Imágenes de páginas
PDF
EPUB

The Court

against defendants for thirty penal-
ties of $50 each.

II. B. Cushney for applts.
H. E. Smith, for respt.

rendered judgment ed to change the special provision as to plaintiff, which had never been under the operation of the general law in that respect, 5 IIun, 310; that the intent not to interfere with existing special provisions is manifest from the words "except as otherwise provided by law," at the end of the amendment.

Held, That the provisions of plaintiff's charter in relation to granting licenses and suing for penalties relate to the subject of police regulations, which are embraced in the organization or reorganization of the village, and that the title was sufficient. 50 N. Y., 504; 59 Id., 599.

Also held, That the provision for submitting the question of license or no license to a vote of the electors, was one relating to a local regulation which it was competent for the Legislature to commit to the people of that district. 28 N. Y., 605.

Defendants claimed that the power to sue for these penalties in the name of the village was abrogated by Chapter 820, Laws of 1873, and the power to sue vested in the overseers of the poor of the county.

The Act of 1873, Chap. 820, was an amendment of § 22 of the General Excise Law of 1857 (Chap. 628), which provides that such penalties shall be sued for and recovered by the coinmissioners of excise and paid over to the county treasurer for the support of the county poor. This provision was in force at the time of the passage · of plaintiff's charter (Chap. 505, Laws of 1873), which provides that the penalties shall be sued for in the name of the village and for its benefit, and paid to its treasurer.

Held, That plaintiff was clearly taken out of the operation of the general law; that it could not be inferred from the amendment of the general law that the legislature intend

The general law of 1867 provided for the appointment of three freeholders in each county, who constituted the Board of Commissioners of Excise of the county. The power to grant licenses and sue for penalties was vested in them exclusively. Chapter 175, Laws of 1870, provided for a board in each of the cities, incorporated villages, and towns. In villages to consist of three members of the Board of Trustees, one of whom should be president; and in towns, of the supervisors and justices of the peace for the time being. By §4 these boards were empowered to grant licenses in their respective cities, towns, and villages, and it was considered under this act that licenses could be granted in villages either by the town, or village board. Chapter 249, Laws of 1873, amended the act of 1870 by prohibiting the town board from granting licenses within any incorporated village, but that in villages they should be granted by the village board.

Held, That the Board of Trustees of the village takes the place in Gloversville of the Board of Commissioners of Excise in other villages under the general law, and is subject to the excise laws, except as modified by the charter.

Chapter 444, Laws of 1874, provides for the election, in each town, of three

excise commissioners, who, while acting as such, are prohibited from holding either of the offices of justice of the peace, town clerk or president or trustee of any incorporated village; and who shall compose the Board of Excise and perform the duties imposed upon the supervisors and justices of the peace of towns and the president and trustees of incorporated villages by Chap. 175, Laws of 1870, and acts amendatory thereof. It also provides (§ 3) that nothing in it shall affect the provisions of any special act in so far as the same provides for any special disposition of excise moneys or fines.

from increasing the salaries of those then in office or their successors.

Where upon the trial no proof is given in support of an allegation in the complaint that plaintiff was appointed under that act and that his appointment was authorized by the Supervisors, and no attention was called to such omission, the defect may be remedied by proof on the argument in the appellate court, for the purpose of upholding the judgment.

Plaintiff was appointed an attendant of the Marine Court in 1862, and served until May, 1873. His salary was fixed by the Board of Supervisors at $1,200 per annum. By section 3 of chapter 382, Laws of 1870, it was provided that "the Board of Supervisors of the county of New York are hereby prohibited from creating any new office or department, or increasing the salaries of those now in office. or their successors." By chapter 582, Laws of 1870, it was provided that the Marine Court should have power to appoint "such other assistants, stenographers, interpreters and attendants as the Board of Supervisors may from time to time by resolution au

Held, That there was nothing in the act of 1874 which transferred the powers of the village board to the town board, or that affected the provision of plaintiff's charter as to the granting or refusing of licenses, and that the license granted by the town board was no protection to defendants. Judgment of General Term, affirining judgment for plaintiff, affirmed. Opinion by Rapallo, J. All con-thorize to be so appointed, who shall cur. Church, Ch. J., dissenting as be respectively paid at such rates as to licenses granted by the town board, may be fixed by said Board of Superwhich he thinks were valid, and con- visors." The salaries of the attendcurs as to the rest. ants of said court was thereafter fixed at $1,500. Plaintiff was paid at the rate of $1,200 and this action is brought to recover the claimed to be due.

MARINE COURT OFFICERS.
PRACTICE.

N. Y. COURT OF APPEALS. Wines, respt., v. The Mayor, &c., of New York, applt.

D. J. Dean, for applt.
Elliot Sandford, for respt.

balance

Held, That under chapter 582, Laws of 1870, plaintiff's appointment and the raising of his salary were authorized.

Decided September 25, 1877. Under chapter 582, Laws of 1870, the reappointment of a former attendant of the Marine Court and the raising of his salary were authorized, although ch. 382, Laws of 1870, prohibited the Board of Supervisors | (chap. 582), and that his appointment

The complaint alleged plaintiff's appointment under the Act of 1870

[ocr errors]
[ocr errors]

was authorized by the supervisors. the other called the Dennis Place. No formal proof of such appointment She devised the former to her two was given at the trial and no attention was called to the defect. Upon the argument in this court formal record proof was made of the appointment as required by said act.

[blocks in formation]

N. Y. COURT OF APPEALS.

Hetzell, respt., v. Barber, applt. Decided March 20, 1877. Where a married woman, by will, devises real estate in equal parts to her husband and two daughters, divided, and authorizes her husband to sell the same, and invest the shares of the daughters until they shall attain the age of twenty-five years, the husband takes an absolute fee in one-third of the land; as to the other two-thirds there is a general power in trust, but the daughters take an absolute fee, subject to the execution of the power.

A Sheriff's deed of lands sold on execution, recorded before a prior deed executed by the judgment debtor, passes the title as against

the grantee under such prior deed.

Where the daughters after coming of age, but before reaching the age of twenty-five years, convey their interest in the property, a deed by the busband purporting to be in execu

tion of the power contained in the will has no validity, as he has no title to convey. It does not matter if the sale by the daughters defeats the intention of the testatrix, so long as it is legally defeated.

This was action of ejectment. It appeared that E. died seised of two parcels of land in the city of Auburn, one called the Homestead and

daughters, subject to a life estate therein, which she gave to her husband, and she provided that during his life it should be a home for him and her daughters, and alienable by them only after the daughters became of age. The Dennis Place, the premises in suit, she devised in equal parts to her husband and two daughters, and authorized and empowered him to sell and convey it, and ordered and directed him in case of such sale to invest the portions going to the daughters, and to keep them invested until after they severally reached the age of twenty-five years, when he was to pay the same to them with accumulations of interest. The husband was made executor. February 20,

1869, he conveyed, as executor, his third in the Dennis Place to plaintiff by a deed which was not recorded until Dec. 27, 1871. A judgment was recovered and docketed against him May 11, 1869. Execution was issued, and the Sheriff sold the land January 14, 1870, and in pursuance of such sale executed a deed thereof to defendant April 17, 1871, which was recorded on that day. On April 27, 1870, the husband, by a deed purporting to be in execution of the power contained in the will, conveyed the whole of the Dennis Place to plaintiff, and that deed was recorded June 4, 1870. After the daughters came of age, but before either of them reached the age of twenty-five years, for an adequate consideration, they conveyed their two-thirds of the Dennis Place to defendant by warranty deed dated February 8, 1870, and recorded March 9, 1870.

Geo. F. Comstock, for applt. J. J. Lamoree, for respt. Held, That under the will the husband took an absolute fee in one undivided third of the Dennis Place, which he could dispose of at will. 4 Kent's Com., 348; 1 R. S., 733, $ 83, 85. As to the other two-thirds there was a general power in trust (R. S., Part 2, Chap. 1, Title 2, Art. 3, §§ 77, 94), the donce of which took no estate in the land, but the daughters took an absolute fee, subject to the execution of the power. 12 Barb., 113; 41 N. Y., 289.

That as to the deed from the husband, of his third to plaintiff, it gave him a good and complete title against every one but a subsequent purchaser in good faith and for a valuable consideration, whose deed was first recorded. 1 R. S., 739, § 144; Id., 756, § 1. As to such purchaser his deed was void, and the title is in law treated as remaining in the grantee until after the second deed was given.

A sheriff's deed, given pursuant to a judgment, and a sale upon execution, is treated as if given by the judgment debtor himself, and conveys precisely what he could have conveyed when the judgment was docketed. The grantee in such case holds under the debtor, and the deed, when recorded, is protected by, and has the benefit of the recording act. 8 Wend., 620; 15 Id., 558; 2 Hill, 650; 3 Wash., 550; 13 Rich. Eq., 222.

That the deed to plaintiff which purported to be in execution of the power contained in the will had no validity, as E., when he executed it, had no title to convey. Washb. on R. P. (3d ed.), 593; 4 Kent's Com., 347.

That after the conveyance by the daughters to defendant, they ceased to have any interest in the execution of the power under the will; that they could no longer compel its execution, or claim the proceeds of a sale of the land. 6 J. R., 73; 3 Cow., 651.

Also held, That it does not matter if the sale by the daughters defeated the intention of the testatrix, so long as it was legally defeated.

Judgment of General Term, affirming judgment on verdict that defendant was entitled to one third of the premises, affirmed, and that' portion thereof adjudging plaintiff to be entitled to two thirds, reversed, and judgment ordered for defendant, dismissing complaint.

Opinion by Earl, J. All concur.

APPEAL.

N. Y. COURT OF APPEALS. Alling et al., applts., v. Fahy et al., respts.

Decided September 25, 1877.

An appeal will not lie from an order of General Term, affirming an order of Special Tera, setting aside a judgment of foreclosure by default and sale thereunder and allowing defendants to interpose defence of usury.

This was an appeal from an order of General Term, affirming an order of Special Term setting aside a judgment of foreclosure by default and a sale thereunder, and permitting defendants to interpose the defense of usury.

John Van Voorhis, for applt.
Edward Harris, for respt.

Held, Not appealable, as the order rested entirely in the discretion of the Court.

Appeal dismissed.

Per curiam opinion. All concur.

MUNICIPAL CORPORATIONS. abreast. The seat was about a foot LIABILITY OF. EVIDENCE.

N. Y. SUPREME COURT. GENERAL
TERM. THIRD DEPT.

Leland Sewell, respt., v. The City of Cohoes, applt.

Decided September 20, 1877.

Where a city takes possession of land which it does not own, and grades and paves it for a street, and invites travel thereon, it becomes bound to exercise the same degree of care over it as if it owned the right of way for

lower than the top of the wagon. There was a turn in the street near the bridge, with a house a story and a half high standing in the corner of the turn and but thirty or forty feet from the bridge-also a high wall extending towards the bridge. Plaintiff claims that these obstructed his vision, also that after his second team had passed he looked back to see if the hind part of his wagon would clear the coping of the wall and immediately afterwards was caught under the bridge, which was the first he knew of its being there, he being a stranger in the city. The bridge was removed after the accident in accordEvidence of a resolution passed by the Com-ance with a resolution passed by the mon Council after the accident, ordering the Common Council. removal of the bridge, and of its removal in accordance therewith, is admissible as tending to show authority to remove the bridge before the accident, and responsibility for neglecting to do so.

the purpose of a street. Accordingly, when the city neglects to remove

a bridge or tramway over such a street, and by reason of its negligence a person is injured, the city is responsible for damages.

The questions of negligence and contributory

negligence left, under the circumstances, to the jury.

Appeal from a judgment upon a verdict for plaintiff and from an order denying new trial upon the min

utes.

Samuel Hand, for applt.
J. H. Clute, for respt.

Held, That the evidence establishes a presumption that the land belonged to the State. But however that may be, the defendant had, prior to the accident, taken possession of it and graded it for a street and in effect invited its use for such purposes. In such a case defendant was bound to exercise the same degree of care as if it owned the right of way for the purpose of a street.

Action for personal injuries suffered by plaintiff while driving over a strip of road which had been taken, graded, and paved by defendant and used by the public as a street, but which defendant claims was owned by Held also, That the nature of the the State and not by the city. Before obstruction and the character of the the city assumed control, a bridge or team and vehicle under plaintiff's tramway had been built by private charge were proper subjects for conparties over the street and about ten sideration by the Court and jury. The feet in height above it. It was under judge submitted such matters fairly this bridge that plaintiff was injured, to the jury, and properly left it for by being crushed between it and the them to say whether a cause of action vehicle he was driving. This vehicle was established by the negligence of was a large lion's den or cage about the defendant and the absence of ten feet high and twenty-one feet negligence of the plaintiff. He was long, and drawn by six horses two not called on to decide and charge as

« AnteriorContinuar »