7. The provisions of the act prohibit-
ing corporations interposing the
defence of usury (chap. 172, Laws
of 1850) only prevent the avoid-
ance by a corporation of its own
contract upon the ground of
usury. They do not apply to a
case where the corporation suc-
ceeds to the rights of a party who
might avail himself of the provi-
sions of the usury laws. Where,
therefore, property is pledged to
secure a usurious loan, a corpora-
tion succeeding to the rights of
the pledgor is not prohibited from
demanding and recovering the
property pledged. M. E. Nat.
Bank v. The C. W. Co.
635
TIONS.
RAILROAD CORPORATIONS.
COSTS.
Costs on appeal in an action at
law are in the discretion of the
court only when the judgment is
reversed in part and affirmed in
part, or where a new trial is
granted. The addition to a judg-
ment in this court of the words
"with costs," or "without costs,'
cannot affect the right of the pre-
vailing party in such action.
Ayers v. The W. R. Corp. 660
""
See APPEAL, 5.
COUNTER-CLAIM.
See ABATEMENT AND REVIVAL, 1.
CONOR v. DEMPSEY (Mem.), 665.
error, therefore, lies to review
such judgment. The People v.
Bennett.
137
2. Upon a trial in the Court of Oyer
and Terminer the court has no
power to grant a motion to dis-
charge the prisoner upon the
ground that the corpus delicti has
not been proven. After the trial
has commenced the verdict of the
jury must be pronounced; but this
may be done under the advice and
direction of the court. All ques-
tionsof law arising upon a criminal
trial are to be determined by the
court, and it is the duty of the
jury to regard and abide by such
determination. Where the case,
therefore, presents a question of
law only, the court may and it is
its duty to instruct the jury to
acquit the prisoner, or direct an
acquittal and enforce the direc-
tion; and a refusal to give such
instruction or direction in a proper
case is error. If the prosecution
leave some element necessary to
constitute the crime entirely un-
proved, it is a clear case for the
interposition of the court. Id.
COURT OF OYER AND TER-
MINER.
COURT OF SPECIAL SESSIONS
(CITY OF NEW YORK).
A provision for the reorganization of
the Court of Special Sessions of
the city of New York is not em-
braced in and is not connected
with the subject of providing for
the government of that city. An
act providing for either is "local."
The insertion, therefore, in the
city tax levy act for the year 1870
of a section designed to accom-
plish the reorganization of said
court (section 49, chapter 383,
Laws of 1871), was in hostility to
section 16, article 3 of the State
Constitution, which declares "that
no private or local bill, etc., shall
embrace more than one subject,
and that shall be expressed in its
title," and said section is void.
Huber v. The People.
132
1. A decision of the Supreme Court,
reversing a conviction in the Oyer
and Terminer and granting a new
trial, is a judgment within the
meaning of chapter 82, Laws of
1852, and, as far as that court is
CREDITOR'S SUIT.
concerned, is final. A writ of See WETMORE v. CANDEE (Mem), 667.
CRIMINAL TRIALS.
1. Upon a trial in the Court of Oyer
and Terminer the court has no
power to grant a motion to dis-
charge the prisoner upon the
ground that the corpus delicti has
not been proven. After the trial
has commenced the verdict of the
jury must be pronounced; but
this may be done under the advice
and direction of the court. All
questions of law arising upon a
criminal trial are to be determined
by the court; and it is the duty of
the jury to regard and abide by
such determination. When the
case, therefore, presents a question
of law only, the court may, and it
is its duty to instruct the jury to
acquit the prisoner, or direct an
acquittal, and enforce the direc-
tion; and a refusal to give such
instruction or direction in a proper
case is error. If the prosecution
leave some element necessary to
constitute the crime entirely un-
proved, it is a clear case for the
interposition of the court. The
People v. Bennett.
137
2. The same strictness in regard to
exceptions will not be enforced in
criminal as in civil cases; but the
court will look at the substance,
with the view to promote justice.
A motion in form for the absolute
discharge of a prisoner may be re-
garded as, in substance, a request
to direct an acquittal, or that the
court instruct the jury, as matter
of law, that the prisoner could not
be convicted.
Id.
3. Of the crime of murder or man-
slaughter, the corpus delicti has two
components, viz.: death as the
result, and the criminal agency of
another as the cause. There must
be direct proof of one or the other.
Where one is proven by direct
evidence, the other may be by
circumstances. In determining a
question of fact upon a criminal
trial from circumstantial evidence,
the facts proved must not only all
be consistent with, and point to,
the guilt of the prisoner, but must
be inconsistent with his innocence.
Id.
4. A motive for the commission of
the crime cannot be imagined; but
the facts from which such motive
may be inferred must be proven.
A suggestion, therefore, in a
charge to the jury, of a motive,
not warranted by the evidence,
which may have influenced their
minds to the prejudice of the
prisoner, is error. (GROVER and
PECKHAM, JJ., dissenting.)
Id.
DAMAGES.
1. Successive actions cannot be
maintained for the recovery of
damages, as they may accrue from
time to time, resulting from an in-
jury to the person, the consequence
of a single wrongful act, but the
party injured is entitled to recover,
in a single action, compensation
for all the damages resulting from
the injury, whether present or
prospective. The limit in respect
to future damages is, that they
must be such as it is reasonably
certain will inevitably and neces-
sarily result from the injury. Filer
v. N. Y. C. R. R.
42
2.
The rule giving the plaintiff, in
an action for the conversion of
property, the benefit of the high-
est market price between the time
of conversion and trial, is not an
unqualified one. In an action
against a consignee, where the
evidence shows it was the intent
of the owner, and the agreement
between the parties, to have the
property sold when it reached a
certain price, and where it also
appeared it would have been diffi-
cult, if not impossible, to have
preserved the property until the
time when the price was fixed, an
allowance of a price thus fixed,
greater than that agreed upon, is
error. Matthews v. Coe.
57
3. The propriety of the rule itself, in
cases not special and exceptional,
questioned.
Id.
4. In an action of trover, interest is
DEMURRAGE.
as necessary a part of a complete
indemnity as the value itself, and, See READ v. PREST., ETC., D. AND
H. CANAL CO. (Mem.), 652.
in fixing the damages, is no more
in the discretion of the court.
McCormick v. P. C. R. R.
303
READ V. PREST., ETC., D. AND
H. CANAL CO. (Mem.), 652.
PHILLIPS v. SPEYERS (Mem.),
653.
CONOR V. DEMPSEY (Mem.), 665.
KETCHAM . TROXELL (Mem.),
677.
DAYS OF GRACE.
See BILLS, NOTES AND CHECKS, 2,
3, 4.
TRUSTS AND TRUSTEES, 2.
TERRETT v. N. Y. AND B. S. S.
M. AND L. Co. (Mem.), 666.
DEFENCES.
Although, where a wife has obtained
possession of the husband's pro-
perty from his bailee by a fraud,
the bailee could maintain an ac-
tion against both husband and
wife for the wrong, that is not a
defence to and will not bar a re-
covery by him against the bailee.
A liability of a plaintiff jointly
with another cannot be set up as
a bar to a claim due him individu-
ally, nor can a conditional or de-
feasible liability bar one which is
absolute and unconditional. Kow-
ing v. Manly.
192
See STATUTE OF FRAUDS, 5.
KETCHAM . TROXELL (Mem.),
677.
DEMURRER.
See PLEADINGS, 9, 10.
DETERMINATION OF CLAIMS
TO REAL PROPERTY.
1. A complaint an action to com-
pel the determination of claims to
real property, under the provisions
of section 449 of the Code, must
show by its averments that plain-
tiff has been for three years in
possession of the lands or tene-
ments, and that both plaintiff and
defendant claim an estate therein
in fee, or for life, or for a term of
years not less than ten. Austin v.
Goodrich.
266
2. Where the only allegation as to
defendant's claim is, that he un-
justly claims title to the premises,
it is insufficient, and the complaint
is demurrable.
Id.
See PLEADINGS, 1.
DIVORCE.
An order in an action for divorce,
requiring the husband to pay a
sum necessary to enable the wife
to carry on the suit, to be used for
a specific purpose in the suit, in-
stead of for the purposes of the
suit generally, is proper. Schloe-
mer v. Schloemer
82
DOWER.
1. A judgment in an action brought
by a receiver in behalf of creditors
against the debtor and his wife,
setting aside a deed from them to
a third person, and a deed from
their grantee to the wife, and di-
recting a sale of the premises,
where it does not appear that there
were any averments in the plead-
ing raising the question of her inchoate right of dower, and no recognition or provision in regard to that right is contained in the judgment, does not operate as an estoppel by record to defeat the wife's claim for dower in the premises upon the death of her husband. (GROVER, J., dissenting.) Malloney v. Horan. 111
3.
Where the owner of a tract of land lays it out into lots, and intersects it with a street or alley for the convenience of the lots, and sells a lot bounding it upon said street or alley, the purchase being made in reference to such convenience, the purchaser acquires an easement 'in the street or alley which cannot be recalled. Such an easement is not lost by mere non-user, and where the non-user is claimed as evidence of an abandonment of the right, it is a question of intent dependent upon the circumstances, and therefore, a question of fact. Wiggins v. McCleary. 346
2. The release by a wife of her inchoate right of dower operates only against her by way of estoppel. It must accompany or be incident to a conveyance by another, and binds only in favor of those who are privy to and claim under the title created by that conveyance, and if the conveyance is void or ceases to operate, she is again clothed with the right which she has released. (The case of the Manhattan Co. v. Evertson, 4 Paige, 457, distinguished, and that of Meyer v. Mohr, 1 Robt., 333, questioned.) Id.
4.
DRAINAGE.
See ASSESSMENT AND TAXATION, 8, 9, 10, 11, 12, 13.
EASEMENTS.
5.
1. One tenant in common cannot, by his sole act, create an easement in the premises held in common. Nor can a tenant in common, who owns other premises in severalty, so use the last as to acquire or exercise, for the benefit thereof, an easement in the property held in common; and he cannot, by grant or by operation of an estoppel or otherwise, confer upon another rights and privileges which he does not himself possess. Crippen v. Morss. 63
2. Where, therefore, a tenant in common, in a grant of premises held by him in severalty, has attempted to create an easement in the premises held in common, a subsequent grantee of all the tenants in common is not estopped, by the fact of his succeeding to the interest of the one who granted the easement, from asserting, as
a grantee of the co-tenants, the invalidity of the grant of the easement, and as against him it is void. Id.
The occupancy and use of lands for the purpose of constructing and maintaining ditches, as authorized by the provisions of the act appointing commissioners for draining certain lands in the town of Royalton, Niagara county (chap. 774, Laws of 1867), is such an interference with the proprietary interests of the owner as entitles him to the just compensation made necessary by the Constitution. (Con. of State, art. 1, § 6.) It subjects the lands to an easement in behalf of the public, depriving the proprietor of the full and free enjoyment of them. People ex rel. v. Haines. 587
Nothing less than a legal title in perpetuity will serve the purposes of the act or the object contemplated. The title to the easement can only be acquired by a grant in proper form. It was the duty of the commissioners, before entering upon the lands and constructing the ditches, to procure a grant from the owner, either by voluntary donation or for an agreed compensation, or upon an appraisal of damages as prescribed by law. Id.
EJECTMENT.
1. The docketing of a judgment in the office of the county clerk,
under the provisions of the act of 1840 (chap. 386, Laws of 1840), is not essential to the conclusiveness of a judgment in an action to recover possession of real property. If such judgment is docketed by the clerk of the court where rendered, as judgments in courts of record are required to be docketed (2 R. S., 360, § 13), it is sufficient. If the judgment was obtained by default, after three years from such docketing, it is conclusive upon the defendant, and upon all persons claiming from or through him by title accruing after the commencement of the action. (2 R. S., 309, § 38.) Sheridan v. Andrews. 478
2. Where, however, one has entered
into possession of premises, the
subject of such an action, claiming
under title not derived from de-
fendant, and accruing before a
recovery therein, the subsequent
acquisition by him of a title from
defendant does not deprive him
of the right of claiming possession
under the prior title, and the judg-See
ment is neither conclusive nor any
evidence against him; but in order
to dispossess him plaintiff must
Id.
prove his title.
3. The only office of a notice of lis pendens is to give constructive notice to, and to bind, by the subsequent proceedings, those who may deal with defendant in respect to the property involved in the action during its pendency and before final judgment. No notice is necessary to make the judgment effectual as against parties claiming under defendant by transfer subsequent to the judgment. The judgment disposes of the rights of the parties, is a matter of public record, and is conclusive both upon defendant and any subsequent grantee. Id.
4. A notice of lis pendens is unnecessary in an action to recover possession of real property, even as against a purchaser pendente lite. The plaintiff in such an action can only recover upon a legal title; it is only against mere equities that a purchaser without notice is protected. Id.
EMBLEMENTS.
See STATUTE OF FRAUDS, 6.
EQUITABLE LIEN.
See CAUSE OF ACTION, 5.
CORPORATIONS, 5.
PARTNERSHIPS, 2, 3, 5.
EQUITY.
Although relief will sometimes be granted by a court of equity to one who has not complied with the strict terms of his contract, yet it will only be done in cases where the party seeking it makes out a case free from all doubt, shows that the relief he asks is under all the circumstances equitable, and accounts in a reasonable manner for his delay and apparent omission of duty. Delevan v. Duncan. 485
SPECIFIC PERFORMANCE, 3, 4,
5, 6.
TITLE, 5, 6.
USURY, 1, 2.
ESTOPPEL.
1.
To establish an estoppel in pais, a party must show that the acts, declarations or omissions, out of which he claims the estoppel arises, influenced his conduct, or that he took action in the matter in reliance thereon. Malloney v. Horan. 111
2. A judgment in an action brought by a receiver in behalf of creditors against the debtor and his wife, setting aside a deed from them to a third person, and a deed from their grantee to the wife, and directing a sale of the premises, where it does not appear that there were any averments in the
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