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Held, That although it was prov- Appeal from judgment of county ed that defendant was guilty of court entered on a decision rennegligence, nevertheless, since it dered upon trial without a jury. did not appear that the deceased Replevin to recover possession was not guilty of contributory of a mare, cutter, harness and negligence, the complaint was blankets, owned originally by one properly dismissed. 84 N, Y., 56; Palmer. On Aug. 8, 1878, Palmer 78 N. Y., 480.
executed to one Peck a mortgage Johnson v. H. R. RR. Co., 20
on a wagon to secure him for hav. N. Y., 65 ; Weber v. N. Y. C. & ing indorsed a promissory note for H. R. RR. Co., 58 N. Y., 461; $150 for Palmer's accommodation. Ruggles v. N. Y. C. & H. R. RR. On February 24, 1879, Peck hav- . Co., 58 N. Y., 251 ; Mitchell v. N. ing paid said note, and also $40 Y. C. & H. R. RR. Co., 64 N. Y., more on Palmer's account, Palmer 656 ; Moody v. Osgood, 54 N. Y., executed to him a mortgage upon 496, and Smedis v. Brooklyn & the mare, cutter and harness, to Rockaway Beach RR. Co., 88 N. secure the payment to Peck of Y., 13.
$190, in three months thereafter, Judgment affirmed.
with interest. On the day last Opinion by Brady, J.; Daniels, mentioned, Palmer, for valuable J., concurs; Davis, P. J., dis consideration, executed to plainsents on the ground that there tiff a mortgage upon the property was no failure of proof on the part in suit, to secure payment of $500, of the plaintiff, inasmuch as the in three months, with interest. law presumes, in the absence of all Each mortgage was duly filed. At proof to the contrary, that every the time of execution of the person uses ordinary and reason- several mortgages, and for some able care for the safety of his life time prior and subsequent thereto, and limb, and that it belonged to defendant kept a livery and boardthe jury to determine whether or ing stable, and by agreement made not plaintiff's intestate had been with Palmer in February, 1878, he guilty of contributory negligence. boarded the mare, and took care
of her and of the other mortgaged property
Palmer used the propLIEN. LIVERY.
erty as he wished until July 28,
1879. On the day when the second N. Y. SUPREME COURT. GENERAL
mortgage was executed to Peck, TERM. FOURTH DEPT.
Peck saw Palmer and defendant Doctor F. Jackson, respt., v.
at the stable, and caused Palmer to Anthony H. Kasseall, applt.
pay defendant all he then owed him
and afterwards and on the same Decided, June, 1883.
day defendant executed to Peck
the said second mortgage, which A notice given in pursuance of the provisions of Chapter 498, Laws of 1872, is not
fact defendant then well knew. retroactive as against a prior mortgagee. On July 28, 1879, the Peck mortgages were assigned to plaintiff. So the defense fails as to all the On the same day defendant served property in dispute except the on Palmer a written notice of claim
mare. of lien for keep, care and storage
Defendant had no lien upon the of said property. On August 1, mare, as against plaintiff's mort1879, plaintiff demanded posses- gages, for that part of his demand sion of the property in suit from which accrued prior to his giving defendant, and the latter refused notice of his claim. And he is lito deliver possession until paid able for detention of the mare $95.72, claiming lien for that a- after she was demanded by plainmount as a boarding stable keeper. tiff. The notice had no retroactive After such demand and on the effect as against the mortgages. same day, defendant served on If defendant suffers a hardship it plaintiff a notice
as follows : is the result of his delay. 28 N. Y., " Rochester, August 1, 1879. To 252. Doctor F. Jackson. Take notice, Scott v. Delahunt, 65 N. Y., that the amount of my claim and 128, distinguished, charges against you for the care Whether a lien for past charges and keep and board of your brown can be created against an owner mare ‘Dollie,' is the sum of 86.93, is another question, which we do and it is my intention to detain not consider. such horse in my possession until Judgment affirmed. such charges and all further
Opinion by Smith, P. J.; Har. charges for care, keep and board din and Barker, JJ., concur. of said mare are paid. Yours, &c. A. H. Kasseall." At the time when Peck received his mort
WILLS. gages he knew the property in
N. Y. COURT OF APPEALS. question was kept by Palmer at said stable and defendant's terms Livingston et al., exrs., v. Gorfor the keep, care and storage don et al. thereof, and plaintiff knew the
Decided Oct. 2, 1883. same as early as May, 1879. J. S. Garlock, for applt.
Testator by his will bequeathed a certain sum D. C. Hyde, for respt.
to his executors in trust to invest it and pay
the income to the New York Home for the Held, That at common law a
Blind so long as it should maintain and livery stable keeper or agister has care for one G., and in case it should care no lien without special contract for him during the balance of his life, then to that effect. 3 Hill, 485, 491, 192.
in trust to pay the principal to said institu
tion, but in case it ceased to exist or mainThere being no special contract
tain an institution for the care of the blind, here, the case rests upon the stat- then in trust to pay the income to any other ute, Ch. 498, Laws of 1872, which society that should care for said G. and gives no lien upon anything but
which he might select, and to pay the prin
cipal to such society as should be support. the "horse or horses" for the
ing him at his death. Held, That G. was keeping of which the debt accrued. not entitled to the income of the fund, but
to his support at some incorporated institu- The referee found that G. might tion.
select some other incorporated The will of McC. contained the society ; that $750 was a proper following provisions: “I give and amount to be paid annually for devise to my executors the sum of his support, and that he should be thirty-two thousand dollars, in paid for his past support $2,947.91, trust, to invest the same and pay being at the rate of $750 per anthe interest thereof semi-annually num. The Special Term made an to the New York Home for the order confirming the referee's reBlind, of 219 West 14th street, so port and directing the payment of long as that institution shall main- $1,050 to him annually hereafter, tain and care for William Gordon, and allowing him to select a place now an inmate of that institution, of residence other than the insti. and in case he shall be so cared tution of some incorporated sofor and maintained during the bal- ciety, and the payment of $500 to ance of his life, then in trust to his attorney for costs and expenpay the principal sum of said The General Term reduced thirty-two thousand dollars to the amount to be paid to $750 per said institution, and in case the annum, restricted his place of resaid society shall cease to exist or sidence to the institution of some to maintain an institution suitable incorporated society, and reduced for the care of the blind during the the costs to $10, and directed that life of said William Gordon, then $750 be hereafter paid annually in trust to pay the income of said for the support of G. This order thirty two thousand dollars to any was appealed from. other society that will maintain
Sidney S. Harris, for applt. and care for said William Gordon, and which he may select, and to
E. S. Ives and E. C. Boardman,
for respts. pay the principal of said thirtytwo thousand dollars to such so- Held, That the order of the Genciety as shall at the death of said eral Term was correct; that G. William Gordon be supporting was not entitled to the income of and maintaining him."
the fund, but to his support in A referee was appointed to take some incorporated institution, as proof of all the facts and circum- fixed in the report of the referee. stances relating to or affecting the Also held, That this was not a right of G. to be allowed his sup- case for an extra allowance. port and maintenance at the insti. Order of General Term, modifytution of said society or elsewhere, ing order of Special Term, affirm and what is a proper amount to be ed. paid to said G., if any, for his Per curiam opinion. All conreasonable support and mainte- cur. nance, under said will, to the time of said report and during his life, provided he resided elsewhere.
Martin J. Keogh, for respt.
Held, That the agreement must N. Y. COURT OF APPEALS. be regarded, so far as the defendCarpenter, applt., v. Le Count, ant is concerned, as a valid conrespt.
tract between him and the plain
tiff ; that having been signed by Decided Oct. 26, 1883.
the owner of the property and Plaintiff entered into a written agreement
carried into effect it must be conwith one A., who held a chattel mortgage
sidered as a
written agreement on his property, which provided that said between the parties with the property should be sold by defendant, an
auctioneer which fixed the amount auctioneer, and fixed his commissions at 5 per cent. This was not signed by de
of the fees to be paid him ; that fendant, but was carried into effect. lleld, as he was authorized under the That the agreement having been signed by agreement to charge five per cent. . the owner of the property must be con
commission no action can be mainsidered as a written agreement between the
tained against him for a penalty parties with the auctioneer which fixed the amount of his fees, and that no action
in violation of the provision of could be maintained against him for a $ 24, 1 R. S., 532. penalty for violation of the provisions of
Judgment of General Term, 1 R. S., 532, $ 24.
affirming judgment for plaintiff, In April, 1876, plaintiff owned affirmed. certain chattels on which he gave Opinion by Miller, J. a mortgage to one A. due on de
cur. mand. In June, 1876, he arranged with A. that the mortgage should DEEDS. MORTGAGE. be considered due without demand and A. was to take posses
N. Y. COURT OF APPEALS. sion under the mortgage, and a Bowen, respt., v. Beck, impl’d, written agreement was executed
applt. between plaintiff and A. to that
Decided Nov. 20, 1883. effect, which provided for the compensation of defendant as A mortgagor conveyed a portion of the premauctioneer and fixed his commis- ises by warranty deed by which the gran
tees assumed and agreed to pay the mortsions at five per cent. This agree
gage. Held, That the grantees, upon acment was not signed by defendant.
ceptance, became bound as covenantors to It not only conferred authority pay the mortgage. for the sale of the goods upon de
An indenture is a deed inter partes or a mu
tual deed. fendant, but provided for the distribution of the proceeds. It was This action was brought for the carried into effect with plaintiff's foreclosure of a mortgage. It apassent, and was executed with the peared that after the mortgage was intention of fixing a larger com- given the mortgagor conveyed a pensation for the auctioneer than portion of the premises covered by that fixed by statute.
it, by warranty deed, to the deM. M. Silliman, for applt. fendants B. & T., by which the
grantees assumed and agreed to business was carried on at different places pay the mortgage and to which and was separate and distinct. Held, That
the parties to the drafts were two firms the conveyance was made subject.
within the meaning of plaintiff's by-law Ransom & Joyce, for applt. requiring that the names of two responsible George W. Bowen, for respt. parties should be on all discounted paper ; Held, That the grantees became
and that the discounting of these drafts was bound, upon acceptance, as cove
not a loan of money within the prohibition
of the statute. nantors, to pay the mortgage. 54
Defendant, in violation of a by-law, discounted N. Y., 35; 2 Zab., 311; 27 Alb. L. his own notes and used the proceeds in J., 33; Platt on Cov., 11.
speculating in wheat, for doing which he The deed in question purports
was discharged. He then deposited the
amount of his notes and demanded their to be and was accepted as an in- return, which was refused, but the money denture.
was retained by plaintiff. Held, That Held, That for the purpose of
plaintiff was bound to elect whether it
should require the money to be returned or the remedy it may be regarded as
the wheat surrendered to it, and that when the deed of both parties. An in
it accepted the money it surrendered all denture is a deed inter partes, or interest in the wheat and was not entitled a mutual deed. Co. Litt., 231a; to the profits arising on its sale. Sir H. Finch on the Law, 109.
Reversing S. C., 14 W. Dig., 290. Judgment of General Term, af- This action was brought by firming judgment of foreclosure plaintiff against defendant,who had and sale and for deficiency, af- been its cashier but had been refirmed.
moved, to recover damages on acOpinion by Andrews, J. All count of defendant's negligence concur.
and violation of duty, and to com
pel him to pay over profits alleged BANKS. CASHIER. to have been made by him by un.
lawfully using plaintiff's funds. N. Y. COURT OF APPEALS. Plaintiff's by-laws provided for
"a standing committee, known as The Second National Bank of Oswego, respt., v. Burt, applt.
the exchange committee, consist
ing of the president, cashier and Decided Oct. 2, 1883.
one director," who were author
ized to discount bills, &c., and Plaintiff had no exchange committee as required by its by-laws, and its discount com
were required to report at each mittee held no meetings. Defendant, as meeting of the directors. . The cashier, with the knowledge and tacit con- cashier was authorized, with the sent of the president and directors, discount
assent of the president, to make ed certain drafts, the parties to which were then of good credit but failed before matu
“discounts of an ordinary characrity of the drafts. Lield, That defendant ter,” which were to be reported to was not liable for the loss as there was no the committee, if not then in sesclaim that there was any want of integrity, sion, at its next meeting. No ex
judgment or skill on his part. Defendant discounted drafts drawn by p. change committee as provided for
& Co. upon W. & Co., two firms whose was appointed. The board of members were the same persons but whose directors appointed a discount