1. An action to recover money belonging to
an infant may be properly brought by an
infant in his own name by his guardian ad
litem.-Segelken v. Meyer, 425.
2. An action to recover personal property be-
longing to a deceased person may be main-
tained by his next of kin without the inter-
vention of an administrator under certain
circumstances, such as where the defendant
has admitted plaintiff's rights.-Id
8. In determining as to the custody of chil-
dren the interest of the child is the chief
consideration.-In re petition of Maurer,
4. Even where the mother is solely in fault,
the age, sex or health of the child may
make it the duty of the court to leave it in
her custody.-İd.
1. The court will not enjoin the Board of
Education of the City of New York from
procuring the fuel necessary for the use of
the public schools, except in a case where
no other remedy is possible for the protec-
tion and preservation of the rights of the
parties. French v. The Board of Education,
2. An injunction will not be granted when a
complete remedy exists by way of damages.
-Id.
3. When a person claims that he is legally
entitled to a contract to supply coal for the
use of the public schools, which contract
the Board of Education has illegally award-
ed to another, his remedy is by an action
for damages, and an injunction will not be
granted to prevent the Board from procur-
ing such coal from other sources.—Id.
4. An equitable action to restrain an interfer-
ference with plaintiffs' possession of real
estate and for damages for a forcible re-
moval of his agents therefrom cannot be
maintained by one who shows neither title
nor possession at the time of his entry. If
plaintiff or his agents have any remedy it is
one at law. Littlejohn et al. v. Attrill et al.,
299.
5. Where there has been a stoppage in tran-
situ of merchandise in the Custom House
before payment of duties on freight, the
court, in an action brought therefor, will
compel a transfer of the bills of lading by
the consignee to the owners to enable the
latter to properly enter the goods and take
possession under their lien, and an injunc
tion may issue against the sale or transfer
of the goods or bills of lading by the con-
signee or his assignee for benefit of credi-
tors.-Strahlheim et al. v. Wallach et al.,
6. When, in an action against several defend-
ants, the damages sustained by one of them
by reason of an injunction therein have
been ascertained in the manner provided
by 623 of the Code, a separate action
may at once be brought by such defendant
against the sureties in the undertaking to
recover such damages. where it appears
from the undertaking that several as well
as joint interests were intended to be pro-
tected by it. The Fourth Nat'l Bank of
New York v. Scott et al., 412.
7. Objection to defect of parties, when such
defect appears upon the face of the com-
plaint, is waived unless raised by demur-
rer.-Id.
8. Where defendant, without attempting to
meet plaintiff's case on the merits, seeks to
remove a temporary injunction by giving
an undertaking under the statute, plaintiff
may exact an undertaking in full and strict
compliance with the statute.-Chamberlain
v. The B., N. Y. & P. RR. Co., 431.
9. A corporation may be fined for violating
an injunction.-Abell et al. v. The N. Y.,
L. & W. RR. Co., 554.
10. Where a corporation has knowledge,
through its officers, agents and servants,
that an injunction order has been issued
against it, and thereafter performs some of
the acts restrained thereby, it is liable
therefor, although the order was not
served in strict regularity.-Id.
See APPEAL, 13; ARBITRATION, 3; Deeds,
4; HIGHWAYS, 5.
1. Officers of the army and navy and soldiers
and sailors who have no permanent resi-
dence may be regarded as travellers when
stopping at public inns or hotels, and to
make them chargeable as mere boarders it
must be satisfactorily shown that an
explicit contract has been made which de-
prived them of the privileges and rights
conferred on them by their vocation.-
Hancock v. Rand et al., 76.
2. Gen. Hancock applied to defendants for
board for himself and family in November,
1873, and stated that he would remain until
spring if everything was satisfactory and
he was not ordered away. He was assigned
rooms in a private house adjoining the
hotel. The statutory notice was not posted
in these rooms. In an action to recover for
goods stolen from said rooms, Held, That
H. and his family were transient guests and
not boarders, and that defendants were
liable.-Id.
INSURANCE COMPANIES.
1. The failure of an insurance com-
pany to procure a certificate of the
Superintendent of the Insurance Depart-
ment under Chap. 466, Laws of 1853,
within five years after the acquisition
of title to real estate will not invalidate its
title.-The Home Ins. Co. v. Head, 229.
2. When a person makes a claim against the
receiver of an insolvent insurance company
for payment out of the assets for services
performed by him, and a reference is or-
dered to ascertain the amount due such
claimant, if any, and the referee reports in
favor of the payment of a certain sum to
the claimant, it is the duty of the claimant
to pay the referee's fees in the first instance,
as incidental to the prosecution of his claim,
and an order directing the receiver to pay
such fees pending an appeal from the order
confirming the report is improper.-The
Atty. Gen. v. The Continental Life Ins.
Co., 260.
3. On an application by rival receivers of a
foreign corporation to share in the distri-
bution of an insurance deposit fund no
finding was made as to their conflicting
claims, but the report and judgments were
adverse to appellant's claim to represent the
company and to the right of the company
to share in the distribution. Held, That
appellant to succeed must show affirma-
tively from the facts appearing in the record
that the conclusions of the court below
were erroneous.-Reese v. Boese, 319.
4. It appeared that the fund fell short of sat-
isfying claims having a preference over
those of appellant, and there was no finding
that his company was the owner or holder
of the policies in question or entitled to
distribution therein. Held, That there was
a failure to show that the company was en-
titled to share in the distribution of the
fund.-Id.
See APPEAL, 28; ATTORNEYS, 6, 9; RE-
CEIVERS, 1.
1. In a case where interest is only allowed as
damages the legal rate must govern.-
Sanders v. The L. S. & M. S. RR. Co., 160.
2. The action was for dividends which de-
fendant unjustly withheld from plaintiff.
Held, That interest was allowable solely as
damages and should be computed at seven
per cent. to January 1, 1880, and at six per
cent, from that time.-Id.
3. Where interest is recoverable as a measure
of damages for breach of contract to pay
over certain moneys, and not by virtue of
the provisions of the contract, the legal rate
must govern, though the contract was made
long prior to the act changing the rate of
interest, which took effect January 1st,
1880. In such case interest on the recovery
since January 1st, 1880, must be at the rate
of six per cent.-Jermain v. The L. S. &
M. S. RR. Co., 403.
See CONTRACT, 10; TRUSTEES, 1.
1. Moneys belonging to her husband's estate
were loaned by his widow, his administra-
trix, on bond and mortgage in her own
name; she, by his will, being entitled to
the use of all his property for life, and also
to use the principal if necessary to her sup-
port; the widow died and no accounting
had been had between her administrator
and certain legatees under said will, whose
legacies are payable after the widow's
death. Both parties claim payment of the
mortgages and the representatives of the
legatees are in possession of the bond and
mortgage. Held, A proper case for an ac-
tion of interpleader, and that the mortgagor
should make payment to the administrator
of the widow.-Caulkins v. Bolton et al.,
873.
See BAR, 1; LIMITATION, 4.
1. It seems, That the purchaser of a judgment
cannot, under any circumstances, get a bet-
ter title thereto than his vendor had. - Mil-
ler v. Rogers et al., 119.
2. An equitable action to have a judgment at
law cancelled as having been obtained by
fraud cannot be maintained when the ques-
tions involved are precisely the same as
those litigated and determined in the action
in which the judgment was obtained.-The
N. Y. Elevated RR. Co. v. Harrold et al.,
150.
3. Every presumption must be indulged in
favor of a judgment. Error must be made
to appear affirmatively or by necessary in-
ference.-Peck v. Nichols, 268.
4. A transcript of a docket of judgment
should be a copy of such docket, and in
order to make it the duty of a county clerk
to whom such transcript is presented to file
it and docket the judgment in his office it
must be attested in such a form as to show,
by some intelligent statement of the fact in
the attestation clause, that the instrument
to which such attestation is appended is a
transcript of the judgment docket kept in
the office of the clerk signing the attestation
clause. The People ex rel. Crittenden v. Kee-
nan, 502.
See APPEAL, 14; BAR, 1, 2; ESTOPPEL, 7, 8;
EVIDENCE, 31; MECHANICS' LIENS, 3; NUI-
SANCE, 2; PARTNERSHIP, 5, 10; Towns.
See APPEAL, 12; DIVORCE, 8, 9; LUNATICS, 2;
NUISANCE, 1; POLICE, 4, 7; SURROGATE, 2,
8; TOWN BONDS, 2, 3.
1. The rejection of a competent juror is not
ground of error where the jurors who ac-
tually try the case are competent.-Hildreth
v. The City of Troy, 156.
See APPEAL, 22; HIGHWAYS, 2-4; PRACTICE,
11.
JUSTICES OF THE PEACE.
1. The provision of § 13, Art. 6 of the Con-
stitution, limiting the term of office of jus-
tices and judges, includes and applies to
justices of the peace.-The People ex rel. Law-
rence v. Mann et al., 298.
2. Chap. 564, Laws of 1881, so far as it pro-
vides for the election of justices of the
peace at a general election and forbids their
election at a town meeting and so far as it
purports to repeal existing statutes regulat-
ing the time and manner of holding such
elections at town meetings, is unconstitu-
tional and void.-The People ex rel. Smith v.
Schiellein et al., 519.
3. Where the justices as a board of canvass
ers neglect to canvass on the day appointed
ballots cast for justice at town meeting, the
party for whom such ballots were cast is
entitled to a mandamus requiring them to
perform such duty.—Id.
4. The writ is properly directed to any one
found in possession of the office and assum-
ing to perform the duties thereof; his title
to the office is not triable in the proceed-
ing.-Id.
See APPEAL, 25, 26; ATTACHMENT, 8: Costs,
14; COUNTY COURT.
LANDLORD AND TENANT.
See ADVERSE POSSESSION, 4; LEASE.
1. To constitute larceny there must be a felo-
nious intent, animo furandi or lucri causa.
-The People v. Woodward, 166.
2. The malicious killing of a horse is a mis-
demeanor.-Id.
3. The evidence tended to show a taking of a
horse by defendant to kill him, with a sole
desire to injure the owner. Held, That it
was incumbent on the Court then to point
out to the jury the legal elements in the
crime of larceny so as to distinguish it
from malicious mischief.—Id.
See CONVERSION, 2; FALSE IMPRISONMENT, 2.
1. When it is the custom of a landlord to
grant new leases to tenants in possession
under former leases which do not contain
covenants of renewal, a new lease so grant-
ed will be considered in equity a renewal of
the former one, and will be subject to the
lien of a mortgage on such former lease.-
Wunderlich et al. v. Wipfler et al., 34.
2. In pursuance of a resolution of the Board
of Supervisors, the parties hereto executed
a lease of certain premises as chambers for
the recorder for one year from May 1, 1872.
The recorder continued to occupy them
until July, 1877. Held, That if defendant
desired to terminate the lease it was its
duty to surrender possession; that as it con-
tinued the recorder in possession for several
years after the expiration of the original
lease, plaintiff had a right, in the absence
of notice, to assume that his remaining in
possession after May 1 was by the authority
or acquiescence of defendant and to treat it
as a renewal for another year.-Davies v.
The Mayor, &c., of N. Y., 62.
8. Where the proposed landlord and tenant
signed a lease in duplicate, tenancy begin-
ning on the evening of 1st of June, rent
payable monthly in advance, and the leases
were left with plaintiff's agent under a mu-
tual understanding that they were not to be
delivered until payment of the June instal-
ment, and upon defendant's calling for it
next day he was told that until such instal-
ment was paid he could not have the lease,
whereupon he stated that plaintiff might
keep the lease and property, Held, In an
action for rent thereon, that no recovery
could be had, as there had been no delivery
to and acceptance of the lease by defend-
ant.-Witthaus v. Starin, 138.
4. In the absence of a personal promise or
covenant, one signing a contract who there-
in represents himself to be the agent of a
disclosed principal and who assumes to
contract for such principal only cannot be
held personally liable upon the covenants
in such contract.- Whitford v. Laidler et al.,
141.
5. Plaintiff leased certain premises to a com-
pany, the lease running, defendants and
others as directors, &c. It was signed by
defendants in their individual names and
given to one K. with instructions to get the
signature of the other parties and then de-
liver it to the town clerk. Held, That until
this condition was performed the lease was
incomplete.-Id.
6. Where the landlord covenants with the
tenant to make certain repairs upon the de-
mised premises on or before a specified date
the damages to the tenant for failure to fulfill
such promise are to be assessed as of the
time of the breach, viz., the date specified
for making said repairs; and where the ten-
ant has suffered no special injury are
limited to such an amount as would com-
pensate him for himself making such re-
pairs, notwithstanding that he may have
been obliged to pay a third person dam-
ages caused after said date by failure to
make such repairs.-Sparks v. Bassett, 191.
7. Plaintiff leased the property of a railroad
for a term of years at an annual rental equal
to the interest on a mortgage given by the
railroad company to secure bonds. The
lease provided that plaintiff might be re-
lieved from payment of rent on paying the
principal of the mortgage and also for a
surrender at the end of the term. Plaintiff
afterwards leased all the property to the
Erie Railway Co. for the term and on sim.
ilar covenants. In an action to compel the
receiver of the Erie Co. to pay for the use
of the property, Held, That neither of the
leases were void as ultra vires, malum in se,
malum prohibitum or contrary to public
policy; that defendant, as far as his con-
tract has been executed, is estopped from
contesting the title of his lessor or the val-
idity of the conveyance by which he ac-
quired possession of the property, and this
estoppel applies to all who claim through or
under him; that plaintiff by his lease to
the Erie Co. became surety for payment of
the rent and had a right to call upon it to
indemnify and protect him from his col
lateral liability.- Woodruff v. The Erie R.
Co. et al., 197.
8. A clause in a lease providing that in case
the lessee shall abandon the premises at any
time the whole rent shall become due docs
not show an intention on the part of the
lessee to waive his right under the statute
to abandon in case the premises become
untenantable without his fault, and does
not bind him to pay rent accruing after
such abandonment.- Vann et al. v. Rouse
et al., 318.
9. Where the owner of a building lets it, not
as an entirety, but in separate apartments to
different tenants, reserving the common
passage-ways, he is bound to keep such pas-
sage ways in repair, and is liable for an in-
jury caused by his neglect to do so.-Dowd
v. Fitzpatrick, 343.
See EXECUTORS, &c., 8; MECHANICS LIENS,
8; NEGLIGENCE. 5-7; REPLEVIN, 3; TAX-
ATION, 1.
See SURROGATE, 3; WILLS, 5, 10.
1. A party injured has a right to recover spe-
cial damages when a claim therefor is prop
erly made in the complaint.-Bergman v.
Jones, 161.
2. When the falseness of a libel is proved, it
is sufficient to warrant the jury in giving
exemplary damages.―Id.
3. Where the plaintiff has proved that the re-
ceipts in his business had fallen off since
the publication of the libel, he has a right
to show that he has endeavored to counter-
act its effect and in doing so met with oppo-
sition attributable to the publication of the
libel.-Id.
4. In an action against a company formed for
the purpose of distributing newspapers, etc..
for damages for the publication of a libel,
plaintiff must prove that some one other
than herself has read the libel in some of
the papers so published, and it is not suffi-
cient to show that defendant sold several
hundred copies, presumedly to dealers, there
being no presumption that every newspaper
and every part thereof is read.-Prescott v.
Tousey, 468.
5. Evidence of social position and standing is
not admissible to increase damages in an
action for libel in imputing unchastity to a
woman.-Id.
6. A charge in such a case that in arriving at
the amount of damages the jury might bring
the question home to themselves, and say
for what sum they would, with their knowl-
edge of the world and of mankind, and of
the result of a defamation, be so libeled, is
erroneous. Id.
7. Evidence that plaintiff's reputation for
chastity is good is not admissible to rebut
defendant's evidence in justification of the
libel; but it may be made relevant by the
introduction by defendant of evidence that
plaintiff's reputation for chastity is bad.-
Id.
1. A notice given in pursuance of the provis-
ions of Chap. 498, Laws of 1872, is not re-
troactive as against a prior mortgagee.-
Jackson v. Kusseall, 52.
2. Where the owner of wheat shipped it to
commission men, and made a draft against
the consignees, which he got discounted
by plaintiff upon informing the latter of the
consignment, the discount being made
upon the credit of the wheat and plaintiff
relying upon the avails thereof for the ac-
ceptance and payment of the draft, and
the shipper became insolvent, and his as-
signee seized the wheat in transit, and the
drawees refused to accept the draft, Held,
That plaintiff has an equitable lien against
the avails of the wheat, for payment of the
draft, in preference to other creditors.-
The Flour City Natl. Bk. v. Garfield, 131.
See ATTORNEYS, 3, 4.
1. It is not within the power of a court of eq-
uity, in the absence of fraud and mistake,
to relieve the insured from a forfeiture oc-
casioned by his own inadvertent omission to
pay the premium stipulated to be paid in
the policy of life insurance to keep alive the
policy. Clausen v. Russell, 10.
2. In an action on a life insurance policy, the
company alleged in defence that deceased
committed suicide, Held, That the burden
of proof of the suicide was on the defend-
ant.-Germain et al. v. The Brooklyn Life
Ins Co., 107.
3. Mutual mistake or mistake on one side and
fraud on the other will authorize a reform-
ation of the contract.-Anderson v. The
Metropolitan Life Ins. Co., 192.
4. Plaintiff was induced to exchange a policy
on her husband's life for an endowment
policy on the agreement by defendant's
agent that the new policy should bear the
same date as the old one. On applying for
the endowmeut fund she discovered that the
date was two years later than the old one.
Held, A proper case for a reformation.-Id.
5. The policies in suit provided that they
should be void if the assured "should die in
or in consequence of the violation of the
laws of any nation, State or province." The
assured, with his brother, made a violent as-
sault upon one B., and after the latter had
drawn a pistol, endeavored to escape. when
he was shot and killed by B., who testified
that the shooting was not done intention-
ally. Held, That it was immaterial whether
the shot was fired intentionally or in self-
defense, or whether the assured had aban-
doned the conflict when he was shot; that
although B,'s testimony as to intention was
uncontradicted it would have been error for
the court to have directed a verdict; that
the case was properly submitted to the jury
and that they were justified in finding that
the shooting was a natural consequence of
the assault. Murray v. The N. Y. Life Ins.
Co., 252.
6. The receiver of an insolvent insurance
company, under authority of the court,
made an arrangement with a foreign com-
pany to reinsure all claims. A policy holder
who retained his policy paid one or more
premiums to the foreign company and then
ceased to pay. Held, That the policy holder
by such payments did not lose his recourse
against the remaining assets of the original
insurer; that such payments did not amount
to a recognition of the foreign company as
insurer or an assent to the contract between
the two companies.--Reese v. Smyth et al.,
1. Plaintiff presented to the Surrogate a claim
for care and board of her testatrix from
1863 to February, 1879, the time of her
death. It appeared that a payment on ac-
count thereof had been made in November,
1875, and that no payment had been made
prior thereto since 1868. The Surrogate
limited the recovery to such part of the
claim as accrued within six years prior to
testatrix' death. Held, Error; that the
payment was sufficient to operate as a re-
newal of liability, as by a new promise, for
whatever might be found to be actually due
for a time against which the statute had not
run at the time of such payment.—-Gilbert
v. Comstock et al., 101.
2. Prior to the time when the New Code took
effect the statutes of limitation of a foreign
state constituted no defense to an action
brought here.-Clark v. The L. S. & M. S.
RR. Co., 173.
3. The scope of S 414 makes applicable in the
case specified in subd. 3 the previous pro-
visions of law precisely as they stood before
the Code, whether formulated in statutes or
resting in judicial decisions, and notwith-
standing their repeal by the new law. A
rule or doctrine established by judicial de
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