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
« PreviousContinue » |