A note given to obtain the signature of a creditor to a composition deed, the amount of which is in excess of the amount paid other creditors, is void. Slade, survivor, v. Wilson. 148
When a defendant, setting up such a defense, fails to establish it but is allowed, without ob- jection, to prove, uncontradicted another, viz.: want of consideration, it is error to refuse to direct a verdict for the defendant. Ib.
The court can only order the exceptions taken in a case to be heard in the first instance at the General Term. Benedict v. Phelps.
Whether or not an accident by which plain- tiff was injured could have been avoided by proper care and diligence is a question for tue jury. Haycroft v. L. S. & M. S. R. R. Co. 155
Where upon the return of an order to show cause why a mandamus should not issue, affida- vits are presented on behalf of the defendant, upon which the relator takes no issue, but pro- ceeds to argument, he admits the truth of the The Special Term has no power to order a defendant's averments. The People ex rel.. motion for a new trial, upon exceptions, to be Tenth National Bank v. Board of Apportion- heard in the first instance at the General Term, ment of N. Y. 84 after having entertained a motion for a new trial, upon the judge's minutes; and it makes no difference that the latter motion was based upon questions of fact; the code allows no separation of the application. The People v.
Courts should not set aside a verdict of a jury except upon clear and palpable evidence of fraud, bias, or prejudice. Hill admr. v. The N. Y. C. & H. R. R. R. Co. 94
When the plaintiff has knowledge of the transaction in controversy, which is the subject of the action, and is not called as a witness, it is not error in the judge to submit to the jury the plaintiff's absence for them to consider, and it is not error for the judge to instruct them that if they find such absence to be of a suspicious character, that it would throw suspicion upon plaintiff's case. Brooks v. Steen, imp'd., &c. 96
Under Sec. 391 of the Code, the plaintiff may examine the defendant before issue joined, and before the service of the complaint. Glenney v. Stedwell et al. 97
Supreme Court rule 21, if intended to affect this right, is inoperative. 1b,
If the affidavit upon which the application is based gives the judge power to act, his action is discretionary, and cannot be reviewed by the Court of Appeals. lb.
When more than three years have elapsed since the commencement of a suit, judgment by default will not be granted without notice to defendant. Phipps v. Cresson. 120
The difficulty of the legal questions involved, the length of the trial, the labor of preparing for trial, the amount of the verdict, the number of motions made in the course of the proceed- ings, are considered in determining whether a case is "difficult or extraordinary" for the pur- pose of fixing an allowance. Ib.
It is well settled that the court cannot set
aside a judgment to enable a party to appeal when the time to appeal has expired. There is no power in the court directly or indirectly to extend the time of appeal. Whitney et al v. Townsend. 172
The court is justified in regarding technical irregularities in the entry of judgment as waived by lapse of time, when there is nothing in the The court may correct an erroneous sentence papers to show that the advantages gained by any time during the term and before the sheriff the respondent by reason of gross laches of the has proceeded to execute sentence. In the mat- appellants is inconsistent with equity and jus- ter of Swan. 114 tice. Ib.
It is too late to raise an objection to the com- plaint for the first time on appeal, Holt v. Des- brough. 129
The court has power in its discretion to allow the discontinuance of an action without costs. Hilborne, assignee, v. Kolle et al,
It is error for the General Term on reversing a judgment, to direct judgment absolute unless it clearly appears that no evidence, upon a new trial, could change the result. Graves v. Water- 186 man, admr., et al.
upon exceptions filed after the decree, nor set aside a decree because it was obtained by fraud. In such case the remedy is by bill of review. Terry v. The Commercial Bank of Alabama. 279
An affirmative defense, alleged upon informa- Circuit Courts are not required to hear oral tion and belief, unsustained by proof, may be Gaul v. The Knicker- testimony in equity cases, but if they do it must stricken out as sham. 288 be reduced to writing and accompany the bocker Life Ins. Co. record, and must include testimony objected to and ruled out, subject to the objection. The The forty-ñrst rule of the courts of record of U. S. Supreme Court will not send the case back New York State does not entitle the party mak- to have the rejected testimony taken. Blease v.ing a case, as a matter of absolute right, to the Garlington. use of the stenographer's notes. Lathauer.
A party in whose behalf a witness is examined under the provisions of the Revised Statutes al- lowing the examination of witnesses for the purpose of perpetuating their testimony, cannot properly file the deposition until the examina tion of the witness is completed, although the Judge may have subscribed and certified it. II lett v. Wood et al.
In order to take advantage of a refusal of the judge to submit a specific question of fact to a jury, there must be a specific exception to such refusal. Moore et al v. Bristol et al.
The rule that if the charge does not mislead the jury, a new trial should not be ordered, ap- plied to a peculiar case.
Where a general exception is taken to the re- fusal of a judge to direct a verdict for defendants, no request being made that the justice submit to the jury any questions of fact, on appeal the party making the request is concluded by the finding of the justice from raising the point that specific questions of fact should have been sub- mitted to the jury-the justice having thereafter directed a verdict for plaintiff. Strong, recr., v. The N. Y. Laundry Mfg. Co. 334
The defense of usury should be made out by lb. a fair preponderance of evidence.
On a motion to set aside a judgment of divorce because of adultery, on the ground of fraud and collusion defendants affidavit is competent, though she might not testify as to her innocence 352 on the trial. Megarge v. Megarge.
In such a case it is proper to apply by motion Ib instead of by action. The rule that an abuse of discretion is ground Smith et for reversal applied to a peculiar case. al. v. Neals.
A verdict cannot be set aside as against evi- dence where the defendant has not moved for non-suit nor asked the court to direct a verdict in his favor. Peake v. Bell, 423
The practice with refererce to the writ of ne exeat requires the special allowance of the writ by an order of this court, and there should be an endorsement upon the writ by the clerk, showing the amount in which the defendant should be held to bail. Viadero v. Via- dero. 424
The liberal provisions of SS 173, 174 of the Code, with reference to amendment, applies to the writ of ne exeat. lb.
If upon a reference certain facts are not found, and no request made to find them, the appellate court cannot assume they existed, nor can it look into the evidence to ascertain whether facts were proved which if found would require the reversal of the judgment. Brett v. First Uni- versal Society. 433
Where there is a plain conflict of evidence upon one of the issues raised by the pleadings, it is error to take the question from the jury. Genet v. The Mayor &c. of N. Y.
A reargument will not be ordered to decide questions which may arise in other pending ac tions, when all the questions involved in the appeal have been passed upon on the former hearing. Becker v. Howard et al. 508
The court is not in error in refusing to leave to the jury the question of the value of the services for which the note was given, where the same were to be determined by the intestate, as that would be, in effect, to deprive the intestate of his power of determination. Earl v. Peck, admr. 527
For the reception of incompetent evidence which could not by any possibility harm any one, the court will not reverse a judgment. Lyng v. Boyd. 528
When a party requests certain specified ques- tions, for which there is no valid ground, to be submitted to the jury, it is to be assumed that
he intends to waive the submission of other questions. Dounce v. Dow et al. 536
An order directing service of summons by publication against a non-resident corporation An exception to the decision of a judge de- will be sustained under §135 of the Code, when nying a motion for a new trial on the minutes, the subject of the action is personal property, on the ground that the verdict is against the within the State, and the transactions in contro- weight of evidence, instead of its being on the versy took place here, and the cause f action ground of insufficiency of evidence to support arose here. Matter of the application of the At-it, is valid as to form, though the ground of the lantic Giant Powder Co., &c. motion does not come within the express terms used in $264 of the Code. Sharkey v. Torrilhon.
Where the judgment is entere upon the re- port of a referee and the General Term has a right to review the facts, it is its duty to pass upon them from the evidence. Godfrey v. Moser. 483
To order a non-suit on the opening of a case. the court must be satisfied that the counsel stated no cause of action in his opening, provi- ding same was fully proved. Shubert v. Shu- bert. 484
It was a proper question for a jury whether the President and Secretary of a company, in purchasing goods, &c., acted individually or for the company. Ingelhart et al. v. The Thousand Island Hotel Co. 492
of the counsel for either party, cannot instruct After a jury has retired, the court, in absence the jury on any point material to the issue. Burke v. Webb. 579
It is the province of the jury to reconcile the conflict of proof, and determine from all the evidence whether the truth is on the side of the complainant or of the defendant; and when this has been done, free from passion and prejudice, and the record contains evidence sufficient to sustain or justify the result, the verdict must be regarded as final. Berdel v. Berdel.
No appeal being taken from an order in be-
half of plaintiff amending the complaint upon the trial, the defendant being successful, it stands intact as a part of the case, with all the benefit to the plaintiff to be deprived therefrom. Hauck v. Craighead et al., exrs., et al.
deems most appropriate to the success of the business, has a sufficient interest to entitle him to insure the property. Kline et al, ex'rs. v. Queen Ins. Co. 343
And where such property has been insured as Where there is a conflict in the evidence upon property held in trust by the person to whom a material issue in the case, the court must sub-the policy issued, such property will be regarded mit the question to the jury. as coming within the terms of the policy.
PRINCIPAL AND AGENT.
A principal who ratifies the act of & voluntary agent who receives money for his principal and
makes a loan in his behalf as a condition of such receipt, is entitled to receive the money so paid to the agent upon the repayment of the loan made by the agent. Fowler et al. v. The New York Gold Exchange Bank. 1
A voluntary agent is entitled to be reim- bursed for expenses incurred in behalf of his principal, on the ratification by the principal of the agent's acts. Ib.
A principal can enforce all rights of action acquired on his behalf by his agent, irrespective of any obligations or liabilities arising in the transaction between the principal and agent. Indi inapolis, P. & C. R. R. Co. v. Tyng.
The fact that an agent has authority to do a certain act, does not warrant an inference that he has general authority. Express authority should be shown. Gillett v. Hall. 448
A corporation is liable only for the actual damages caused by the willful acts of its agent, done in the course of his employment, unless it shall have authorized such acts or ratify them after they are done. The agent alone is liable for all exemplary damages arising out of such act. McKinley v. Chicago & N. W. R. Co. 452
A promissory note given for work done for the principal by an agent having a power of at- torney, and signed "J. E., attorney for the estate of L. Hayes," does not bind the heirs of the estate, (the principals). Merchants Bank v. Hayes et al. 525
Where one employs a contractor to rebuild his house, under an agreement that the con- tractor shall make good any damage to a neigh- boring house, and the contractor uses insufficient means to support said house, whereby it was damaged, the employer is liable. Bower v. Peate.
It is the duty of a principal, when he termi- A principal is bound by the knowledge of his nates the agency, to notify all parties who have agent only so far as it was gained in the trans-been in the habit of dealing with the agent. action in which he was employed. Houseman | Claflin et al. v. Lenheim. v. The Girard Mutual Bldg & Loan Ass. 188
558 The fact that dealings between the parties had Where a contract is signed by "the cashier," been suspended for two years, and that on re- and it is found that he so signed under the di-suming them the principal dealt directly with rection of the president of the bank, and his act the parties, is not sufficient to constitute con- purported to be on behalf of the bank, the bank structive notice of the revocation of the agency. is bound. Merchants Bank v. The Meyers Steel &c., Co. 214
A party cannot avoid his agent's acts as to part of a transaction and avail himself of them as to the residue. Ib.
Commissioners appointed by and in pursuance of an act of the legislature for a particular pur- pose, viz.: to erect a court-house in one of the judicial districts in the city of New York, and havi g no corporate or continuous power, are agents of the city; and the city is liable for ex- penditures made by them in the prosecution of the work. Wood et al. v. The Mayor, &c., of N.
The remedy in such case is by action, and not Ib. by mandamus. Where an attorney is employed by a collec- tion agency to collect a claim, the attorney is the agent of the collection agency, and not of the creditor. Hoover, assignee v. Wise et al. 241
A general agent having the custody and con trol of his principal's property with full power to preserve and dispose of it in the way he
The immediate employer of the agent or ser- vant who causes the injury is alone responsible for such injury; to him alone the rule of re- spondeat superior applies, and there cannot be two superiors severally responsible. Wray v. Evans.
An intentional act which materially changes the contract without the surety's consent will discharge him, whether it was for his benefit or not, and even though he might have sustained only nominal damages. Polak v. Everett. 385
A surety is discharged by the creditor re- leasing a security in his hands for the princi- pal debt, though it does not go to cover the whole of that debt, and the creditor allows the surety the whole value of the security. Ib.
In order to discharge a surety on a bond for the faithful performance of his duties and trusts by the principal, there must be proof that the delinquency of his principal was caused by dis honest conduct or a gross violation of the obli- gations imposed by the bond. Atlantic and Pa- cific Tel. Co. v. Barnes et al. 413
The discharge of a bankrupt judgment debtor from a judgment from which an appeal is pend- ing, and before its affirmance upon such appeal, does not discharge the sureties upon the under- taking on appeal given to stay proceedings upon the judgment pending the appeal. Knapp et al. 600
As to where sureties on undertaking may jus- tify, see ATTACHMENTS.
The presumption is that a public officer per- forins his duty. This presumption may be over- come by evidence. Burditt v. Barry, 113
An officer to justify his acts must be an officer de jure. Ib.
Where the Commissioners of Public Works are authorized to contract for deepening a sewer, and after entering into a contract pursuant to such authority, for an open sewer, Held, that the Commissioners did not exceed their authority by entering into a subsequent contract with the of an open one without readvertising for bids. same party to construct a tunnel sewer instead Lutes et al. v. Briggs et al.
The Commissioners are not liable to parties who have paid the assessment for any surplus that may remain after the work is paid for; but the parties must look to the Common Council
The discretion of heads of departments in the
As to estoppel of surety from claiming a dis-removal of subordinates by way of discipline, is charge, see ESTOPPEL.
As to sureties on bond of insurance agent, see LIFE INSURANCE.
Where simultaneous purchase money mort- gages are given, but recorded at different times,
limited to cases which are in violation of pre- scribed regulations. People ex rel. McLaughlin v. Fire Department.
As to appointment of public officers, see AP-
As to liability of Commissioners of Highways, see HIGHWAYS
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