Howard's Practice Reports in the Supreme Court and Court of Appeals of the State of New York

Digest.

fore such judgment. (Chapin agt. city is merely the custodian of the Thompson, 80 N. Y., 275.)

funds raised by taxation for the

college. (Id.) 10. The provision of said Code (sec.

1005) providing for a motion for a | 4. The vouchers of the college trusnew trial after judgment, has tees are conclusive on the finance reference to new trial of the action department. (Id.) itself, not to a new trial upon the feigned issues which may have 5. Mandamus will lie against the been awarded therein. (Id.)

comptroller to compel the audit of such vouchers. (Id.)

NEW YORK (CITY OF). 6. The relator, a policeman, having Digest.

been convicted by the police board 1. The return of the respondents, upon a charge of receiving sums the commissioners of public parks,

of money on several occasions to the writs of certiorari, shows

from the keepers of a house of that they discharged the relators,

prostitution as an inducement for who were clerks in the depart

allowing certain privileges, was ment of parks, from the public

dismissed from the force: service, because the appropriation

Held, that under the law of 1873, for the maintenance of the park

giving the board power to dismiss department, for the year in which

any member on his conviction of the relators were severally dis

a legal offense or neglect of duty, charged, had been reduced by the or any conduct injurious to the board of apportionment below

public welfare, or immoral conthe appropriation for the previous

duct or conduct unbecoming an year, which necessitated the reduc- officer, though the relator could tion of expenses and the removal: have been convicted and punished Held, that the terms of chapter

for the offense, yet it was not 335, section 28, of the laws of 1873,

necessary to await a conviction in which prohibits the removal of a

a court of criminal jurisdiction clerk until he has been informed of before instituting, the inquiry. the cause of his proposed removal,

(1 he People ex rel. Murphy agt. and an opportunity has been of

French et al., ante, 377.) fered him for making an explanation does not apply. That notice 7. There being evidence to uphold and an opportunity to explain ap- the judgment of the board, and no plies to cases where the removal is rule of law having been violated, proposed to be made for cause per- the judgment should not be dissonal to the party, or when it is turbed. (Id.) sought arbitrarily and without adequate reason, to substitute another 8. The effect of the act of 1872, vestperson in the place of one pro- ing in the judges of the supreme posed to be removed. (The Peo

court the power to appoint attendple ex rel. Evans agt. Board of Com

ants (Laws of 1872, chap. 438) missioners of Public Parks, ante,

though it took effect immediately, 130.)

did not so operate as to terminate

the existing office, or impair its 2. The College of the City of New functions, or remove incumbents; York is a distinct corporation hav

it transferred the power of aping no dependence on the city. pointment from one officer to (The People ex rel. Burnet agt. another body of officers; but the Jackson, ante, 330.)

omission of the latter to use their

authority could not be construed 8. The finance department of the into a removal of the existing offi NEW YORK STOCK EX

cers, although a new appointment by the judges of another person to the same office would necessarily have that effect. (Blunt agt. The Mayor, ante, 482.)

9. The officer ad interim would be

entitled to compensation if he had rendered the services (The case of Genet agt. The Mayor, 76 N. Y., 625, not in conflict). (Id.)

ices; that I will pay out of my own pocket the coal necessary to heat my law office; that I will pay for all stationery and letter heads, and will see that persons needing blanks pay for them themselves, and if a member of assembly can be elected who will have the law amended reducing the salary to $1,200, I will guarantee to waive all constitutional objections and never question its validity:"

Held, that this was sufficient to invalidate the defendant's right to the office he now holds. (People ex. rel. Bush agt. Thornton, ante, 457.)

CHANGE.

1. A seat in the New York Stock Ex

change is property that may be applied toward satisfaction of a judgment against its owner. Per BEACH, J. (VAN BRUNT, J., dissenting). (Grocers' Bank agt. Murphy, ante, 426.)

2. The promises and pledges of tho

defendant were made to the tax. payers and electors generally, and were of a character, within the fair spirit and meaning of the acts, impliedly prohibited by article 12, Constitution of this state. (Id.)

OFFICE AND OFFICER.

3. It is not necessary that there

should be evidence from any wit1. At a general election held in and

ness who voted at the election for for Sullivan county, the relator and the defendant were the two

defendant, that he did so in conand only two candidates to be

sequence of such pledges and voted for in that county for the

promises. The illegal promises to

induce votes having been affirmaoffice of county judge. The whole number of votes cast was 6,179; of

tively shown to have been made which defendant received 3,211

to every elector, more particularly and the relator received 2,947.

to every taxpaying elector, the The certificate of election was

onus of showing the numbers of

votes that were influenced thereby, given to the defendant by the board of county canvassers, and

should devolve upon the defend.

ant, and it should devolve upon on January 1, 1879, he took pos

him to show the number of votes session of the office, having first

uninfluenced by such promises he taken the oath required by the

did actually receive. (Id.) Constitution and filed the necessary bond. The term of office was six years, and the salary as 4. An offer of a bribe is criminal, fixed by law was $2,500 per an- and this is so whether the offer is num. The defendant after he

accepted or not. It disfranchises became a candidate for the office, the party making the offer as well and during the whole canvass, as the party influenced thereby: down to the day of election, pub- Held, also, that the relator is not lished and circulated throughout entitled to the office. He did not the county a promise addressed to receive a majority of the votes of the electors to this effect: “ That the legal electors who at that elecif elected to the office of county tion cast hallots for the office of judge I will pledge myself to take county judge, and consequently only $1,200 a year for my sery- was not elected. (Id.)

Digest.

PARENT AND CHILD. 4. Plaintiff was appointed by said

commissioner janitor of the build1. A parent is not liable for the tres- ing occupied by the police court

passes or negligence of an infant of the second district, and by the child. (Schlossberg agt. Lahr, ante, district or civil court of the third 450.)

district; the justice of the latter

court appointed C. janitor for that PARTIES.

court. The board of estimate and

apportionment made an appropri1. The mortgagor of mortgaged

ation for the salary of one janitor premises, who died seized thereof, for said building, conditioned, left by will a legacy to his daugh- however, substantially, that no ter Cecelia, not making it a charge

portion thereof should paid by upon the real estate. He left the comptroller to either appointee sufficient personal property to pay

until the question was judicially the legacies, and bequeathed the

determined that he was and that “remainder,” including the real

the other was not entitled to be estate, to his sons:

paid: Held, that Cecelia has no inter

Held, that the appropriation est in the mortgaged premises,

could only be availed of in an and was therefore not a necessary

action or submission, to which party to this action to foreclose

both claimants were parties, and the mortgage.

then only on establishing that the Held, that the fact that the ex

power to appoint janitors was executors have wasted the personal

clusive, either in the court or property, and have neglected to

the commissioner, and that there pay the legacy, cannot charge the

could be but one janitor; and real estate with such payment.

that, therefore, plaintiff was not (Hebron Society agt. Schoen, ante,

entitled to judgment upon a sub185.)

mission of the controversy under

the Code of Civil Procedure (sec. See EXECUTORS.

1279), as between him and the city, Price agt. Brown, ante, 511.

to which C. was not a party. (Ken

nedy agt. Mayor, &c., 79 N. Y., 2. Where one railroad company has

361.) leased the road of another, such lessee is a necessary party to a 5. Where a party was called as a proceeding under the general rail

witness by the adverse party and road act, by a third company to

was examined as to a transaction acquire the right to cross the

with a deceased party, in referleased road; it may, voluntarily

ence to which he would have been agree with the petitioner in re

precluded from testifying in his spect to the crossing, and such

own behalf under the Code of agreement, while not binding upon

Procedure (rec. 399): the lessor, in respect to its inter

Held, that the witness was entiests as reversioner, binds the tled, upon cross-examination, to interests of the lessee. (In re B. explain his testimony, and to state H. T. and W. R. R. Co., 79 N. Y.,

the whole transaction. (Merritt 69).

agt. Campbell, 79 N. Y., 625.)

3. In such case it is not essential that 6. The provision of the Code of

one procecding shall embrace all Civil Procedure (sec. 829), prohibthe parties; it will only affect the iting a party from testifying, in parties brought in, and where the certain cases, to a personal trans. lessee is alone made a party, the action with a deceased person, estate in reversion will not be af. does not extend to the transacfected. (Id.)

tions with the agents of such VOL. LX 77

Digest.

person. (Pratt agt. Elkins, 80 N, injured. It did not appear that Y., 198.)

the city officials had any notice

that the spiles had fallen away, or 7. Where two persons, for a con- that they in any way obstructed

sideration sufficient as between the navigation of the river: themselves, covenant to do some Held, that an action to recover act, which, if done, would inci- the damages was not maintainable dentally result in the benefit of a against defendant; that as the city mere stranger, he has not a right had nothing to do with placing to enforce the covenant, although the spiles, or in causing them to one of the contracting parties fall in the river, it owed no duty might enforce it as against the in regard to them; also, that even other. (L. 0. S. R. R. Co. agt. if it did owe any such duty, that Curtiss, 80 N. Y., 219.)

duty could not arise until it had

some notice. (Seaman agt. Mayor, 8. Defendant and others signed the 80 N. Y., 239.)

following instrument: We, the undersigned, citizens of Unionville 11. Where two or more persons or and vicinity, pledge ourselves to

corporations are operating a railsubscribe for and take stock in

road, their liability to an employee and for the construction of the

for an injury resulting from defectLake Ontario Shore Railroad to

ive machinery furnished by them the amount set opposite our name for use in the course of his emrespectively, on condition said road

ployment, is several as well as be located and built through or

joint, and an action is maintain. north of the village of Unionville,

able against one of them. (Kain in Parma." In an action thereon,

agt. Smith, 80 N. Y., 458.) held, that it was not a subscription to plaintiff's capital stock; that it was in no sense a party to the agreement, and could not main

PARTNERSHIPS. tain an action thereon. (Id.)

1. The statute (Laws of 1833, chap. 9. It seems, tbat an action by a party 281) which provides that “no per

to the instrument could not be son shall transact business in the maintained in the absence of evi. name of a partner not interested in dence that the contract was entered his firm, and when the designation into for his benefit, and not until & Co.' is used, it shall repreafter the condition stated therein sent an actual partner or part had been performed; also, that ners," is highly penal, and the use any recovery would be, not for the of the words & Co.,” when repamount of the promised subscrip- resenting the wife of such person, tion, but only for the damages is not a violation of the statute. which such party had sustained. The name of the wife when so (Id.)

used is a real one and the words

"& Co.,” when so employed, are 10. The lessee of one of the defend.

in no sense fictitious. (Zimmerant's piers, on the Hudson river, man et al. agt. Erhard et al., ante, drove spiles in front of it, which

163.) were fastened to the pier by bolts and chains; two of them became 2. Where goods are sold on difloose, and fell away from the pier, ferent days, each sale constitutes their upper ends projecting into a separate and distinct cause of the river; they were wholly sub- action, and the plaintiff may, at merged, except at low tide. his election, bring separate actions Plaintiff's steam tug, in passing for each, or for all of them together. the pier, struck the spiles and was (Id.)

Digest.

PARTY WALL.

PENDENCY OF ANOTHER

ACTION. 1. Where S., who owned five adjoin

ing new dwelling-houses, repre-1. The defense of the pendency of sented to M., during negotiations another action must be taken by with him for the sale of one of answer or demurrer; if not so them, that he was restricted from taken it will be deemed to have erecting other than first-class pri- been waived. vate residences on the property,

Where the answer sets up as a and that they would be, first and defense a final settlement and last, private residences; and M., adjustment of the plaintiff's relying on these statements, pur- claims in a proceeding had in chased one of the houses as a another court, proof of a proprivate residence and permanent ceeding then pending in that court home, and then S. enlarged the is inadmissible. (Remington agt. other houses, not as private resi- Walker, 21 Hun, 322.) dences, but for business purposes, namely, as part of a family hotel:

PLACE OF TRIAL. lleld, that though these representations were not incorporated 1. This action was brought in the in the deed or in the contract of

county of New York, to restrain sale, and were not repeated or al

the defendant Jobnson, who had luded to at the time the contract

in his possession a satisfactionof sale and purchase was made,

piece of a judgment recovered by S should, in equity, upon M.'s

the plaintiff against the defendant application, be restricted from

Nelson, from delivering the same altering the character of the

to Nelson. The complaint showhouses, unless M.'s rights in this ed that Nelson owned real proprespect have been waived. (Mus

erty in Ulster, but none in Kings grave agt. Sherwood, ante, 339.)

county. The defendant, upon an

affidavit stating that Nelson had 2. The use by S. of the existing sold the land í Ulster county, and

easement, à party-wall between then owned no real estate except the house purchased by M. and in Kings county, moved for an S.'s house adjoining, for a purpose order changing the place of trial antagonistical to the expressed de- to Kings county, on the ground sign of S. in building the houses, that the action was brought “ to by which the adjoining house recover or to procure a judgment was enlarged, not as a private res- establishing, determining, definidence, but for business purposes, ing, forfeiting, annulling or othermay be restrained, though S. wise affecting an estate, right, would have the right to build title, lien or other interest in real upon the party-wall if the object property, or a chattel real;” withwere to enlarge his house as a pri- in the meaning of section 982 of vate residence (Reversing S. C., 54 the Code of Civil Procedure: How., 338; see S. C., 53 Hor., 311). Held, that whether or not the (Id.)

action was within that section

must be determined by the com3. 8. is under no obligation to reform plaint, and that the decision of

the character of the houses other that question could not be affected than the one adjoining M.'s, be- by affidavits. That the action did cause the changes made prior to not have for its object the recovthe commencement of the action ery of a judgment establishing or must be regarded as having been otherwise affecting a right, lien assented to by M., because they or other interest in real property, were allowed to be thus changed and the motion was therefore without objection. (Id.)

properly denied. (Knickerbocker

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