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under which he bad levied on the have essentially modified the docdebtor's goods. On May 15, 1876, trine of the earlier ones; but this the sheriff being about to sell the case is squarely within the later goods under the said executions, rule, which we must follow. an oral agreement was made be The agreement of plaintiff and tween plaintiff, defendant and T., T. not to bid was sufficient consid. that plaintiff and T. would refrain eration for defendant's promise. from bidding at the sale and per- 3 Johns. Cas., 29; 13 Johns., 112. mit defendant to become the pur- Defendant could not avail himself chaser, and that defendant would of the statute of frauds, he not pay plaintiff and T. their judg. having pleaded it as a defence to ments, which, together with de- the agreement which was set out fendant's judgment, were liens on in the complaint. 94 N. Y., 431, the property. Accordingly plain-450. But the case is not within tiff and T. refrained from bidding, the statute, because defendant's except that T. made ore bid at de promise to pay the debt of the fendant's request, in order to carry judgment debtor was founded on out the arrangement, and defend a new consideration, viz., the ant became the purchaser. At promise of plaintiff. 8 Johns., the same time, defendant borrowed | 29, 39; id., 91 ; 15 Hun, 178; S. of plaintiff $100 and gave his note C. affd.; 80 N. Y., 269. therefor. T. has assigned his One F. testified that he was atjudgment and his interest in de torney of record in the judgments fendant's agreement to pay it to in favor of plaintiff, defendant and plaintiff. This action is brought T., against J. D. He had a talk on the agreement and the note. with his clients shortly before the A. S. Kendall, for deft.

sale. More than a year later he M. Rumsey Miller, for plff. wrote plaintiff to come and pay

Held, Agreements which neces. his costs, and on his coming he had sarily operate to restrain the na a conversation with him which detural rivalry and competition of fendant's counsel sought to prove. the parties, and thus result in the Witness testified that he asked disadvantage of the public or of plaintiff why he, defendant and third parties, are void as against T., did not buy the goods as it was public policy. 43 N. Y., 147; 3 talked when witness was there. Johns. Cas., 29; 6 Johns., 194 ; 8 Defendant sought to prove what id., 444; 13 id., 112; Hill & Den., answer plaintiff gave, and also 191 : 48 N. Y., 667.

But there are

what plaintiff said about getting his cases holding that the fact that an pay from J. D., and as to whether agreement has the effect to pre- he had any security for payment of vent competition at a public sale his judgment other than J. D.'s does not necessarily render the obligation. The evidence was ex. agreement void.

It depends on cluded. the intent. 3 Met., 384; 66 N. Y., Held, No error. The commu 288; 83 id., 14, 28. The later cases nications called for were in regard

to what plaintiff had done about a was so described in the deed. А matter in respect to which he had steam railroad has been contaken witness's advice; they rela structed, maintained and used in ted to the subject in respect to said street in a manner somewhat which the previously existing rela destructive of the use of the street tion of attorney and client was as such, without acquiring and formed ; and the occasion of mak- compensating for plaintiff's rights ing them arose out of such rela- in said street. tion. 80 N. Y., 394.

D. Wright, for applts., D. M. Motion denied and judgment Osborne & Co. ordered for plaintiff on the ver H. V. Howland, for applt., dict.

David M. Osborne. Opinion by Smith, P. J.; Bar S. E. Payne, for respt. ker and Haight, JJ., concur; Held, That plaintiff succeeded Bradley, J., not sitting.

to the right of R. acquired by purchase, and independent of the

public right to use the street. It EASEMENT. STREET.

was private property, which could N. Y. SUPREME COURT. GENERAL not be taken away or impaired TERM. FIFTH DEPT.

by the public authorities without

the owner's consent, except by Gurdon S. Fanning, respi., v. the constitutional exercise of the D. M. Osborne & Co. et al., right of eminent domain.

64 N. applts.

Y., 65, 73; 19 Hun, 30. Decided Oct., 1884.

Plaintiff is entitled to an injunc

tion restraining the use of the D. owned a tract including plaintiff's lot and

street by the railroad, and to rethe land now known as Garden street. In D.'s deed of plaintiff's lot it was described

cover for the injuries he has susas abutting on said street. Hela, That D.'s tained thereby. 90 N. Y., 122; 91 grantee acquired an easement in the street, id., 148, 153. independent of the public right to use it,

Kerr v. The People, 27 N. Y., which could be taken from him only by the exercise of the right of eminent domain. 188, distinguished. Plaintiff is entitled to an injunction re

Therefore it is no protection to straining an interference with his suid defendants that they are acting right, and to recover damages suffered

with the consent of the railroad thereby.

company under sanction of its Appeal from judgment on deci. | charter. Every person engaged in sion at Special Term on a trial. the work is a trespasser, and is

D. originally owned a tract, in individually liable, whether he cluding plaintiff's lot and land acts as officer, agent or servant of now known as Garden street, and another, and Osborne is not prowhen he conveyed to R., through tected by the fact that he has whom plaintiff derived title, he acted as president of D. M. Osowned the fee of the street, and borne & Co. the lot abutted on the street, and Cases of Bell and of Elliott, de

Vol. 20.-No. 5b.

cided by Rumsey, J. (Mss. Op.), | Plaintiffs might have united causes distinguished.

of action under each of the sections Judgment affirmed, with costs. specified in the indorsement in one

Opinion by Smith, P. J.; Brad- complaint, but in order to do so ley, J. concurs ; Barker, J., not they must have specified each secsitting ; Haight, J., not voting. tion in the indorsement on the sum

mons. The indorsement in this

case did that and nothing more EXCISE. PLEADING

and in the form prescribed by the EVIDENCE.

statute. The fact that plaintiffs,

in their complaint proceeded unN. Y. SUPREME Court. GENERAL der only one of the sections speciTERM. FIFTH DEPT.

fied did not effect the sufficiency Overseers of the Poor, respts., of the indorsement. v. John McCann, applt.

Held, Also, That the indorse

ment is none the less specific by Decided Oct., 1884.

reason of the reference not only The summons was indorsed thus: “This sum

to the act of 1857 but also "to mons is issued to collect penalties for viola the acts amendatory thereof." It tions of Sections 13 and 14, of the act to

still confines the action to a claim suppress intemperance, and to regulate the sale of intoxicating liquors, passed April

under the two sections specified. 16, 1857, and the acts amendatory thereof, It is simply matter of description November 24, 1880. N. B. Packard, Jus of the act containing those sectice of the Peace.Held, To be a suffi- tions. cient compliance with $ 1897 of Code of Civ. Proc.

The complaint alleged that deThe provisions of the statute respecting the

fendant was indebted to plaintiffs indorsement do not apply to the com "for several penalties for violaplaint. The sufficiency of the latter is to tions of sections 13 and 14 of the

be tested by the rules of pleading. Testimony that the witness bought cider of act,” etc., and it then set out that defendant, and was partially intoxicated by defendant at different times sold drinking several glasses of it is enough to spirituous liquors, in less quantibring the case within the prohibition of the ties than 5 gallons, without a liexcise law.

cense. Appeal from judgment of Coun Held, That the complaint is ty Court, affirming justice's judg. sufficient. It sets out several good ment.

causes of action under $ 13, and the Action for penalties under the reference to $ 14 may be treated excise law. The justice overruled as surplusage. defendants' objection that the A witness testified that the cider summons was not properly in which he bought of defendant and dorsed.

of which he drank several glasses, E. K. Burnham, for applt. partially intoxicated him. Camp & Dunwell, for respts. Held, That this brings the case

Held, That the indorsement suffi- within the rule of Board of Erciently complied with the statute. 'cise v. Taylor.

cise v. Taylor. 21 N. Y., 177.

Judgment affirmed.

ing property, the privilege of Opinion by Smith, P. J.; Bar. purchasing which within a certain ker, Haight and Bradley, JJ., time was held by plaintiff and concur.

which privilege he lost on ac

count of defendant's failure to EVIDENCE.

perform his contract. Upon the

trial the plaintiff's complaint was N. Y. SUPREME COURT. GENERAL dismissed at the close of his eviTERM. FIRST DEPT.

dence, upon the ground that such James M. Selover, applt., v Je. evidence was insufficient to conrome B. Chaffee, respt.

stitute a cause of action.

Chittenden, Toron send & ChitDecided Oct., 1884.

tenden, for applt. When a plaintiff's complaint is dismissed at Joseph Larocque, for respt.

the close of his evidence, upon the ground Held, That if this ground was that such evidence is insufficient to constitute

well taken as the case stood the a cause of action, the judgment cannot be sustained upon appeal if any evidence ma- judgment could not be affirmed if terial to sustain the issues on the part of any evidence material to sustain the plaintiff was improperly excluded dur- the issues on the part of the plain

ing the trial In an action to recover damages for a breach

tiff was improperly excluded durof contract to furnish a portion of the ing the trial. money required for the purchase of certain It was proved that, upon the mining property, the privilege of purchas- day fixed for payment and convey. ing which within a certain time was held

ance of the property, defendant by plaintiff, which privilege he lost on account of the defendant's failure to perform refused to complete the purchase his contract, it was proved that on the on the ground of certain defects day set for purchasing the property, n por existing in the title to the propertion of which defendant was to receive, defendant refused to perform, upon the

ty, and that thereupon an extenground that there were defects in the title,

sion of time was obtained for the and that thereupon an extension of time purpose of removing that obstacle. was procured for the purpose of removing It was then offered to be shown such defects. It was then offered to be

that an arrangement respecting shown that in the interval an arrangement was effected obviating the objection. This

these defects was effected in the evidence was excluded. Held. Error.

interval. This evidence was exIt was also shown that at one time plaintiff cluded and plaintiff excepted. had offered to relieve defendant of his con

Held, Error. That the fact was tract and defendant had declined to give it up. Plaintiff was then asked whether at

one which the plaintiff was entithat time he could have raised the money

tled to prove, and its exclusion necessary to purchase the property else- may have changed a material where if defendant had given up his con

aspect of the case. tract. This was excluded. Held, Error.

It was also proved that the This was an action to recover plaintiff at one time offered to redamages for a breach of contract lieve the defendant of his contract, to furnish a portion of the money and that the defendant refused to required to purchase certain mingive it up.

give it up. The plaintiff was then

asked whether at that time he is that there should be additional evidence could have procured the money

strongly corroborative of that given by the

prosecuting witness. necessary to purchase the property from some other source if defend Appeal from a judgment of the ant had thrown up his contract.

Court of General Sessions of the This question was excluded and county of N. Y., by which the de. plaintiff excepted.

Pendant was convicted of the crime Held, Error. That the plaintiff of perjury. had a right to show that he was

The indictment in this action anxious and able to protect his charged the defendant with having contract if defendent was not wil sworn falsely by giving material ling to go through with it, and evidence in an action for a limthat he could have performed on ited divorce” between certain parhis part if he had known in time ties. that defendant would elect to

The indictment was objected to abandon the contract, and that he upon the authority of 61 Barb., had therefore sustained some 35, as insufficiently stating the real and not imaginary loss.

issues in the action in which it was Judgment reversed and new claimed that the defendant had trial granted.

sworn falsely. Opinion by Davis, P. J.; Dan Frank J. Keller, for applt. iels, J., concurred; Brady, J., John Vincent, Asst. Dist. Atty., concurred in the result.

for respt.

Held, That the nature and de

scription of the action was suffiINDICTMENT. PERJURY.

ciently given by the indictment to N. Y. SUPREME COURT. GENERAL

enable the defendant to understand TERM. FIRST DEPT.

the charge intended to be made

against him, and that the indictThe People, &c., respt., 0. George ment conformed in that respect Grimshaw, applt. .

both to the rule in force before the

enactment of the Code of Criminal Decided Oct. 8, 1884.

Procedure and to the rules laid An indictment charging the defendant with down in such Code. Wharton, on having committed the crime of perjury by Crim. Law, 4th ed., $ 2263 ; Code giving material evidence in an action between certain parties for a limited divorce,

of Crim. Pro., S 276; Penal Code, contains a sufficient statement of the nature S 96. of the action in which it is claimed that the One of the defences alleged in perjury was committed.

the answer of the defendant in the A person is guilty of perjury who swears

action in which the perjury was falsely as to a fact material to a defence set up in an action, although such defence alleged to have been committed,

would fail without proofs of other facts. was that the plaintiff had comIn a prosecution for perjury the law does mitted adultery with an unknown not exact positive proof in addition to that

man on the 9th day of July, 1879, given by the prosecuting witness of the falsity of the evidence, but all that it requires ' at a house in 12th street, between

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