treasurer, or in the absence of a president or treasurer eo nomine upon a person discharg- ing the duties of president or treasurer under a different name.-Hathaway v. The Am. Mining Stock Exchange, 328.
4. The words president and treasurer, as used in 1919 of the Code, mean a president or treasurer in the ordinary acceptation of the term-a person discharging the functions and duties of such officers by whatever name called.-Id.
5. A mere allegation in an affidavit for an order of publication that defendant is a non-resident affords no ground for assuming that due diligence has been used.-Kennedy v. The N. Y. Life Ins. & Trust Co., 568. 6. An affidavit alleged that defendants could not after due diligence be found in the State, they being residents of another State; that the summons had been duly issued for them, but could not be served personally on them by reason of such non- residence. Held, That no facts were stated which would confer jurisdiction to grant an order of publication.-Id.
See LUNATICS, 2; SURROGATE, 7.
1. In an action for services plaintiff testified that defendant agreed to pay him a propor- tionate share of his expenses and a reason- able compensation for services in selling certain lands, and upon his becoming dis- couraged urged him to proceed and re- peated his promise; that plaintiff gave defendant a detailed account of his ex- penses, which the latter promised to pay. The evidence was corroborated to some extent and was not squarely contradicted. Held, That a finding for plaintiff was not manifestly against the evidence and should stand.-Sherwood v. Hauser, 301.
2. An employer is entitled to at least the whole of the day upon which services were completed to pay for their performance, in the absence of any agreement as to when the services should be paid for; an action, therefore, brought on the day of the com- pletion of the services is prematurely brought.-Smadbeck v. Sisson et al., 407.
See Costs, 5-7, 10; EXECUTORS, &c., 5.
1. An action against a sherif for an escape is local.-Roach v. Odell, 204.
2. Where the sheriff has acted in good faith and with diligence and the action is based upon technical grounds, he should not be required to admit away any legal defense as a condition to retaining the venue in his county. - Id.
3. The statute prohibiting sheriffs and other officers from taking bonds in any other case or manner than such as are provided by law applies only to bonds which may be required by the officer from parties becom- ing subject to his authority, and has no reference or application to a bond taken by the sheriff to indemnify himself against the consequences of a levy under an execution upon property claimed by some person other than the judgment debtor, and does not prohibit the sheriff from taking such a bond.-O'Donohue et al. v. Simmons, 336.
4. A surety on a bond given to the sheriff to indemnify him for levying, attaching, and making sale under an execution of personal property judged to belong to the judgment debtor, but to which a third person makes a claim, is only liable for the act of the sheriff in seizing such property, and for such sum as was appropriated from the avails to the satisfaction of the judgment, and not for any of such property which may have been lost or misappropriated by the sheriff while in his hands under the levy.-Id.
5. The provisions of the Code of Civil Procedure, $ 1421 to 1425, authorizing the substitution of the sheriff's indemni- tors as defendants in his place in an ac- tion against him for wrongful levy, etc., are unconstitutional and void.-Hein v. Davidson, 381.
6. The remedy given to a judgment creditor by 708, Sub. 3 of the Code, in case of in- terference with the sheriff, is given solely for the injury occasioned by a wilful with- holding and concealment of property and arises only when the sheriff is unable to re- gain possession and dispose of such prop- erty.-Scott et al. v. Morgan, 413.
7. A sheriff who attaches a debt under a war- rant of attachment by delivering a copy of such warrant to the debtor and taking a certificate of indebtedness from him is en- titled to have the amount of such debt paid over to him during the pendency of the action in which the warrant was issued, and if the debtor refuses to do so the sher- iff may maintain an action against him to recover such debt. In such action it is not necessary to allege in the complaint that it has been brought by the direction of the court or judge.-Davidson v. The Chatham Nat'l Bank, 503.
8. A judge who, under § 3307, sub. 2, Code Civil Pro., adjusts the sheriff's fees and ex- penses on an attachment has no authority to add to the adjustment a direction for the payment of the amount.-Hall et al. v. The U. S. Reflector Co., 504.
9. By sub. 2 of § 3307, Code Civ. Pro., the judge who issued the warrant of attach- ment is vested with the authority to adjust the sheriff's fees and expenses thereunder,
and no power to do so is conferred upon the court, and, therefore, an order made by the court making such adjustment is inop- erative.-Id.
See CREDITOR'S BILL, 2; EVIDENCE, 19; FRAUD, 2.
1. Evidence by defendant as to prior difficul- ties or malice between him and plaintiff is competent upon the question whether the slander was uttered in the spirit of malice, hatred or revenge; and defendant may tes- tify as to the existence or non-existence of malice on his part.-Crowell v. Day, 97.
2. Proof of repetitions of slanders of the same character and import as those charged in the complaint, occurring before suit, is competent.-Id.
3. Proof of malice, wantonness or a disposi- tion to annoy or oppress plaintiff is neces- sary to carry exemplary damages.-Id.
SPECIFIC PERFORMANCE.
1. B. & M. received a subscription of $3,000 from plaintiff, which they were to use with other funds in buying stock and bonds of a certain company and for which they were to deliver to him 150 shares of said stock. Plaintiff paid the $3.000. Thereafter B. purchased said stock and bonds but refused to deliver said shares to plaintiff. In an action for specific performance it was found that the stock was not easily purchaseable and that a judgment in damages would be an inadequate remedy. Held, That B. held toward plaintiff a fiduciary relation, and that although the contract was not in writing, yet as it had been partly per- formed B. should fully execute it.-John- son v. Brooks, 61.
2. To entitle a party to a decree for specific performance it is sufficient that his case is good, his right clear and the remedy at law defective, or its enforcement attended with doubt or difficulty.-Id.
See DEEDS, 5; HEIRS, 4.
STATUTE OF FRAUDS. See FRAUD, 11, 14-17.
1. Statutory repeal by implication is not fa- vored and courts are bound to uphold the former law if both can subsist together.- Baird v. The Mayor, &c., of N. Y., 39.
2. The general act of Congress of July 27, 1866, providing that the compensation and traveling expenses of Government direct- ors, etc., of corporations, be paid by the companies respectively for which they were appointed, and that such compensation be
fixed at $10 per day while employed and traveling expenses at ten (10) cents per mile, was a valid exercise of legislative power by Congress, and came fairly within the limits of its reserved power of amendment. -Brewer v. The Union Pacific RR. Co., 426.
See CHATTEL MORTGAGE, 4; CONSTITUTIONAL LAW, 4; CORPORATIONS, 22; DISORDERLY PERSONS; DIVORCE,8; EXECUTORS, &C.,10; N. Y, CITY, 3, 4; RECEIVERS, 8; TOWNS, 2; WILLS, 36.
1. One who, at the request of another, ad- vances money to redeem or even to pay off a security in which that other has an inter- est or to the discharge of which he is bound, is not a volunteer, and in the absence of an express agreement one will be implied if necessary that it shall subsist for his use, and it will be so enforced.-Gans et al. v. Thieme et al. 69.
2. One T. died, leaving his property encum- bered by a mortgage. His widow, who was the executrix, subsequently remarried, and she and her husband borrowed money of plaintiffs with which they paid off the mortgage and had it satisfied of record and gave a new mortgage to plaintiffs. Neither she nor her husband had any personal inte- rest in the premises, nor was she authorized by the will to mortgage the real estate. Held, That plaintiff's loan was in fact made for
the benefit of the estate, and that as against those taking the premises under the will plaintiffs were entitled to have the satisfac- tion cancelled and to be subrogated to the lien of the original mortgages.—Id.
3. Plaintiff purchased certain bonds secured by a second mortgage on condition that the proceeds should be used to pay off the prior mortgage, which was done, but the bonds were afterwards declared usurious and void. In an action to revive and foreclose the prior mortgage, Held, That as plaintiff's claim to subrogation arose out of the usuri- ous agreement and could not be established without a resort to that agreement the ac- tion could not be maintained.-Baldwin v. Moffett et al., 105.
See MORTGAGE, 18; RECORD, 2.
SUPPLEMENTARY PROCEEDINGS.
1. The production and proof of an order made in supplementary proceedings reciting the facts necsssary to give the court jurisdiction to act furnishes conclusive evidence of the regularity of such order when questioned collaterally and prima facie evidence of the existence of such facts.- Wright v. Nos- trand et al., 248.
See DEPOSITIONS, 4; EVIDENCE, 13; RECEIV- ERS, 14.
1. In an action against sureties on a bond given for the faithful performance of duties by one H, the answer contained no denial of the facts alleged in the complaint, but alleged that defendants had no knowledge or information sufficient to form a belief as to whether or not H. was at the time the action was commenced indebted to plaintiff "in the sum mentioned in the complaint or in any other sum and therefore deny the same." Held, That this was merely a de- nial of a legal conclusion and put in issue no fact alleged.-Emery v. Baltz et al., 226 2. H. was arrested on an order of arrest in an action brought against him by plaintiff, and was subsequently released on giving an offer of judgment. Held, That this did not discharge defendants from liability as sureties. Id.
3. In an action against the sureties on a bond for faithful performance, evidence that after the principal failed to perform de- fendants notified plaintiff that they wished to withdraw the bond and were induced to remain by his assurance that he would not let the principal get behind and if he did would stop his business and notify defend- ants, and that he did not do so, but let the liability increase, is competent.-Id.
4. Where a surety signs a bond upon con dition that it is not to be delivered until another person becomes a party to it, a de-
livery in violation of that condition will not be effective against him.—Grimwood v. Wil- son et al., 313.
5. If a surety, on executing an undertaking required by the Code to be given in an ac- tion, attaches to it the above mentioned con- dition, the filing of such undertaking in violation of said condition will be a defense to an action against the surety on the un- dertaking, provided the party to the action other than the one giving the undertaking was deprived of no right by the filing of such undertaking; and if such undertaking is inoperative by reason of its failure to comply in form with the requirements of the statute under which it is given, the waiver of such defect by the party entitled to take advantage of it will not have the effect of binding the surety.—Id.
6. It seems, however, that if the filing of the undertaking in violation of the condition deprived the other party of a right, the surety would be liable.-Id.
7. Where sureties in an undertaking on ap- peal become insolvent and the court orders a new undertaking filed within 20 days, or in default thereof judgment to be enforcea- ble as if no undertaking had been given, and the order is not complied with, the respond- ents by issuing execution release the sureties from liability. Their election to issue and rely upon execution precludes them from pursuing the sureties upon the undertaking. -Collins v. Ball, 352.
8. The extension by the payee of the time of payment of a note, upon an executory usurious agreement with the maker, which the latter did not perform, does not release a surety.-Thayer v. King, 474.
9. To exonerate a surety by the creditor's de- lay to proceed against the principal the surety must show explicit notice or request to the creditor to take such proceedings.- Id.
See INJUNCTION, 6; LEASE, 7; MORTGAGE, 11, 18; SHERIFFs, 4
1. In the settlement of an administrator's ac- count, the Surrogate referred the matter to a referee; the referee made his report, and its confirmation was regularly moved for before the Surrogate, who confirmed it. and no exceptions were taken to the same until some seven weeks afterwards. Held. That the Surrogate had no alternative but to direct an order for confirmation, and an appeal from his decision brings up nothing for review. In re accounting of Leffingwell.
2. A surrogate has not jurisdiction to call an agent or trustee to account.-Woodruff v. Young, 353.
3. The Surrogate has the power, the neces- sary facts being shown, to make the orders authorized by $2717, 2718 and 2719 of the Code of Civil Procedure, decreeing pay- ment of a legacy, or a portion thereof, as well in a case where a petition has been filed for the revocation of the probate of a will and citations have been issued thereon as in a case where the probate is final, and he is not prohibited from so doing in the former case by the provisions of $2650 of the Code of Civil procedure -In re petition of Hoyt et al., 360.
4. The granting of letters of administration to a creditor of an intestate dying within this State, on the application of such cred- itor therefor, is discretionary with the sur- rogate when it is made to appear in opposi- tion that the intestate was not a resident of this State, and that, at the time of the application, there was no personal property belonging to the decedent within the State; for the surrogate is not required to issue letters of administration when they must, for all practical purposes, prove to be en- tirely ineffectual, and, in such a case, it is a proper exercise of the surrogate's discretion to deny the application.-In re application of Schoonmaker, 410.
5. In the absence of the denial required by $2805 of the Code a person interested in a trust fund is entitled to an order for an in- termediate accounting by the trustee, and it is the duty of the surrogate to hear the al- legations and proofs and make such decree as may be right, even though an action to settle conflicting claims on the fund is pending between the trustee and the peti- tioners and others in the Supreme Court. — In re estate of McCarter, 433.
6. It is in the discretion of the court to charge the trustee with the costs of an ap- peal occasioned by his conduct.-Id.
7. A citation was issued returnable in less than six weeks. The order for service pro- vided for service on non-residents either personally without the state or by publica- tion. Held, That a personal service without the state thirty days before the return day was sufficient. In re application for ac- counting of Macaulay, 445.
8. Where assets of one who was domiciled and died in another state are in a county of this state at the time of application for let- ters of administration the Surrogate of such county has jurisdiction to issue letters and to decree distribution on a final accounting, and he is not deprived of such jurisdiction by the fact that the assets were irregularly brought to this state.-In re accounting of Hughes.-453.
9. Whether in such a case the assets shall be remitted to the intestate's domicil for dis- tribution is a question of judicial discretion depending on the circumstances of the par- ticular case.-Id.
10. Under an order referring an administra tor's account to a referee to examine and report it is the duty of the surrogate to consider the exceptions filed to the report and determine the questions presented thereby. In re accounting of Pool, 555.
See EXECUTORS, &c., 12, 13; GUARDIANS, 1; LIMITATION, 5; VERIFICATION; WILLS, 4,
See NEGLIGENCE, 33. SUSPENSION OF RIGHTS.
See APPEAL, 23, 24.
1 Leases given on tax sales in Queens Co. are prima facie evidence that the tax was legal- ly imposed and that the proceedings and sale were regular, and this includes the as- sessment of the land. The party assailing such lease has the burden of proof.—Lott v. Degrai, 235.
2. Where real property, belonging to a be- nevolent corporation, is all lawfully devot- ed to the care, custody, education and maintenance of destitute mothers and chil- dren, it is exempt by law from taxation, and an equitable action will lie to set aside a tax imposed thereon.-The N. Y. Infant Asylum v. The Board of Supervisors of West- chester Co. et al., 274.
3. When the period allowed by law for the assessment of personal property for the purposes of taxation by the Commissioners of Taxes and Assessments of the City of New York expires between the death of a decedent and the issuing of letters testa- mentary to the persons named as executors in his will, such tax may be imposed upon such persons as exccutors, although they have not yet qualified as such and received their letters testamentary, and they are the proper persons to be notified of the imposi- tion of such tax.-The People ex rel. Cou- dert et al. v. Comrs. of Taxes, 368.
4. The Commissioners of Taxes and Assess- ments in the City of New York may tax the executors of a deceased person on the personal property belonging to the estate and assess the value of such personal prop- erty previous to the expiration of the time provided by law for the advertisement for claims against such estate, and, consequent- ly, before the executors can obtain accurate knowledge of the amount of such personal property subject to taxation, and such val- uation will be conclusive in the absence of any evidence furnished to the Commission- ers by the executors showing that it is ex- cessive.-Id.
5. When the owner of real estate situated in the City of New York applies to the Tax
Commissioners of said city for a reduction of the assessed value of such land on the ground that it is excessive for reasons stated. the Commissioners themselves are entitled to obtain further information, and to act, to a certain extent, upon their own observa- tions and judgment, and where they have taken that course, and in good faith have adopted the valuations complained of, as long as no legal principle was violated in doing so the Court will not interfere for the reversal of their proceedings.—The People ex rel. Syms v. Tax Comrs., 456.
6. When no legal error was committed in making the valuations, but they were grad- uated by what was considered by the Com- missioners to be the fair and reasonable ef- fect of all the evidence upon which their action was authorized to be taken, and the only ground of complaint is that the force and weight of the evidence has not been ac- curately measured, an appellate court should be exceedingly reluctant to interfere and to derange and disturb the system adopted and pursued in making the assessments. -Id.
7. A minister who is disqualified for active duty by age and infirmity is nevertheless entitled to his exemption from assessment. -The People ex rel. Mann v. The Assessors of Covert, 458.
8. So long as assessors try diligently to dis- charge their duties they should not be visited with costs for mere error of judg ment.-Id.
9. A telegraph company owning a line partly within and partly beyond the limits of this State, and partly in the City of New York, is subject to taxation in that city on its capital stock to the amount of the actual cost of its works within that city, and for such personal property or real estate as it may own therein; but if its officers fail to furnish to the Tax Commissioners a state- ment of the cost of its works, etc., as re- quired by statute, the Commissioners have the right to assess the property of the com- pany according to the best information they can procure, and if the corporation has failed to apply for the correction of such assessment within the time provided by law for that purpose the Court will not there- after correct such assessment on certiorari. -The People ex rel. The Mutual Union Tel. Co. v. Comrs. of Taxes, 524.
See CORPORATIONS, 9-12; TAXATION, 9.
See CONTRACT, 13: MORTGAGE 13.
See CONSTITUTIONAL LAW, 5.
TENANTS IN COMMON.
See CONVERSION, 1; REDEMPTION, 2.
See ADVERSE POSSESSION; INSURANCE COM- PANIES, 1.
See EVIDENCE, 17; PARTIES, 3.
1. One who takes a town bond issued in aid of a railroad is bound to see to it that it is authorized by the statute under which it purports to have been issued.-Craig v. The Town of Andes, 67.
2. In an action upon a town bond, issued pursuant to Chap. 907, Laws of 1869, the town may raise the question whether the County Judge had jurisdiction of the pro- ceedings notwithstanding the determination of said County Judge pursuant to § 2 of said act. The only effect of that section is to cast upon the town the burden of prov- ing that no jurisdiction, in fact, existed in the County Judge. --Id.
3. Some of the petitioners, without whom the signers would constitute less than the ma- jority of the tax-payers, attached to their signatures a condition that the road should run through a certain town, which would change the route from that desired by the other petitioners. Held. That the desire expressed was not within the purview of the act; that the County Judge acquired no jurisdiction of the proceedings and could not, of his own motion, dispense with the performance of a condition precedent to the exercise of the authority conferred by said act.-ld.
1. After relator recovered a judgment against the town of Kingston the town was di- vided. A mandamus requiring defendant to levy the amount of the judgment on the several towns into which Kingston was divided was reversed by the General Term. Held, No error; that relator has a plain remedy by mandamus to compel a meeting of the officers of the towns and a discharge by them of the duties devolved upon them by the Revised Statutes.-The People ex rel. McKenzie v. The Board of Supervisors of Ulster Co., 220.
2. Chap. 554, Laws of 1880, applies only to the collection of judgments against towns which have not been divided or altered.- Id.
« PreviousContinue » |