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the principal should fall due. The tors were to be deprived of the railroad company defaulted in the right of making the security availpayment of the interest due on able to themselves in any other May 1st, 1882, and in September, way than by such entry, use, or 1882, the plaintiff commenced this sale, upon a default in the payaction for the foreclosure of the ment of the interest when due. mortgage, asking for the sale of That neither did the mortgage the whole property covered by it, provide for the continued possesand for a provision to secure pay- sion of the mortgaged property by ment of the principal of the debt. the mortgagor for this intervening The defendant demurred to the period of twelve months, but on complaint as presenting a cause the contrary it was provided that of action, upon the ground that the absolute right of the mortno action of foreclosure could be gagor to the possession of the brought until the expiration of mortgaged property should contwelve months after a default in tinue no longer than it should pay the payment of interest.

the principal or interest of its

bonds when due, and it is clearly James C. Carter, for applts. Wm. Allen Butler, for respt.

to be implied from such provision

that in case of a default in such Held, That one of the purposes payment, the right of the comfor which the mortgage by its pany to such possession should terms was declared to have been cease and determine, and that, given was to “secure the due pay with the other provisions, entitled ment of the principal of the bonds the holder of the bonds to the apand the interest to accrne thereon," propriation and sale of the propand the right to enforce the mort erty by means of judicial proceedgage by foreclosure therefore arose ings. 106 U. S., 47; 7 Paige, 208, as soon as such interest had ac 210-11. crued and default had been made That the entire mortgaged propin its payment, for in no other erty may be sold under a judgment manner could it be made available obtained in an action for the foreas a security for the due payment closure of the mortgage even where of the interest.

only a part of the mortgage debt That the clauses providing for may have matured and become an entry upon and the use or sale payable. 94 U. S., 463; 5 Duer, of the mortgaged property by the 675, distinguished. trustee, after a continued default Judgment affirmed. for the period of twelve months, Opinion by Daniels, J.; Davis, were designed to affect and qualify P. J., and Brady, J., concurred. only this right of entry, possession and sale, and that it was not provided in the mortgage, nor was it to be implied from any of the language made use of that the credi

Vol. 20.-No. 5.




William Smyth, as acting suMorris J. Meyer, applt., v. perintendent of insurance, &c., v. Henry S. Rasquin, respt.

Edward Rowe et al. Decided Oct. 31, 1884.

Decided Oct. 8, 1884. In an action for the removal of an assignee The grantee named in a deed the description for the benefit of creditors and the appointment of a receiver of the assigned property

in which erroneously omits a portion of the

premises intended to be conveyed is the and in which an answer was interposed but which was discontinued before trial upon

equitable owner of the portion of the prem

ises so omitted, and the sale of such prempayment of costs, upon the application of

ises upon the foreclosure of a mortgage the plaintiff, Held, That there was no basis

upon them, executed by such equitable upon which a computation for an allow

owner, couveys to the purchaser upon such ance could be properly made and that the

sale his equitable title and also a legal title court had no power to make an allowance.

acquired by him subsequently to the exeAppeal from an order granting

cution of the mortgage. an extra allowance.

Appeal from an order of the This action was brought under Special Term compelling a para general assignment to remove chaser upon a foreclosure sale to the defendant as the assignee of complete his purchase. one P. for the benefit of his cred In 1850 the National Mechanics' itors for alleged misconduct as Banking Association was the owner such assignee, and to appoint a in fee of the premises described in receiver of the assigned property. the mortgage foreclosed in this An answer was interposed, but be action. The premises then ran to fore trial the action was discon- the centre of the Bloomingdale tinned upon the application of Road. The Mechanics' Banking plaintiff upon payment of costs Association conveyed the premises and an order was subsequently to one C., bounding the same by made granting the defendant an the exterior instead of the centre allowance of five per cent. upon line of the Bloomingdale Road. the value of the assigned property. Subsequently the premises were J. J. Adams, for applt.

conveyed to R. and B., and thereG. W. Wingate, for respt.

after that portion of the BloomHeld, That there was no basis ingdale Road originally included upon which a computation for an in the premises owned by the Me. allowance could be properly made chanics' Banking Association was and that the court below there no longer used as a public highfore had no power to make the way. Chap. 697, Laws of 1867, allowance.

and thereafter R. and B. execuOrder reversed and motion ted a mortgage covering that pordenied.

tion of the premises as well as Opinion per curiam.

the remainder thereof. After the

execution of such mortgage they ferred to the purchaser their equitapplied to the Banking Associa- able title as well as their subsetion for a deed of the land form- quently acquired legal title. 67 erly included in the Bloomingdale N. Y., 437.

. Road, and thereupon a resolution Order affirmed. was passed by the Board of Direc Opinion by Haight, J.; Davis, tors directing the president and P. J., and Daniels, J., concur. cashier to execute a quitclaimi deed of said premises to R. and B., and stating such lands were

EVIDENCE. RECEIPT. intended to have been conveyed to N. Y. SUPREME COURT. GENERAL C. Subsequently a quitclaim deed

TERM. FIFTH DEPT. of said premises was executed by

Levi Maxfield, respt., v. George the officers of the bank and de

W. Terry, applt. livered to R. and B. The mortgage given by R. and

Decided Oct., 1884. B. was foreclosed in this action The giving of a receipt which specifies a parand the purchaser, upon the fore

ticular claim only, raises no legal presumpclosure sale, refused to complete

tion against the existence of another claim. his purchase, upon the ground that Appeal from judgment on verR. and B. were not the owners of dict at Circuit and from order dethe land formerly included in the nying motion for new trial. Bloomingdale Road at the time of Action to recover for board and the execution of the mortgage by lodging of two infant children of them.

G. T., deceased, alleged to have Edward Mitchell, for plff.

been furnished prior to 1879 by Hoffman Miller, for purchaser. plaintiff at the request of defendHeld, That although a mortgage,

ant and upon his promise to pay like a quitclaim deed operates only for the same. Defendant put in upon the present right of the party evidence a receipt given by plainexecuting it and an after-acquired tiff in the following words: “Horright or title does not inure to the nellsville, March 31, 1879. Re. benefit of mortgagee or purchaser ceived of G. W. Terry one hundred on foreclosure, 23 N. Y., 532, still, dollars, being the full amount for since it was the intention of the work up to date, leaving a balance bank to have included the lands due G. W. Terry for 272 16-32 in dispute in its deed to C., and of oats, 40c., eleven ($11.00) dolfor the purpose of completing that lars, to be paid in oats in 1879.” which was the understanding and (Signed.) “ Levi Maxfield." intention of the parties, the quit J. H. & G. W. Stevens, for claim deed was executed to R. and applt. B., they were the equitable owners

Eli Soule, for respt. of the lands in question at the Held, That unless a receipt is in time of executing the mortgage, full for all claims it cannot give and the foreclosure and sale trans- rise to the presumption that at the

date of the receipt the person to

from repudiating the contract in an action whom it was given was not indebt

to recover the price of the article soid.

To justify the reversal of the determination ed to the person giving it for any

of a trial court upon questions of fact it thing else than that specified in must appear that the findings of fact were the receipt. There is no such pre against the weight of evidence or that the sumption as in the case of a promis

proofs so clearly preponderated in favor of

a contrary conclusion that it is reasonably sory note. See 5 Den., 304; 2 Seld.,

certain that the trial court erred. 461.

Reversing S. C. 18 W. Dig., 39. Several points in the case were decided upon conflicting testi

This action was brought to remony, but we find no error.

cover the contract price for certain Judgment and order affirmed. water meters furnished by N.,

Opinion by Smith, P. J.; Bark plaintiff's assignor, under a coner, Haight and Bradley, JJ., con

tract with the Conimissioner of

Public Works of the city of New cur.

York. The defendant set up

fraud as defense, and proved by EVIDENCE. CONTRACT. C. that one G., an agent employed PRACTICE.

by N. to sell his meters to the

city of W., had made him offers N. Y. COURT OF APPEALS.

of money to secure his friendly Baird, applt., v. The Mayor, &c., offices in aid of introducing the of N. Y., respt.

meters there. This evidence was

objected to by plaintiff, on the Decided Oct. 7, 1884.

ground that it related to the decIn an action to recover for goods delivered laration of a stranger to the sub

under a contract the defendant set up fraud ject of the action, who was not as a defense and proved that the agent em

authorized to speak for any of the ployed to sell the goods to the city made of. fers of money to one C. to procure his friend parties to it, and also that it was ly offices to aid in introducing them. This so far removed from the scope of was objected to as the declarations of a

any proved agency of G. as to stranger, and that it was so far removed be inadmissible as against plainfrom the scope of the agency as to be inadmissible against plaintiff, the assignee of

tiff. The objections were overrulthe claim. The objection was overruled.

ed and plaintiff excepted. Held, Error.

Samuel Hand, Ashbel Green The number of water meters required by the and A. J. Vanderpoel, for applt.

city was discretionary with the Commissioner of Public Works under Ch. 383,

Francis N. Bangs, for respt. Laws of 1870, and he had authority to bind Held, Error. 56 N. Y., 95. the city by accepting those delivered under

Defendant set up as a counterthe Navarro contract. A purchaser of personal property delivered claim alleged defects and imper

in pursuance of an executory contract al. fections in the water meters furleged to have been procured by fraud, nished by plaintiff.

nished by plaintiff. No damages waives the objection he might otherwise

were claimed or found on the trial. have to the contract by the acceptance of the property sold after knowledge of the The affirmative findings of the fraud, and such acceptance precludes him I referee show that the meters de

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livered conformed in quality and spect to the contracts of corporacharacter with those described in tions than that applicable to the the contract.

contracts of private individuals. Held, That this question conla 71 N. Y., 329 ; 78 id., 215; 85 id., not under the circumstances be 467; 11 Wend., 188; 1 Phil. on Ev., raised for the first time in this 599, note 177. court. 25 N. Y., 268; 51 id., 93; Also held, That the provision of 65 id., 596; 49 id., 626.

Chap. 308 of the Laws of 1861, A judgment was entered for requiring all contracts on behalf of plaintiff on report of a referee, the city to be awarded to the lowwhich was reversed by the Gene est bidder does not apply to this ral Term and a new trial granted. case. It was claimed that this order of Also held, That the Commissionthe General Term, though erro er of Public Works had authority neous, might be affirmed to en to bind the city by accepting the able defendant to present its conn

meters delivered under the conterclaim.

tract. The acts authorizing the Com A purchaser of personal propermissioner of Public Works in ty delivered in performance of an his discretion to purchase water executory contract, alleged to have meters for the city of New York, been procured by fraud, waives and to raise in a manner specified the objection he might otherwise the money to pay therefor. Laws have to such contract, by the ac1870, Chap. 383, § 13; Laws 1871, ceptance of the property sold, Chap. 213, § 5, authorized said after knowledge of the fraud, and commissioner to enter upon an ex- such acceptance precludes him ecutory contract for such pur. from repudiating the contract in chase and left it in his discretion an action brought to recover the to determine the number of meters price of the article sold. required. 4 Paige, 251. A mistake It is the duty of a party who of the cummissioner as to the has been induced to enter into the number could not be deemed any making of an executory contract thing but an error of judgment on for the purchase of personal prophis part which should not be al- erty, through fraud, if he desires lowed to affect the rights of an to avail himself of that objection, innocent third party contracting to act upon the first opportunity with him. Fraud on the part of and rescind it by repudiating its the Commissioner must be clearly obligations and restoring whatever proved and cannot be presumed. has been received under it immeIf established by circumstantial diately upon discovering the al. evidence it must be by proof of leged fraud. If he delays acting such circumstances as are irrecon- and retains the property delivered cilable with any other theory than beyond a reasonable time to act, that of the guilt of the accused. or accepts performance after such No different rule prevails in re- I discovery, he is held to have rati

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