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in which he was a partner, and

that the Court erred in not so N. Y. SUPREME COURT. GENERAL charging the jury, and it was also TERM. FIRST DEPT. .

claimed that the damages were William McGibbon, respt., v.

excessive. William Euclid Young, applt.

John R. Dos Passos, for applt.

John Sidney Davenport, for Decided Oct. 8, 1884.

respt. The defendant, who was a partner in business

Held, That the charge of having of plaintiff, said of the latter to a third per. scuttled a ship to get the insurance son: “He is a thief. When I came down town

was slanderous per se, as it imthis morning my book-keeper reported to

puted the commission of a crime me that he had gutted the drawer.” In an action for slander, held that the words first

under Chap. 299 of the Laws of uttered imputed a crime, and that whether | 1870, or under $ 5365 of the R. S. the qualification added so reduced the of the U. S. charge as not to include the crime of theft,

That the words, "He is a thief," was properly submitted to the jury. It is slanderous per se to falsely assert that a

charged the plaintiff with the person has scuttled a ship to get the insurcrime of theft, and whether the

qualification so reduced the charge In an action for slander consisting in the two

as not to include that crime, was charges above referred to, a verdict for $3,000 damages is not excessive.

properly submitted to the jury.

72 N. Y., 418. Appeal from a judgment recov That the amount of damages ered on the verdict of a jury and awarded by the jury cannot be from an order denying a motion held to be so excessive as to indifor a new trial.

cate any bias or prejudice against This was an action for slander. the defendant, for it was no more It appeared that the defendant than for grave charges of this dewho was the partner in business scription, might be considered by of plaintiff at the time, said of the the jury as an appropriate recomplaintiff in the presence of a num- pense in the case, ber of hearers, “He is a thief. Judgment and order affirmed. When I came down town this Opinion by Daniels, J.; Davis, morning my book-keeper reported P. J., and Brady, J., concurred. to me that he had gutted the drawer." “ He has scuttled a ship to get the insurance.” Upon DIVORCE. ALIMONY. the trial the jury gave a verdict

N. Y. COURT OF APPEALS. for $3,000. It was claimed upon appeal that the words, "He is a

Washburn, respl., v. Catlin, thief," &c., were not slanderous,

applt. since all that was charged, as shown by the latter part of the Decided Oct. 21, 1881. speech, was that plaintiff had

Under $ 59, tit. 1, ch.'8, part 2 R. S. the taken property of a partnership court may, after the entry of a decree of

divorce, make an allowance for the support In an action against a sheriff and his inand education of the children of the mar demnitors for damages for a wrongful levy riage.

and sale of a lathe claimed by plaintiffs Modifying S. C., 18 W. Dig., 442.

as mortgagees, it was admitted that the

sheriff had an alleged execution in favor of This was an appeal from an the indemnitors against one C., bu: the inorder of General Term, reversing demnitors did not prove that they were not an order of Special Term, which

creditors of C. or that they had a judg.

ment against him. Held, That they were denied an application by plaintiff

not in a position to attack plaintiffs' title for a provision for the maintenance for fraud. and education of her daughter, an Plaintiffs proved that they gave notice of

their claim and forbid the sale ; that one of infant, the issue of a marriage be

the indemnitors nodded to the auctioneer, tween herself and defendant,

who announced that the purchaser would which was dissolved by a decree

get a good title, and knocked down the of the Supreme Court in June, lathe to the indemnitors. Held, sufficient 1874, but without an award of

to charge all the defendants with a taking. alimony or provision for the sup This was an action to recover port of said issue.

damages for the wrongful sale of J. Langdon Ward, for applt. plaintiffs' property under an alE. Elliott Minor, for respt.

leged execution. The action was

brought against B., as sheriff, F. Held, That under $ 59, Title 1, C. and E., his indemnitors. It apChapter 8, Part 2 of the Revised peared that (C. and E. recovered a Statutes the petitioner was entitled judgment against one W. H. C.) to an allowance for the support an execution was issued against and education of the issue of her

one W. H.C., and the sheriff levied marriage with defendant. Said

on a lathe which plaintiffs claimed section was preserved by $ 3 of belonged to them, as mortgagees. the repealing act, Chap. 245, Laws Defendants claimed that plaintiffs' of 1880, 20 W. Dig.

claim of title was fraudulent, be. Order of General Term, revers cause there was no actual change ing order of Special Term denying of possession. A notice in writing application, modified by confining was served on the sheriff the day the allowance to the time that has before the sale, asserting plaintiffs? elapsed since the filing of the pe title to the lathe, and demanding tition, and as modified affirmed.

its possession. The next day the Per curiam opinion. All con sale took place in the presence of cur, except Rapallo, J., absent.

plaintiffs' attorney, who found on the premises, besides the auction

eer, a person who represented himCONVERSION.

self to be the attorney for C.and E., N. Y. COURT OF APPEALS. a deputy sheriff, and E. A discus

sion took place between the plainMcKinley et al., appls., v.Bowe,

tiffs' attorney and the attorney for Sheriff, et al., respts.

defendants, in which the sale was Decided Oct. 21, 1884.

disputed and forbidden. A sim

may arise.

ilar discussion was had with E. Decided Oct. 8, 1884. When the auctioneer offered the The Court will relieve a purchaser of real es lathe for sale che plaintiffs' attor tate upon a judicial sale from his bid if ney again interposed, forbidding there is some practical and serious questhe sale. One of the defendants

tion affecting the title upon which persons noded to the auctioneer, and he

not parties to the suit, and who cannot be

estopped by the judgment, have a right to announced that if the lathe was

be heard in some future litigation which sold the purchaser would get a good and absolute title. It was

In the chain of title to certain real estate knocked down to the defendants,

sold upon foreclosure of a mortgage, there

appeared a conveyance by one Martin, as and the auctioneer announced that

special guardian of certain infants, to one it was sold to C. and E. It was ad Mather for $8,000, and a simultaneous remitted that the deputy sheriff had conveyance by the latter to the former for

$100. Held, That such conveyances were, an “alleged execution” in his

upon their face, presumptively fraudulent hands against W. H. C. in favor of

and invalid, and, unexplained, entitled the C. and E., by whom the sheriff had purchaser to be relieved from his bid. been indemnified. Defendants C. and E. did not show that they Term, granting the petition of Jon

Appeal from order of Special were creditors of W. H. C. or

athan M. Dake to be relieved from pioved a judgment against him.

his bid and purchase of real estate The complaint was dismissed. Artemas D. Smith, for applts.

upon a sale under a foreclosure of

a mortgage. Edward D. Crittenden and F.

The petitioner rested his claim E. Dana, for respts.

for relief upon the ground, among Held, Error; that defendants were not in a position to attack plain- ble title could not be conveyed to

others, that a good and indefeasitiffs' title for fraud as they had him, for the reason that the mortnot put themselves in the position of creditors by competent proof;

gagor had derived title from one that plaintiffs' evidence was enough

Martin, who had acquired title to charge all the defendants with from one Mather for the nominal

consideration of $100, to whom by a taking.

deed executed simultaneously, as Judgment of General Term,

appeared upon the face of the affirming judgment dismissing

papers, Martin had conveyed the complaint, reversed and new trial

premises for $8,000, as special granted.

guardian for that purpose of cerPer curiam opinion. All concur,

tain infants. These infants were except Rapallo, J., absent.

not parties to the foreclosure suit,

and were consequently not bound JUDICIAL SALE. PURCHASER by the judgment. N.Y. SUPREME COURT. GENERAL Wingate & Cullen, for applt. TERM. FIRST DEPT.

James Wood, for respt. The Peo., &c., v. Globe Mutual Held, That it is now well settled Ins. Co. In re. Dake, applt. that upon a judicial sale the Court

will relieve a purchaser if the title

EMINENT DOMAIN. be a doubtful and unmarketable one. 77 N.Y., 578; 20 Hun, 388 ; . N.Y. SUPREME COURT. GENERAL 20 id., 267; 68 N.Y., 246; 27 id., 1.

TERM. SECOND DEPT. And it is only necessary, in disposing of such a case, to ascertain

In re application of the Staten

Island Rapid Transit R.R. Co, to whether or not there is some practical and serious question affect- acquire lands of Bechtel. ing the title upon which persons Decided Sept., 1884. not parties to the snit, and who

When a person whose lands are sought to be cannot be estopped by the judg condemned by a railroad company under ment, have a right to be heard in

the general railroad act, makes an issue some possible future litigation. 20 for trial, it is improper to appoint commis

sioners to condemn said land until the Hon, 267. That the record of title

route of said road is finally located, and showed

its face that it was a

an allegation in the answer of the party doubtful one, and open to litiga whose land is sought to be condemned tion for the transaction between tbat it is not the intention of said railroad Martin and Mather, as shown by

company in good faith to construct said the conveyances as they stood

proposed road, puts the burden of proof

on the petitioner. upon the record, was presumptively fraudņlent, and, unexplained, Appeal by George Bechtel, from established that the procceding to

a Special Term order appointing sell the interest of the infant heirs commissioners to

to condemn his was a scheme of the special guard- | land for the purposes of the Staten ian to get title in himself without Island Rapid Transit Co.

Upon the payment of any consideration, the presentation of the railroad and the petitioner had, therefore, company's petition, Bechtel filed the right to refuse to take a title an answer, alleging, upon informastained with a legal and just pre- tion and belief, that it was not the sumption of fraud sufficient, un intention of said company in good explained, to invalidate these con faith to construct and finish a railveyances, and thereby assume the road from and to the places named responsibility of being able him in the articles of association, but self to show, in a possible action alleges the truth and fact to be by the said infants, that, notwith that on or about the 30th of standing appearances, the special “June, 1883, the said Staten Island guardian acted in good faith and “ Rapid Transit Co. leased from paid an actual consideration for

“the Staten Island Railway Ferry the land.

“ Co. for a term of years all the Order affirmed.

" railroad rolling stock and boats Opinion by Davis, P. J.; Dan

" of the said Staten Island Railiels, J., concurred.

way Ferry Co" * * * and that it was the intention of said Rapid Transit Railroad Co. to use said Staten Island Railway Ferry Co.,

and not to build an independent

DEPOSITIONS. road between those points.

No testimony was offered on be. N. Y. SUPREME COURT. GENERAL half of the railroad company nor

TERM. SECOND DEPT. on behalf of Bechtel.

James T. Lane, applt., v. RosUpon this state of facts the rail. well P. Williams et al., respts. road company applied for and obtained the order appealed from.

Decided Sept., 1884. William M. Mullen, for applt. An aflidavit may be made by an attorney who Stewart & Boardman, for respts.

knows the facts for a party who seeks to Held, That the answer of George

examine an adverse party under $ 870 of

the Code. Bechtel, whose lands were sought to be condemned by the railroad Appeal from an order that company, made an issue for trial. plaintiff be examined upon trial It is required by Ch. 140, Laws of pursuant to $ 873 of the Code Civ. 1850, $ 14, that the petition of the Pro.

The facts sufficiently apcompany shall, among

other pear from the opinion. things, state that it is the inten Martin J. Keogh, for applt. tion of the company in good faith Banks & Henderson, for respts. to construct and finish a railroad Held, That the affidavit upon from and to the places named in part of the defendants fully comthe articles of association. As to plies with $ 871 of the Code. The the allegation of an intention to body of the complaint is set out build the road, the landowner de so far as it states the cause of acnies the same fully. It is true he tion and the judgment sought to does not stop with a simple denial. be recovered. The nature of the He says further that the company defense is fully stated. The inhave illegally leased another rail- jury alleged is denied. The seizroad, and that this land is to be ure of the goods by attachment, taken as an extension of that road. which is the plaintiff's action, is This addition to the denial does alleged to have been made in good not qualify the denial in any way. faith and without malice and other The denial of the allegation that denials of specific allegations. The the company intend to build said application is made before answer. road may be true, and still the The affidavit states that the testiallegation in respect to the leased mony of James T. Lane, the plainroad be unsustained.

tiff, is “material and necessary to There were two issues made which the defendants therein,” both uprequired proof. The petitioner on the trial and also to properly had the burden of proof. 66 enable them to frame the answer. N. Y., 407; 77 N. Y., 557. The affidavit further shows that

Order appointing commissioners the examination is necessary in reversed.

order to show that certain specific Opinion by Barnard, P. J.; allegations in the complaint have Dykman, J., concurs.

no foundation in fact. It is ad.

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