plaintiff and defend-it.

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