Reports of Cases Decided in the Court of Appeals of the State of New York

TITLE.

1. One D. made a verbal contract with defendant to cut upon lands in D.'s possession, manufacture and deliver upon the side of the railroad track, 1,000 railroad ties at twelve cents each, to be paid for as the work progressed, the same to be defendant's as soon as cut from the stump; but the ties were to be inspected, and defendant was to take only such as were merchantable and suitable for the intended purpose. D. cut timber sufficient for about 800 ties, and drew it upon the lands of C. It was not cut up into ties. Defendant paid upon the contract about the contract price for 800 ties. After the timber was drawn out, D pointed it out to defendant, saying "here are your ties." Defendant replied that he wanted them inspected. Subsequently, the timber was levied upon and sold upon an execution against D. Held, that the defendant had acquired no title to the timber either under the original contract, as something remained to be done to identify the property embraced in it (i. e., the inspection) or by the subsequent transaction, as defendant did not then accept, but required an inspection; the title, therefore, remained in D., and passed by the levy and sale. Stephens v. Santee. 35

consideration, dealing upon the faith of such apparent ownership or right of disposition. Id.

To entitle a purchaser to the protection of a court of equity as against the legal title or a prior equity, he must not only be a purchaser without notice, but he must be a purchaser for a valuable consideration actually paid; he must have paid the purchase-money or some part thereof, or have parted with something of value upon the faith of such purchase, before he had notice of the prior right or equity. Mere security given for the purchase-money, or a credit upon a pre-existent debt, is not sufficient. Id.

Where stock is transferred partly in payment of a precedent debt and partly for a consideration paid at the time, the purchaser will not be regarded as a holder for value as against one having the legal title or a prior equity, so far as the assignment was received in payment of the precedent debt (GROVER, J., dissenting), but is entitled to a lien for the amount of the consideration paid, and to a repayment of that amount, before he will be required to reconvey the stock. Id.

Plaintiff was the owner of fifty shares N. Y. C. stock; she delivered the certificate therefor, assigned in blank, to P., to be used by him as security in stock transactions. P. transferred the certiticate to defendants as security to cover any balance upon his dealings in stock with and through them, notifying them that plaintiff was the owner. One S. acted as broker for P. in the purchase and sale of stocks, having written authority to act on P's behalf in any stock transactions with defendants. Subsequently, by direction of S., defendants sold the stock in

1. Where, by the contract with a
common carrier, he is exempted
from liability for loss or damage,
unless the same be proved to have
occurred by fraud or gross negli-
gence of him, his agents, or ser-
vants, in an action against such car-
rier the onus is upon the plaintiff
of proving such fraud or negli-
gence. Negligence must not only
be shown, but it must appear to
have caused, or at least contributed
to the injury. A defendant in such
an action has a right to rely upon
his exception to an erroneous rul-
ing of the court as to the burden
of proof, and to decline to intro-
duce further evidence, and the de-
cision will not be sustained upon
the ground that the evidence as it
stood showed negligence. Cochran
v. Dinsmore.
249

ficient to show the witness, or read
to him, the paper, and, if its genu-
ineness is admitted, the party can
introduce it when he has the case
and the right to put in evidence;
and it is not the legal right of the
other party or the witness to enter
into any explanation of the con-
tents of the paper until after it has
been introduced in evidence. It is
within the discretion of the court,
however, to vary the order of
proof. Romertze v. E. R. N. Bank.

577

A motion to dismiss a complaint
upon the ground that plaintiff has
no cause of action should specify
the defect, so that plaintiff may
have an opportunity to supply it
if in the evidence, or may move to
amend the complaint. Where the
defect is not specified and the mo-
tion is denied, an exception to the
decision is not available, if any
view of the evidence would sus-
tain a cause of action, and not
then unless it appears that the de-
fect could not be supplied. Webb
v. Odell.
583

It is not enough to justify a non-
suit that a court upon a case made,
might in the exercise of its discre-
tion grant a new trial. It is only
where there is no evidence in law,
which, if believed, will sustain a
verdict, that the court is called
npon to nonsuit; and the evidence
may be sufficient in law to sustain
a verdict, although so greatly
against the apparent weight of
evidence as to justify the granting
of a new trial. Colt v. Sixth Ave.
R. R.
671

See COMMON CARRIER, 8.
CRIMINAL TRIAL.
EVIDENCE, 5, 6.

NAVIGATION, 3.
WITNESS.

2. Proof of an advance of money to
a mortgagee, coupled with proof
that the one making the advance
has possession of the mortgage,
does not establish the fact of a
purchase of the mortgage, or of a
pledge thereof as security for the
advance. In the absence of writ-
ten evidence the presumption is
against any transfer. Bowers v. See ASSESSMENT AND TAXATION, 6, 7.
Johnson.

432

3. Where a party proposes to im-
peach a witness by proving incon-
sistent written statements, it is suf-

TRESPASS.

TROVER.

See DAMAGES, 4.

TRUSTS AND TRUSTEES.

1. An agreement in a bill of sale or instrument of transfer of personal property, that a portion of the purchase money of the goods sold may be paid to and among the creditors of the vendor, without a covenant or agreement on the part of the vendees thus to pay, creates no trust; the balance unpaid is a debt due the vendor, and can be reached by and held under an attachment against his property. Kelly v. Babcock. 318.

2. A condition attached to a power of sale contained in a trust deed, that the trustee shall only sell by and with the consent of the grantor, to be manifested by his uniting in the conveyance, is valid. It is an essential condition and cannot be dispensed with. If no provision is made for the execution of the power in case of the death of the grantor, it is extinguished by such death. Kissam v. Dierkes. 602

See CORPORATIONS, 5.
GIFTS, 2.

GUARDIAN AND WARD, 5.

1. An accommodation indorser of a note discounted at a usurious rate of interest, who did no act toward procuring the loan except to indorse the note, is not a borrower, within the provisions of the Revised Statutes (1 R. S., 772, § 8), as modified by the act of 1837 (Laws of 1837, chap, 431, § 4), which dispenses with an offer to pay interest or principal where the borrower seeks relief in equity against a usurious security. Ållerton v. Belden. 373

2. The mere fact that a party has made an agreement or given a security which is void for usury, is not sufficient to entitle him to apply to a court of equity to have the contract annulled. The right to this relief exists only when, from the form of the security, the defence cannot be made available at law, or where the instrument sought to be avoided is a cloud upon the title to land, or some other necessity for the interposition of a court of equity is shown. Id.

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 pro-
visions 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.
Id.

7. As to who can avail himself of
the plea of usury, see note. Id

4. The complaint set forth a series
of loans and advances, and of re-
newals of the notes given therefor,
and alleged that at the time of
each loan and of each renewal a
charge of one per cent upon the
amount of the debt was made in
addition to lawful interest, and
that thereafter a balance was
claimed by defendant (the lender)
as due to it on all the previous
transactions, and that it granted a
renewal of the loan upon the bor-
rower giving his note for the 1.
amount claimed. Upon demurrer,
Held, that this was a sufficient
allegation of a usurious agreement;
that the word "charge' in the
association in which it was found
in the complaint implied not only
a demand made, but an obligation
imposed and taken. M. E. N.
Bank v. C. W. Co.

635

5. Defendant's charter authorized it
to take the management, charge
or custody of property, and to
make loans and advances thereon
upon such terms and commissions,
and at such rates of interest, not
exceeding seven per cent, as might
be established by its directors.
(Chap. 378, Laws of 1867.) The
complaint alleged a charge by it
of one per cent over and above
lawful interest upon loans and
advances ostensibly as commis-
sions, but which were merely
colorable devices to evade the
prohibitions of the charter and of
the usury laws. Held, that the
complaint presented an issue of
fact for the jury as to whether the
one per cent was a bona fide com-
mission or a compensation for the
use of the money; that it was not
an issue of law which could be
joined in by demurrer.

Id.

VENDOR AND VENDEE.

Where, under a parol contract for
the sale of land, the vendee, with
the consent of the vendor, in pur
suance of the terms of the contract,
enters into possession and puts ir.
crops, the invalidity of the contract
to sell and convey does not affect
the vendee's title to the crops; and
if the vendor refuses to perform
and ejects the vendee, the title of
the latter to the crops is not there-
by divested. In such case, the
crops, as between the parties, are
not a part of the realty, but chat-
tels. (GROVER, J., dissenting.)
Harris v. Frink.

INDEX.

4. Where a vendee, under a parol
contract of purchase, enters upon
land with the permission of the
vendor, and under an agreement
that he may occupy and work it
until the vendor is prepared to con-
vey, he is a tenant at will, and as
such is entitled to the emblements,
unless he has made default in his
contract or committed waste, or in
some other manner terminated the
tenancy by his own wrongful act.
(ALLEN and GROVER, JJ., dissent-
ing.)
Id.

5. After a contract of sale has been
rightfully rescinded by the vendor
on account of fraud on the part of
the vendee, the contract is at an
end, and no act on the part of the
vendor alone can revive it. Kin-
ney v. Kiernan.

164

6. Consequently, after such a rescis-
sion, an action by the vendor
against the vendee upon the con-
tract of sale is not maintainable.
And the bringing of such an action
will not (without judgment therein)
revive the contract of sale so as to
constitute a bar to an action for
conversion previously brought by
the vendor against a third party,
who had received a portion of the
property from the fraudulent ven-
dee.
Id.

7. So, also, the receipt by the vendor
from the vendee of compensation
in
any form or upon any basis for
that portion of the goods which
the latter has retained, will not
affect the title to the residue or
the action pending for the conver-
sion thereof. A settlement, there-
fore, with the vendee, of the action
upon the contract of sale from
which is expressly excluded that
portion of the goods for the con-
version of which the first action
was brought, will not affect that
action. So long as the settlement
is confined to the portion of the
goods retained by the vendee, it is
immaterial to the defendant in the
first action whether it is in the
form of a payment as on a pur-
chase or of compensation for a
conversion. Nor is it material
whether upon such settlement the
vendor retains the original con-
sideration received under the con-

tract, or whether other compensa-
tion is substituted. It is not a
revival of the old contract, but a
new one different from and em-
bracing only a part of the subject
of the former. (GROVER and AL-
LEN, JJ., dissenting.)
Id.

As against a third person claiming
under a fraudulent vendee, in order
to establish a rescission of the con-
tract of sale, it is not necessary to
prove a return of, or offer to return
any securities received thereon if
the vendor refrains from asserting
any title to those securities founded
upon the original contract.

Id.

An agreement in a bill of sale or
instrument of transfer of personal
property, that a portion of the
purchase-money of the goods sold
may be paid to and among the
creditors of the vendor, without a
covenant or agreement upon the
part the vendees thus to pay, cre-
ates no trust; the balance unpaid
is a debt due the vendor, and can
be reached by and held under an
attachment against his property.
Kelly v. Babcock.
318

10. Where, in an executory contract
for the purchase and sale of per-
sonal property, there is no war-
ranty, express or implied, an
acceptance by the vendee after
examination or after an opportu-
nity for examination, in the ab-
sence of fraud, is conclusive of an
assent upon his part that the pro-
perty is of the quality contracted
for; but where the acceptance is
induced by artifice or fraud of the
vendor, by reason of which an
examination is prevented or inter-
fered with, the acceptance is not
binding as an assent to the quality,
and the vendee's rights under the
contract are unimpaired thereby.
Dutchess Co. v. Harding.

321

11. Where, after the receipt of a
written statement of the terms of
sale of personal property, the ven-
dee takes possession of the pro-
perty without any dissent, this
constitutes an acceptance of and
acquiescence in the terms, and the
statement becomes the contract of
sale. Dent v. N. A. S. Co. 390

« Anterior Continuar »

Libros

Reports of Cases Decided in the Court of Appeals of the State of ..., Volumen49