thereupon attack his character, but no evi- dence of good character is given on his part, on a motion for a new trial, under
465 of the Code of Criminal Procedure, on affidavits showing the defendant's good character, such evidence is not cumulative and a new trial may be ordered, notwith- standing the fact that defendant had wit- nesses on that point in court, at his trial, who were not called by his counsel, when it appears that if such evidence had been given upon the trial, it would probably have changed the verdict.-The People v. Lane, 23.
2. Such applications will not ordinarily be re- ceived with favor, and each case must de- pend upon its own peculiar circumstances.- Id.
3. On the trial of an indictment for a feloni- ous assault upon one M. the prosecution was allowed to prove that shortly after said assault and in the absence of M. the prison- er had an altercation respecting him with one J., and that he then drew a pistol and attempted to fire it, when he was overcome and arrested. Held, That the evidence was inadmissible, as it had no relation to the case on trial.-The People v. Gibbs, 66.
4. After defendant's conviction of a felonious assault a motion was made in arrest of judg- ment, upon the ground, appearing by affi- davit, that during the prisoner's absence, and while the jury was deliberating, a written communication was sent by one of the jurors to the justice who had presided at the trial, and a written communication sent back by the justice to the jury. The motion was denied. What the communi- cation was did not appear, whether or not it related to the case, and nothing appeared with respect to it in the case as settled. Held, That, in the absence of any proof or circumstance showing otherwise, this Court will not presume that the communication related to the case, the motion having been denied, or was improper or prejudicial to the prisoner. Error will not be presumed, but must be shown. The facts disclosed do not warrant a reversal of the judgment.- The People v. Kelly, 234.
5. The defendant in an indictment may be cross-examined as to other acts of miscon- duct, not involved in the issue to be tried, which may affect his credit as a witness in the case, but the inquiry should be limited to acts reasonably attended with that result, and such cross-examination should be re- stricted to such acts as bear directly upon the present character and moral principles of the witness. The People v. Irving, 335.
6. The defendant on appeal can get no bene- fit from the admission of improper evidence by which he was not prejudiced.—Id.
7. One may not resist an officer who levies upon his property under an execution upon
a justice's judgment against a third party when the officer acts in good faith, believ- ing the property to belong to the debtor.- Hall v. The People, 357.
8. A motion in arrest of judgment must be made for some defect which appears on the face of the record and cannot be based on a mere affidavit showing the existence of facts outside of the record and which do not constitute a part thereof.-The People v. Kelly, 483.
9. After the jury retired a written communi- cation was sent from their room to the court who answered it in writing. Its nature was not disclosed. Held, That the presump- tion is that there was no violation of duty by the Court; that an affidavit of this fact could not be made the basis of a motion in arrest, but the proper practice would be to make a statement of the fact as a part of the case and exceptions, and thus enable the Court to make an explanation as to the character of the communication.-Id.-
10. Evidence to show the character of de- fendant to have been violent at other times from that on which the offence in question was charged to have been committed is im- material. Id.
11. The time counsel are to occupy in pre- senting a case to the jury rests to a great extent in the discretion of the Court. Where the time has been limited by the Court, the counsel for one party has a right to stop the opposite counsel when his time is up, and if he fails to do so cannot complain that the other counsel exceeded his time.- Id.
12. A commitment to the House of Refuge for the Reformation of Juvenile Delinquents which commits to that institution " Nicho- las Roach, aged fourteen years," contains a sufficient statement of the age of the per- son so committed and shows sufficiently that he is under the age of sixteen years as required by statute.—In re petition of Roach,
13. Section 688 of the Penal Code, prescrib- ing an increased penalty for a second offence, does not require that the subse- quent crime should be similar in degree to the first offence; and, under that section, a person who has been convicted of a felony within this state must be sentenced to im- prisonment for life on conviction of a second offence of such a character that, upon a first conviction of it, he might be punished, in the discretion of the Court, by imprisonment for life; and, if the subse- quent crime is such that, upon a first con- viction, the offender would be punished by imprisonment for any term less than his natural life, then such person must be sen- tenced to imprisonment for a term not less than the longest term, nor more than twice
1. In an action for false representations, in stating that certain land was clear of incum- brances when in fact a judgment was a lien upon it, it appeared that plaintiff still owed defendant upon the purchase far more than the amount of the judgment in ques- tion. Held, That plaintiff was entitled to recover only nominal damages, as he had as yet suffered no damages and was besides in a position, if compelled to pay the judg ment, to keep back the amount from the money still due defendant.-Post v. Lyke,
mortgage. Held, That the grantees, upon acceptance, became bound as covenantors to pay the mortgage.-Bowen v. Beck, 55. 3. An indenture is a deed inter partes or a mutual deed.-Id.
4. Where a church society accept a deed of a lot, with the provision therein that the grantees should keep erected on the lot a church building to be used as specified, and with the condition that if at any time said lot should be left vacant for two years the title should revert to the grantor, Held, That the grantor, a pew-holder. cannot by injunction, restrain the society from selling the church building; his remedy is re-entry or ejectment; and the grantees are under no covenant to keep the building erected on the lot conveyed.-Eroin v. Hurd et al., 158.
5. Where, in the description in a deed, the place of beginning of the premises con- veyed was stated to be at a point on the westerly side of an avenue, a certain dis- tance from the "southeasterly corner" of the avenue and a street, and the description con- tained evidence that the word the draughts- man intended to use was "southwester- ly corner," the court should, in the inter- pretation of this description, read it so as to transform the word "southeasterly" into "southwesterly," and defendant should be compelled to fulfill his contract to purchase the premises described in said contract in accordance with the corrected description. -Bookman et al v. Kurzman, 201.
6. To authorize a construction that the grantor of premises intended to retain title to the highway the language of the grant must exhibit such intention. Where a de- scription begins at the corner of two streets and not at the intersection of their exterior lines and the courses run along said streets and not along their sides, the grant carries the title to the centre of said streets.--Huss- ner v. The Brooklyn City RR. Co., 217.
7. It is not necessary that the premises con- veyed by a deed should be described there- in by boundaries, courses, or distances, or by reference to monuments; words of gen- eral description are sufficient.-Coleman v. The Manhattan Beach Imp. Co. et al., 241. 8. When words of general description are used oral evidence is admissible to ascertain the particular subject matter to which they apply.-Id.
9. Plaintiff purchased the premises in ques- tion and paid therefor, but by mistake they were omitted from the deed. There- after the assignee in bankruptcy of the the grantor, under order of the bankrupt court, executed a deed of the premises to correct such mistake. At that time de- fendants were in possession under a deed from the original grantors executed subse-
quent to plaintiff's purchase. Held, That the assignee's deed was not in contraven- tion of 1 R. S., 739, § 147.-—Id.
10. One who owns real property apparently incumbered by invalid mortgages may con- vey it in such manner as to enable his grantee to avail himself of such defenses to the enforcement of the mortgages as exist- ed in his own favor.-Bennett v. Bates et al., 341.
11. A clause in a conveyance making it sub- ject to a specified mortgage if there shall be found anything owing and unpaid upon the same" is sufficient to show an intention to convey the grantor's entire interest in the land and to subject it only to the payment of the sum actually owing on the mortgage. Such a conveyance enables the grantee to dispute the validity of any claim against the land which was open to the grantor to contest.-Id.
12. The owner of mills on a non-navigable stream sold a portion of its land and one of the mills by deed which reserved "the right at all times to use so much of the water in the river and dam which now is or may hereafter be therein, or in any dam erected hereafter, as shall be necessary to operate the present or any additional ma- chinery which may be hereafter put in the building now used by them, or in any build- ing to be erected on the site thereof, of the like or less dimensions." A statute of the State authorized a dam of only eight feet. Held, That this reference to the machinery was simply to measure and limit the quan- tity of water to be used; that quantity could be used for any purpose and any- where, and the grantor had the right to store it until he could take it and produce the power to which he was entitled; that there being no limitation in the deed as to the height of the dam, the water could be taken from the one then existing, or from any thereafter erected, without regard to the statutory limitation.-Groat et al. v. Moak, 387.
13. One C., who held a paper title to certain premises, executed a deed thereof to one T., whose wife at the time held the title to the premises under a former deed to T. Held, That the deed from C. was not cham- pertous; that it was possible that T. was in possession and that he took the deed with the knowledge and consent of his wife.- Whiting v. Edmunds et al., 417.
See CREDITOR'S BILL, 1, 5; EXECUTORS, &c., 8; MORTGAGE, 11.
1. In an action to recover for goods sold to a firm the receiver appointed in an action to dissolve the partnership was made a party by order of the court and interposed a de- fense that the goods were imported at an
under-valuation and in violation of the rev- enue laws. No such defense was interposed by the original defendants. The receiver's petition to be made a party alleged collusion between plaintiffs and one or more of the defendants, on information and belief, but did not give the source of information nor name any of the defendants. Held, That this statement was insufficient to support the order and the defense interposed could be of no avail; that the original defendants not having pleaded such defense were not in a position to insist that the goods were shipped to them in violation of law and hence that they could not be sued therefor. Honegger et al. v. Wettstein et al., 397.
2. Foreigners are not presumed to be ac- quainted with our revenue laws, and every intendment is to be made in their favor. -
3. One of the firm testified in support of the defense interposed by the receiver. Held, That he was an interested party and that the question of his credibility should have been submitted to the jury.-Id.
See LIMITATION, 2; MORTGAGE, 5, 7.
1. An order for the examination of a party before trial should not be granted, and if granted should be vacated, where the mov- ing papers show that the testimony which is sought relates exclusively to frauds with respect to which the party sought to be ex- amined is privileged from testifying. --An- drews v. Prince, 237.
2. A party who resides in the State cannot be required to attend for examination before trial in any county other than that in which he resides or where he has an office for the regular transaction of business in person, and there is no exception in favor of coun- ties in which the place of trial is laid.- Gustaf v. The American SS. Co., 297.
3. Upon an application under § 870, etc., of the Code of Civ. Proc. for the examination of a person before trial, whether a party to the action or not, the applicant must state, by affidavit, facts and circumstances show- ing that the testimony sought is material and necessary to his case.--The Wayne Co. Sargs, Bk. v. Brackett et al., 530.
4. Proceedings supplementary to execution are special proceedings within the intent of
825, Code Civ. Pro., and the depositions of witnesses taken thereon must be filed with the County Clerk, though they were not used upon the application for a receiv- er, and though the testimony was taken down and written out by a stenographer paid by plaintiff's attorney.-Foster v. Twigg, 563.
See EVIDENCE, 13, 22; WILLS, 19.
1. Permission to discontinue an action which has been settled by the parties after issue joined without the intervention of their attorneys will not be refused merely be- cause their attorneys raise objections to such settlement, and especially where no fraud or collusion is shown.-Roberts v. Doty, 465.
See ARBITRATION, 2; EMINENT DOMAIN, 8.
1. Upon a motion under the Code for discov- ery and inspection of writings, the chan- cery rule as to a bill of discovery still ob- tains, viz., that the applicant may have a discovery of matters necessary to maintain his own title, but not of matters going only to the title of his adversary, and it is only where he is entitled to a discovery of deeds, etc., for the purpose of establishing his own case that his right is not affected by the circumstance that the same deeds are also evidence of his adversary's title.-The Shoe & Leather Reporter Assn. v. Bailey, 296.
2. Where the action is brought to recover the amount of a balance of moneys alleged to have been received by defendant as plain- tiff's agent, and the complaint is drawn up- on the face of certain accounts rendered by defendant as such agent, he is entitled to an inspection thereof, though the complaint after setting forth a demand of such bal- ance from defendant and his refusal to pay alleges that he has converted the same to his own use. The Inyo Consolidated Mining Co. v. Pheby, 354.
3. The General Term having reversed an or- der denying an inspection order, the Special Term, to enable plaintiff to apply for a lim- itation of the General Term order, granted a stay unless defendant would stipulate to take an inspection under supervision of a referee. This defendant refused to do and appealed. Held, That defendant having refused to accept the terms lawfully im- posed, the General Term had a right in its discretion to renew such terms or to refuse to do so and make the refusal effectual by denying an inspection entirely, and its order thereon is not reviewable.-Clyde et al. v. Rogers, 482.
1. Section 5, Chap. 172, Laws of 1865, giving authority to a magistrate to commit any children under the age of sixteen years de- serting their homes without good and suf- ficient cause, or keeping company with dis- solute er vicious persons, against the law-
ful demands of their fathers, mothers, &c., to the House of Refuge in the City of New York, is not inconsistent with any of the provisions of the Code of Criminal Proced- ure or of the Penal Code, and consequently is not repealed thereby.-In re petition of Riley, 515.
1. Where piaintiff in an action for divorce, relying on defendant's promise that he would pay her from time to time a fair amount, etc., in lieu of alimony, refrains from making provision therefor in the de- cree, though the same was demanded in the complaint, she cannot thereafter have the decree amended in that regard.—Johnson v. Johnson, 27.
2. The rule of evidence in an action for di- vorce a vinculo is the same as in other civil actions. A mere preponderance of evidence is sufficient. The rule requiring proof be yond a reasonable doubt, as in criminal cases, does not apply.-Allen v. Allen, 184.
3. The referee's report in an action for divorce a vinculo must be confirmed or judgment de- nied. The case cannot be opened for fur- ther testimony; court has power only to direct a new trial. It is error to set aside all proceedings and send case to Circuit after a report that is free from fraud, collu- sion or irregularity has been made.-Ross v. Ross, 208.
4. After the entry of final judgment in plain- tiff's favor in an action for divorce brought by the wife, the court has no power to grant a counsel fee to plaintiff's attorney to rec ompense him either for services performed prior to the entry of such judgment or for those performed by him in resisting an ap peal by the defendant to the General Terin and the Court of Appeals.- Winton v. Win- ton, 262.
5. When, on an application for alimony and counsel fee in an action for divorce, the plaintiff swears that she is informed and believes that the defendant has an annual income of $10,000, statements by the de- fendant, in his opposing affidavits, to the effect that he is embarrassed in business, and largely indebted, and unable to pay alimony, &c., will not warrant the denial of such application, or a reduction on ap- peal of an allowance of $150 per month and $500 counsel fee.-Lloyd v. Lloyd,
6. If plaintiff's statement of the amount of defendant's income was not correct de- fendant should have denied it directly.- Id.
7. The Code of Civil Procedure has not taken away the power of this court to make an order for counsel fee and alimony pendente lite in an action for divorce on the ground
of nullity of the marriage.-O'Dea v. O'Dea,
8. The provisions of 2 R. S., 148, § 59, con- ferring upon this court jurisdiction to make such order as between the parties to a divorce suit, even after judgment, for the custody, care and education of the children of the marriage as the occasion may require, are not repealed by Chap. 245, Laws of 1880, as to actions of divorce theretofore deter mined, as appears by sub. 2 of § 3 of the Act of 1880, although otherwise repealed. -Catlin v. Catlin, 442.,
9. This court has jurisdiction, therefore, after a decree of divorce, made in June, 1874, and prior to said Act of 1880, making no provision for the education of the child of the marriage, to direct that defendant, the father, make suitable pecuniary provision for the education of the child of the mar- riage, although the court by the final decree has lost jurisdiction to modify the decree of divorce for the wife's benefit.- Id.
10. An order directing the payment of ali- mony by the husband to the wife cannot be made after the entry of a decree of separation making no provision therefor; but provision for the support of children may be made.-Erkenbach v. Erkenbach, 444.
1. Where testator by his will gives to his wife a certain sum which is to be accepted and received by her in lieu and bar of her dower and of all claims she may have upon or against his estate as his widow, she takes no portion of a dower interest in that part of the estate undisposed of by reason of legacies having lapsed or invalid disposi- tions in other ways.-Bullard v. Benson et al., 266.
2. On the death of a man intestate and leav- ing him surviving a mother, a sister and a widow, the mother takes a life estate in all his lands with remainder to the sister, and an unassigned right of dower which the mother previously had in such land be- comes merged in said life estate. -Aikman v. Harsell et al., 389.
3. In such a case the maxim dos de dote peti non debet does not apply, and the widow is, therefore, entitled to dower in the whole estate, and not in two-thirds of it only.- Id.
4. There are no statutory provisions regula- ting costs in an action for the admeasure- ment of dower under § 1596, et seq. of the Code of Civ. Pro. and, consequently, costs in such an action are in the discretion of the Court.-ld.
5. Testator by his will gave to his wife the use of all his property during her lite on
condition that she should keep the property insured, pay all taxes and assessments and keep the property in good repair, and on her death gave said property to his chil- dren. Held, That the provision made for the widow was so repugnant to a claim for dower that they could not stand together and that the widow having entered and pos- sessed under the devise for more than one year was not entitled to dower.-In re es- tate of Zahrt, 479.
6. Except in the case of dower under sub. 3, 2793 of the Code, a widow is not absolutely entitled under Rule 71 to a gross sum in lieu of her annuity, but the granting there- of rests in the discretion of the court.-Id. See EVIDENCE, 5; MORTGAGE, 1.
See EVIDENCE, 21; RELEASE.
1. Plaintiff sold certain land to defendant J., under an agreement that the use of light from all openings on one side should be re- served for the use of plaintiff. Defendant J. conveyed the land through a third party to defendant R., his wife, whereupon the latter procured a mortgage previously ex- isting upon the property, which had been assumed by defendant J., to be foreclosed, and upon the sale made under the judg ment she became the purchaser and took the deed. Held, That this vested in her the entire interest and estate of the mortgagor and mortgagee as it existed at the date of the mortgage unaffected by subsequent in- cumbrances and relieved the land from the easement reserved in the deed to her hus- band.-The Rector, &c., of Christ Church v. Mack et al., 3.
2. To establish a right by adverse possession under a parol agreement to take water from the spring of another by means of pipes laid through his lands, the proof must be entirely clear as to the nature and specific character of the agreement. - Cronkhite v. Cronkhite, 399.
3. H. C. & J.C. entered into a parol agreement by which they were to lay pipes on the lands of J. C. to carry water from a spring to the houses of J. C. and H. C. Each was to pay half the expense and do half the work, and H. C. was to have the right to take water from the spring through pipes in perpetuity. No agreement was made as to the size of pipes, their depth below the surface, amount of water to be carried therein or to be used by either party, nor how long the pipes were to be continued. Held, That the agreement had reference only to the surplus water belonging to J. C., and that in case of a deficiency or an in- crease in the use by J. C. the agreement might be ended; that a valid agreement in
« PreviousContinue » |