graphed defendant that he had drawn cognizance. Plaintiff testified that after a check for $4,000 "my account." De- he had taken the papers, he said to defendant then owed him $3,000 for bor- fendant "I shall go to Buffalo to settle my matters." It appeared that the plaintiff knew that defendant was a man of wealth, and that debts against him were collectible. The judge having including the whole month of Septem- to give vindictive damages, was requestcharged that the jury were at liberty rowed money, and $800 for balance of salary. Plaintiff alleged that he drew the check to pay for the borrowed money and arrears of salary due him, ber. At the time plaintiff held defendants note for $3,000 for the borrowed ed by defendant's counsel to charge in the case for the plaintiff's possession that. "There is no justification offered of the malt-house receipts." The court in reference said, "I say the private rights of these parties are not before the jury," and defendant's counsel excepted. Asher P. Nichols for applt. John T. Hoffman, & William. H. Held, That the facts in respect to the bearing upon the defendant's motive, and as the charge withdrew material facts tending to mitigate the damages from the consideration of the jury, it was erroneous. money. Defendant came to New York immediately, reaching there on the 6th, and found plaintiff at the office, and demanded that he should return the money, which he refused to do, and he therefore discharged plaintiff. The latter went to the safe in the office and took from it an envelop containing the certificate of deposit for $4,000, some private papers of his own and bank vouchers, and three negotiable warehouse receipts for about 5,000 bushels taking of the warehouse receipts were of malt worth $50,000 representing proper to be considered by the jury as malt, which belonged to defendant, held in store for him in New York, and deliverable on production of the re ceipts indorsed by him. Plaintiff put these papers in his pocket and left the office. Defendant testified that after plaintiff had gone, another clerk informed him that plaintiff had taken the receipts and papers, and this was the first knowledge he had of the fact. Police officers were sent for and plaintiff having returned, defendant demanded the papers of him, and he refused to surrender them. Plaintiff testified that he offered to return them if defendant would receipt them to him. This was denied by defendant, Plaintiff was arrested and placed in a cell at the station house where he remained until the next morning, when he was discharged on the ground that the matter was of civil and not of criminal Where exemplary or punitive damages are claimed, all the circumstances immediately connected with the transaction tending to explain the motive of defendant are admissible in evidence. Judgment of General Term, affirming order, denying a new trial, and affirming judgment on verdict reversed and new trial ordered. Opinion by Andrews, J. TRUSTEE. ACCOUNTING. AS. TION. N. Y. COURT OF APPEALS. Helms, applt., v. Goodwill, respt. The period of the performance of his In serh case an action for an account ing will lie, although no damages ort raud is proven. action.. The contract was signed in accordance with the agreement, and the premises deeded to defendant, who entered into possession of one and onehalf acres thereof and built a house thereon and occupied the same; the remainder he mortgaged for $2,500, out of which sum he paid the executors and other debts of H., amounting in all to Defendant did not lay out $2,300. the land in lots or sell any lots, and the An assignment of all claims, demands mortgage remaining unpaid was foreand causes of action legal or equit closed, and the land except the one and able, passes to the assignee a right one-half acres sold thereunder. of action for an acccounting against court upon the trial found the facts a trustee. The stated above. It also appeared that the W. II. Henderson, for applt. In 1868, H., plaintiff's assignor, was the equitable owner of thirty acres of land. The legal title was held by the executors of C., and they brought an action to foreclose the contract of purchase under which H. held the land, and also an action to recover the value of certain personal property. H. employed defendant and his partner J. as his attorneys to defend said action, and they appeared and conducted the defense of the same. While these actions were pending H. and said executors had an accounting, and the latter agreed Heid, No error; that as it was not that if H. would pay them a certain foun,dand did not appear, that H. knew sum they would convey the land to him. that the deed was made absolutely to H. agreed to sign the contract of pur- the defendant with no declaration of chase to defendant, the latter agreeing the trust therein, that by that transacto take a deed of the premises and to tion a resulting trust was created in hold them in trust for H. and give a favor of plaintiff, 18 N. Y., 515-to mortgage to pay the executors, and lay wit: to raise money by the mortgage, out the land into village lots, and sell with the money to pay creditors, to pay enough lots to pay the mortgage, and the mortgage by a sale of the lands, convey the remainder to H.; and in con- and to pay to H. for the su. plus or resideration thereof defendant was to re-sidue, and thus the latter attained an inceive for his services, if he would build terest in the subject assigned, and dea house thercon, one and one-half acres fendant had an active duty to perform of the land, he paying $100 thereon by as to that interest, and the period for applying the same on a note given de- the performance of the duty having tendant's firm for their services in said passed, and the possibility of fur ther performance gone by, defend- by plaintiff resulting from an accident ant was bound to account for the caused by a misplaced switch. It had been once tried, and been to the Court of Appeals. The Court of Appeals held that estate and liable for any loss to it by his misfeasance, or neglectful non-performance. Quinn v. Van Pelt, 56 N. Y., 417 distinguished. That de- evidence offered by plaintiff as to the fendant was liable to the amount found, the $200 being moneys belonging to plaintiff, and the evidence warranted a finding that defendant by reasonable exertion could have sold the land so as save the $600. previous intemperance of the switchman, and that this previous intemperance was known to defendant's agents, was competent. On the present trial the same evidence was offered and received, and tended to show that the conduct defendant's agent entrusted with the power of employing and discharging This action could be maintained although no damages were proven, and although the management of the estate had been correct, as a demand for an subordinate employees for defendant account of equity. It was not necessary to establish fraud. Also held, That an assignment by H. to plaintiff of all claims, demands and causes of actions, legal or equitable against defendant, passed to plaintiff a right of action for an accounting in regard to the trust estate. Order of General Term, reversing judgment in favor of plaintiff reversed, and judgment affirmed. Opinion by Folger, J. EVIDENCE. EXCESSIVE DAM AGES. was in this instance grossly negligent. The jury were instructed that they might give puniitive damages. Defendant's counsel insisted that the question of negligence was determined, and proved, if at all, without this evidence, and the only object and tendency of the evidence as to previous habits was to inflame the minds of the jury against the defendants. Plaintiff had a verdict for $7,000. Held, 1. That the evidence being admissible in degree no exception would lie to its reception on the ground of its insufficient force or weight to establish the fact of culpable negligence. The N. Y. SUPREME COURT. GEN'L TERM, evidence being admissible, it was not FOURTH DEPARTMENT. the duty of the Judge to instruct the Cleghorn, respt., vs. The N. Y. C. & jury to disregard it. H. R. R. R. Company, applt. Decided January, 1876. Evidence that defendant's agent know ingly employed a switchman who was intemperate and incompetent is admissible on question of positive puniitive damages. Courts rarely exercise this right to grant a new trial on the ground of excessive damages. 2. That the power to grant a new trial on the ground of the excessiveness of damages is possessed, but rarely exercised by the Court, and plaintiff's injuries having been severe and having disabled her for many months and may be permanently, the verdict should not be disturbed. Judgment affirmed. Opinion by Smith J.; Mullen, P. This action was for damages received J., and Gilbert J., concurring. PARTNERSHIP SETTLEMENT. Augsbury applt. v. Flower, respt. except upon clearly proved allegations of fraud or mistake. That the presumption in all such cases is in favor of the correctness of the accounts, and that the parties were Where partners have settled and liqui- possessed of ordinary capacity and indated their accounts Courts of Equity telligence, and competent to take care will not open them except upon of their own interests. This action is an equitable one to settle partnership accounts. The parties in Oct. 1859 engaged in the purchase and sale of butter, and during that Fall sent to New York and Boston a large quantity of butter purchased principally with moneys borrowed for that purpose on drafts upon their consignees and promissory notes discounted at county banks upon their joint credit and responsibility. The referee found that in February, 1861, the parties met for a settlement If palpable errors are charged and result of imposition, mistake or fraud, proved, errors which are clearly the the account may be so far opened as to correct such mistake or error. The burthen is on the parties alleging the error to prove it. The plaintiff having failed to show the accounts and settlement, the judg that there was any fraud or mistake in ment of the referee is right, and must, therefore, be affirmed. Judgment affirmed. Opinion by Smith J.; Mullin P. J. TESTAMENTARY CAPACITY. DENCE. of their transactions, and that on this and Gilbert J., concurring. The referee also found that when this arrangement or settlement was made or entered into the plaintiff knew, or was in a situation to know, what amount the defendant had paid on the partnership debts, and as there was no direct proof of mistake or fraud he dismissed the complaint. L. J. Dorwin, for the applt. Held, That where parties have settled and liquidated their accounts courts of equity will not interfere to open them, N. Y. SUPREME COURT, GENERAL TERM, Decided January 1876. Searles et al, Executors, applt. v Harvey and others, respts. In proceeding to have a will admitted to probate, an inquisition of lunacy previously found raises a presump tion of testator's incapacity, which it requires some evidence to over come. This is an appeal from an order of the Surrogate of Jefferson County, refusing to admit a will to probate. The appellants are executors. Prior to testator's death, and on or about January 1873, an inquisition of lunacy was found, and such inquisition dissolved. The defendants then defound, that at its date, and for more murred to the complaint. The demurthan two years then last past, testator was of unsound mind and incapable of doing business. This date took his incapacity back to a time prior to the excution of the will in question. J. Mullen Jr., for applt. Hubbard & Watts for respt. Held, That such inquisition is not conclusive evidence of the incapacity of the testator to make a will. It is only presumptive evidence of such incapacity, but some evidence is necessary to overcome such presumption. The evidence given on the hearing before the Surrogate was insufficient for this pur pose. Order of Surrogate reversed. rer was brought on for argument at special term and overruled. The plaintiff duly appealed from the order dissolving the injunction, and the defendants duly appealed from the order overruling the demurrer. Both appeals were brought on for argument together. Robert, for plaintiffs. Hiscock, Gifford & Doheny, for defendants. Held, 1. It is the settled doctrine of the Courts of Equity that deeds and other contracts fraudulently obtained may be set aside or ordered to be delivered up and cancelled. Te complaint in this action set up a proper Opinion by Smith J.; Mullen P. J. case for the exercise of the equitable and Gilbert J. concurring. INJUNCTION. FRAUD. N. Y. SUPREME COURT, GENERAL TERM. power of the court, and the demurrer to said complaint was properly overruled and the order should be affirmed. 2. The order dissolving the injunction was doubtless granted upon the assumption that the plaintiff had a The Globe Mu. L. Ins. Co., respt., v proper remedy at law, and that the Reals et al, applts. Decided January, 1876. Equity may decree the delivery up and cancellation of deeds and other writings procured by fraud, and will enjoin their transfer or disposition pending the suit. This is an action in equity to set aside a policy of insurance upon the ground that its possession was obtained by fraud. complaint did not in this view state facts sufficient to constitute a cause of action. The decision upon the demurrer dis affirms this view of the law of the case, and involves a reversal of the order dis solving the injunction and a restitution or revival of the same. The order dissolving the injunction should therefore be reversed and the in At the commencement of the action an injunction was granted restraining the defendant from transferring the policy, with an order that the defend- of the appeal. ants show cause why such injunction should not be continued. On the re- and Gilbert, J., concurring. turn of the order the injunction was junction restored, with costs of the appeal and the order overruling the demurrer should be affirmed, with costs Opinion by Smith, J.; Mullin, P. J., |