Page images
PDF
EPUB

Digest.

fore such judgment. (Chapin agt. Thompson, 80 N. Y., 275.)

10. The provision of said Code (sec. 1005) providing for a motion for a new trial after judgment, has reference to new trial of the action itself, not to a new trial upon the feigned issues which may have been awarded therein. (Id.)

NEW YORK (CITY OF).

1. The return of the respondents, the commissioners of public parks, to the writs of certiorari, shows that they discharged the relators, who were clerks in the department of parks, from the public service, because the appropriation for the maintenance of the park department, for the year in which the relators were severally discharged, had been reduced by the board of apportionment below the appropriation for the previous year, which necessitated the reduction of expenses and the removal:

Held, that the terms of chapter 335, section 28, of the laws of 1873, which prohibits the removal of a clerk until he has been informed of the cause of his proposed removal, and an opportunity has been offered him for making an explanation does not apply. That notice and an opportunity to explain applies to cases where the removal is proposed to be made for cause personal to the party, or when it is sought arbitrarily and without adequate reason, to substitute another person in the place of one proposed to be removed. (The People ex rel. Evans agt. Board of Commissioners of Public Parks, ante, 130.)

2. The College of the City of New York is a distinct corporation having no dependence on the city. (The People ex rel. Burnet agt. Jackson, ante, 330.)

8. The finance department of the

city is merely the custodian of the funds raised by taxation for the college. (Id.)

4. The vouchers of the college trustees are conclusive on the finance department. (Id.)

5. Mandamus will lie against the comptroller to compel the audit of such vouchers. (Id.)

6. The relator, a policeman, having been convicted by the police board upon a charge of receiving sums of money on several occasions from the keepers of a house of prostitution as an inducement for allowing certain privileges, was dismissed from the force:

Held, that under the law of 1873, giving the board power to dismiss any member on his conviction of a legal offense or neglect of duty, or any conduct injurious to the public welfare, or immoral conduct or conduct unbecoming an officer, though the relator could have been convicted and punished for the offense, yet it was not necessary to await a conviction in a court of criminal jurisdiction before instituting the inquiry. (1 he People ex rel. Murphy agt. French et al., ante, 377.)

7. There being evidence to uphold the judgment of the board, and no rule of law having been violated, the judgment should not be disturbed. (Id.)

8. The effect of the act of 1872, vesting in the judges of the supreme court the power to appoint attendants (Laws of 1872, chap. 438) though it took effect immediately, did not so operate as to terminate the existing office, or impair its functions, or remove incumbents; it transferred the power of appointment from one officer to another body of officers; but the omission of the latter to use their authority could not be construed into a removal of the existing offi

Digest.

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.)

NEW YORK STOCK EXCHANGE.

1. A seat in the New York Stock Exchange 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.)

OFFICE AND OFFICER.

1. At a general election held in and for Sullivan county, the relator and the defendant were the two and only two candidates to he voted for in that county for the office of county judge. The whole number of votes cast was 6,179; of which defendant received 3,211 and the relator received 2,947. The certificate of election was given to the defendant by the board of county canvassers, and on January 1, 1879, he took possession of the office, having first taken the oath required by the Constitution and filed the necessary bond. The term of office was six years, and the salary as fixed by law was $2,500 per annum. The defendant after he became a candidate for the office, and during the whole canvass, down to the day of election, published and circulated throughout the county a promise addressed to the electors to this effect: "That if elected to the office of county judge I will pledge myself to take only $1,200 a year for my serv

2.

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.)

The promises and pledges of the defendant were made to the taxpayers 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.)

3. It is not necessary that there should be evidence from any witness who voted at the election for defendant, that he did so in consequence of such pledges and promises. The illegal promises to induce votes having been affirmatively shown to have been made to every elector, more particularly to every taxpaying elector, the onus of showing the numbers of votes that were influenced thereby, should devolve upon the defendant, and it should devolve upon him to show the number of votes uninfluenced by such promises he did actually receive. (Id.)

[blocks in formation]

PARENT AND CHILD.

Digest.

1. A parent is not liable for the trespasses or negligence of an infant child. (Schlossberg agt. Lahr, ante, 450.)

PARTIES.

1. The mortgagor of mortgaged premises, who died seized thereof, left by will a legacy to his daughter Cecelia, not making it a charge upon the real estate. He left sufficient personal property to pay the legacies, and bequeathed the "remainder," including the real estate, to his sons:

Held, that Cecelia has no interest in the mortgaged premises, and was therefore not a necessary party to this action to foreclose the mortgage.

Held, that the fact that the executors have wasted the personal property, and have neglected to pay the legacy, cannot charge the real estate with such payment. (Hebron Society agt. Schoen, ante, 185.)

See EXECUTORS.

Price agt. Brown, ante, 511.

2. Where one railroad company has leased the road of another, such lessee is a necessary party to a proceeding under the general railroad act, by a third company to acquire the right to cross the leased road; it may voluntarily agree with the petitioner in respect to the crossing, and such agreement, while not binding upon the lessor, in respect to its interests as reversioner, binds the interests of the lessee. (In re B. H. T. and W. R. R. Co., 79 N. Y., 69).

3. In such case it is not essential that one proceeding shall embrace all the parties; it will only affect the parties brought in, and where the Îessee is alone made a party, the estate in reversion will not be affected. (Id.)

VOL. LX 77

4. Plaintiff was appointed by said commissioner janitor of the building occupied by the police court of the second district, and by the district or civil court of the third district; the justice of the latter court appointed C. janitor for that court. The board of estimate and apportionment made an appropriation for the salary of one janitor for said building, conditioned, however, substantially, that no portion thereof should be paid by the comptroller to either appointee until the question was judicially determined that he was and that the other was not entitled to be paid:

5.

6.

Held, that the appropriation could only be availed of in an action or submission, to which both claimants were parties, and then only on establishing that the power to appoint janitors was exclusive, either in the court or the commissioner, and that there could be but one janitor; and that, therefore, plaintiff was not entitled to judgment upon a submission of the controversy under the Code of Civil Procedure (sec. 1279), as between him and the city, to which C. was not a party. (Kennedy agt. Mayor, &c., 79 N. Y., 361.)

Where a party was called as a witness by the adverse party and was examined as to a transaction with a deceased party, in reference to which he would have been precluded from testifying in his own behalf under the Code of Procedure (sec. 399):

Held, that the witness was entitled, upon cross-examination, to explain his testimony, and to state the whole transaction. (Merritt agt. Campbell, 79 N.. Y., 625.)

The provision of the Code of Civil Procedure (sec. 829), prohibiting a party from testifying, in certain cases, to a personal transaction with a deceased person, does not extend to the transactions with the agents of such

Digest.

person. (Pratt agt. Elkins, 80 N. Y., 198.)

7. Where two persons, for a consideration sufficient as between themselves, covenant to do some act, which, if done, would incidentally result in the benefit of a mere stranger, he has not a right to enforce the covenant, although one of the contracting parties might enforce it as against the other. (L. O. S. R. R. Co. agt. Curtiss, 80 N. Y., 219.)

8. Defendant and others signed the following instrument: We, the undersigned, citizens of Unionville and vicinity, pledge ourselves to subscribe for and take stock in and for the construction of the Lake Ontario Shore Railroad to the amount set opposite our name respectively, on condition said road be located and built through or north of the village of Unionville, in Parma." In an action thereon, 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 maintain an action thereon. (Id.)

9. It seems, that an action by a party to the instrument could not be maintained in the absence of evidence that the contract was entered into for his benefit, and not until after the condition stated therein had been performed; also, that any recovery would be, not for the amount of the promised subscrip tion, but only for the damages which such party had sustained. (Id.)

10. The lessee of one of the defendant's piers, on the Hudson river, drove spiles in front of it, which were fastened to the pier by bolts and chains; two of them became loose, and fell away from the pier, their upper ends projecting into the river; they were wholly submerged, except at low tide. Plaintiff's steam tug, in passing the pier, struck the spiles and was

injured. It did not appear that the city officials had any notice that the spiles had fallen away, or that they in any way obstructed the navigation of the river:

Held, that an action to recover the damages was not maintainable against defendant; that as the city had nothing to do with placing the spiles, or in causing them to fall in the river, it owed no duty in regard to them; also, that even if it did owe any such duty, that duty could not arise until it had some notice. (Seaman agt. Mayor, 80 N. Y., 239.)

11. Where two or more persons or corporations are operating a railroad, their liability to an employee for an injury resulting from defective machinery furnished by them for use in the course of his employment, is several as well as joint, and an action is maintainable against one of them. (Kain agt. Smith, 80 N. Y., 458.)

PARTNERSHIPS.

1. The statute (Laws of 1833, chap. 281) which provides that "no person shall transact business in the name of a partner not interested in his firm, and when the designation

& Co.' is used, it shall represent an actual partner or part ners," is highly penal, and the use of the words" & Co.," when representing the wife of such person, is not a violation of the statute. The name of the wife when so used is a real one and the words "& Co.," when so employed, are in no sense fictitious. (Zimmerman et al. agt. Erhard et al., ante, 163.)

2. Where goods are sold on different days, each sale constitutes a separate and distinct cause of action, and the plaintiff may, at his election, bring separate actions for each, or for all of them together. (Id.)

Digest.

PARTY WALL.

1. Where S., who owned five adjoin

PENDENCY OF ANOTHER ACTION.

ing new dwelling-houses, repre- 1. The defense of the pendency of

sented to M., during negotiations with him for the sale of one of them, that he was restricted from erecting other than first-class private residences on the property, and that they would be, first and last, private residences; and M., relying on these statements, purchased one of the houses as a private residence and permanent home, and then S. enlarged the other houses, not as private residences, but for business purposes, namely, as part of a family hotel:

Ileld, that though these representations were not incorporated in the deed or in the contract of sale, and were not repeated or alluded to at the time the contract of sale and purchase was made, S should, in equity, upon M.'s application, be restricted from altering the character of the houses, unless M.'s rights in this respect have been waived. (Musgrave agt. Sherwood, ante, 339.)

2. The use by S. of the existing easement, a party-wall between the house purchased by M. and S.'s house adjoining, for a purpose antagonistical to the expressed design of S. in building the houses, by which the adjoining house was enlarged, not as a private residence, but for business purposes, may be restrained, though S. would have the right to build upon the party-wall if the object were to enlarge his house as a private residence (Reversing S. C., 54 How., 338; see S. C., 53 How., 311). (Id.)

3. S. is under no obligation to reform the character of the houses other than the one adjoining M.'s, because the changes made prior to the commencement of the action must be regarded as having been assented to by M., because they were allowed to be thus changed without objection. (Id.)

1.

another action must be taken by answer or demurrer; if not so taken it will be deemed to have been waived.

Where the answer sets up as a defense a final settlement and adjustment of the plaintiff's claims in a proceeding had in another court, proof of a proceeding then pending in that court is inadmissible. (Remington agt. Walker, 21 Hun, 322.)

PLACE OF TRIAL.

This action was brought in the county of New York, to restrain the defendant Johnson, who had in his possession a satisfactionpiece of a judgment recovered by the plaintiff against the defendant Nelson, from delivering the same to Nelson. The complaint showed that Nelson owned real property in Ulster, but none in Kings county. The defendant, upon an affidavit stating that Nelson had sold the land fh Ulster county, and then owned no real estate except in Kings county, moved for an order changing the place of trial to Kings county, on the ground that the action was brought "to recover or to procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property, or a chattel real;" within the meaning of section 982 of the Code of Civil Procedure:

Held, that whether or not the action was within that section must be determined by the complaint, and that the decision of that question could not be affected by affidavits. That the action did not have for its object the recovery of a judgment establishing or otherwise affecting a right, lien or other interest in real property, and the motion was therefore properly denied. (Knickerbocker

« PreviousContinue »