will relieve a purchaser if the title be a doubtful and unmarketable EMINENT DOMAIN. TERM. SECOND DEPT. In re application of the Staten Island Rapid Transit R.R. Co. to acquire lands of Bechtel. Decided Sept., 1884. When a person whose lands are sought to be condemned by a railroad company under the general railroad act, makes an issue for trial, it is improper to appoint commissioners to condemn said land until the route of said road is finally located, and an allegation in the answer of the party whose land is sought to be condemned that it is not the intention of said railroad company in good faith to construct said proposed road, puts the burden of proof on the petitioner. one. 77 N. Y., 578; 20 Hun, 388; N. Y. SUPREME COURT. GENERAL 20 id., 267; 68 N. Y., 246; 27 id., 1. And it is only necessary, in disposing of such a case, to ascertain whether or not there is some practical and serious question affecting the title upon which persons not parties to the suit, and who cannot be estopped by the judgment, have a right to be heard in some possible future litigation. 20 Hun, 267. That the record of title showed upon its face that it was a doubtful one, and open to litigation for the transaction between Martin and Mather, as shown by the conveyances as they stood upon the record, was presumptively fraudulent, and, unexplained, established that the procceding to sell the interest of the infant heirs was a scheme of the special guardian to get title in himself without the payment of any consideration, and the petitioner had, therefore, the right to refuse to take a title stained with a legal and just presumption of fraud sufficient, unexplained, to invalidate these conveyances, and thereby assume the responsibility of being able himself to show, in a possible action by the said infants, that, notwithstanding appearances, the special guardian acted in good faith and paid an actual consideration for the land. Order affirmed. Opinion by Davis, P. J.; Daniels, J., concurred. Appeal by George Bechtel, from a Special Term order appointing condemn his commissioners to land for the purposes of the Staten Island Rapid Transit Co. Upon the presentation of the railroad company's petition, Bechtel filed an answer, alleging, upon information and belief, that it was not the intention of said company in good faith to construct and finish a railroad from and to the places named in the articles of association, but alleges the truth and fact to be "that on or about the 30th of "June, 1883, the said Staten Island Rapid Transit Co. leased from "the Staten Island Railway Ferry "Co. for a term of years all the "railroad rolling stock and boats "of the said Staten Island Rail* and that way Ferry Co" ** it was the intention of said Rapid Transit Railroad Co. to use said Staten Island Railway Ferry Co., 66 and not to build an independent road between those points. DEPOSITIONS. No testimony was offered on be- N. Y. SUPREME COURT. GENERAL half of the railroad company nor on behalf of Bechtel. Upon this state of facts the railroad company applied for and obtained the order appealed from. William M. Mullen, for applt. Stewart & Boardman, for respts. Held, That the answer of George Bechtel, whose lands were sought to be condemned by the railroad company, made an issue for trial. It is required by Ch. 140, Laws of 1850, § 14, that the petition of the company shall, among other things, state that it is the intention of the company in good faith to construct and finish a railroad from and to the places named in the articles of association. As to the allegation of an intention to build the road, the landowner denies the same fully. It is true he does not stop with a simple denial. He says further that the company have illegally leased another railroad, and that this land is to be taken as an extension of that road. This addition to the denial does not qualify the denial in any way. The denial of the allegation that the company intend to build said road may be true, and still the allegation in respect to the leased road be unsustained. * * ** There were two issues made which required proof. The petitioner had the burden of proof. 66 N. Y., 407; 77 N. Y., 557. Order appointing commissioners reversed. TERM. SECOND DEPT. James T. Lane, applt., v. Roswell P. Williams et al., respts. Decided Sept., 1884. An affidavit may be made by an attorney who knows the facts for a party who seeks to examine an adverse party under § 870 of the Code. Appeal from Martin J. Keogh, for applt. Held, That the affidavit upon part of the defendants fully complies with § 871 of the Code. The body of the complaint is set out so far as it states the cause of action and the judgment sought to be recovered. The nature of the defense is fully stated. The injury alleged is denied. The seizure of the goods by attachment, which is the plaintiff's action, is alleged to have been made in good faith and without malice and other denials of specific allegations. The application is made before answer. The affidavit states that the testimony of James T. Lane, the plaintiff, is "material and necessary to the defendants therein," both upon the trial and also to properly enable them to frame the answer. The affidavit further shows that the examination is necessary in 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 dressed to facts peculiarly within | being an irregularity not affecting the merits" with disbursements only. The appellant claims full costs for reversal. the plaintiff's own knowledge and the form of the answer will depend upon the facts developed by the examination. The affidavit fully complies with rule (79) 83. It may be made by an attorney who knew the facts. The present affidavit is made by the attorney but not upon information and belief. Order affirmed. Dudley R. Horton, for respt. Charles H. Noxon, for applt. Held, That the proceeding was both illegal and unfair. Upon a reversal or affirmance upon the merits the Court must award costs. Code, § 3066, sub. 3 Opinion by Barnard, P. J.; and 4. This case, however, is Dykman, J., concurs. JUDGMENT. COSTS. JURIS N. Y. SUPREME COURT. GENERAL claimed to fall under sub. 2 of this section, "If the judgment is reversed for an error in fact not affecting the merits, or if a new trial is directed" * * * the costs of the appeal are in the discretion of the Court. In this case the Stephen D. Horton, respt., v. judgment should have been reversed upon the merits. John P. Hawkins, applt. Decided Sept., 1884. The justice had lost jurisdiction of the case by calling the case before the When a case has been adjourned to a fixed time, and a new trial was improper hour to await the return of a venire issued at the request of the plaintiff, it is error for the plaintiff, in the absence of the defendant, to waive his venire and without waiting an hour take judgment. The justice loses jurisdiction by calling the case before the time. Appeal from a judgment rendered by a justice of the peace against defendant. The case had been adjourned until a fixed hour to await the return of a venire issued at the request of plaintiff. Immediately upon the arrival of the hour and in the absence of defendant, plaintiff waived his venire and without waiting an hour took a judgment. The county judge reversed the judgment and granted a new trial, because of the erroneous waiver of a jury in the absence of defendant," the same Vol. 20.-No. 1b. even if defendant was in default. With the proper judgment the case would not be included in that part of Sec. 3066 which refers to new trials. Judgment of county court reversed so far as it grants a new trial, and full costs upon reversal granted with costs of appeal. Opinion by Barnard, P. J. ; Dykman and Pratt, JJ., concur. EXECUTION. N. Y. COURT OF APPEALS. The First National Bank of Os wego, applt., v. Dunn et al., respts. The Second National Bank of Oswego, applt., v. Dunn, respt. Decided Oct. 28, 1884. Plaintiff in the first action replevined certain malt and defendants failed to give a bond for its return. Before the sheriff delivered it to the plaintiff, an execution in the second action was issued to him under which he levied on the malt. Held, That the levy could not be sustained. Reversing S. C., 17 W. Dig., 407. This was an appeal from an order of the Special Term granted on a motion, by plaintiff in the first above-entitled action, to set aside a levy by the sheriff under an execution in the second entitled action upon property, which is the subject of replevin in the first action. It appeared that the sheriff took possession of a quantity of malt under a writ of repleviu, requiring him to take that specific property. The defendants in the replevin suit failed to give a bond for the return of the property within the prescribed time. While preparing to deliver the malt to the plaintiff's in the replevin suit, as was his duty before delivery had been actually accomplished, the plaintiff in the second action issued to them an execution against D., the defendant, who was also one of the defendants in the replevin suit, and required him to levy on the same property. He made the levy. Louis Marshall, for applt. S. C. Huntington, for respts. Held, That the levy could not be sustained. 10 Pet., 404; 111 U. S., 176; 14 Johns, 86; 7 id., 142; 25 Wend., 614. Burkle v. Luce, 1 N. Y., 558; Seymour v. Newton, 17 Hun, 30, distinguished. The creditor here must pursue a remedy consistent with the sheriff's duty under the replevin, and with the hold law has upon the property. The issue of his execution gave him a general lien against the property of his debtor. He may proceed in equity, making all rival claimants parties, presenting if need be a transfer of the property by the plaintiff in replevin, avoiding multiplicity of suits, and so determining in one action the whole controversy. Order of General Term, reversing order of Special Term granting motion, reversed and order of Special Term affirmed. Opinion by Finch, J. All concur, except Rapallo, J., absent, and Ruger, Ch. J., taking no part. PARTNERSHIP. N. Y. COURT OF APPEALS. Cassidy et al., respts., v. Hall et al., applts. Decided Oct. 28, 1884. Defendants, in contemplation of assuming control of a corporation, entered into a written contract with it, which provided that they should make advances on orders for goods manufactured by it and for a percentage to be paid them on said orders, such advances to be secured by mortgage. Held, That this did not constitute a co-partnership. The fact that defendants endeavored to improve the financial condition of the company by giving directions to its employees, soliciting orders and trying to establish its credit, is not sufficient to create a partnership; nor will the fact that the company's factory sign contained defendants' names render them liable as partners for debts of the company, in the absence of proof that plaintiffs or other dealers with the company saw or knew of this sign, or that any reliance was placed on it when the debt was incurred. This action was brought to recover for goods sold and delivered. by plaintiffs to the U. S. R. Co. It was brought to recover against said company and defendants as co-partners. The defendants, H. N. & G., answered separately, and denied that they were partners with the U. S. R. Co., or that plaintiffs sold or delivered any goods to them. It appeared that H. N. & G. entered into a contract in writing with the U. S. R. Co.. which, after stating that they contemplated assuming control of said company, when they were satisfied that its business was profitable, and that it fully realizes their expectation, and that it is expedient that some arrangement should be made whereby the profitableness of the business may be ascertained and proven to the satisfaction of the defendants, and provision was made for an advancement of money by defendants for the benefit of the company, upon orders, for goods manufactured by it which they should approve. There were other provisions in regard to the advancements to be made, and for securing the same, and for a percentage to be paid defendants upon the orders. The agreement was dated April 22, 1880, and was to continue in force until February 1, 1881. It was afterwards extended until August 1, 1881. A chattel mortgage was also executed to defendants upon the property of the company to secure the advances made by them. Under the agreement advances were to be made only upon such orders as the defendants approved. Wm. B. Hornblower, for applts. Frederick M. Littlefield, for respts. Held, That the written contract did not constitute a co-partnership either inter se or as to third persons; that defendants were merely the financial agents of the company to make advances and discount their paper. When a party is only interested in the profits of a business as a means of compensation for services rendered or for money advanced, he is not a partner. 76 N. Y., 55; 87 id., 33; 76 id., 97, 344. It was proved that defendants made efforts to place the company in a sound financial condition, by giving directions to its employees seeking to obtain orders in connection with its business, and to establish its credit and build up its business. Held, That such acts were not sufficient to create a partnership, and might be done in conformity with the object and purpose of defendants' agreement with the company. A witness on the trial swore that there was a sign on the factory of the U. S. R. Co. which had on it defendants' names, and the words. "Factory, Top Floor." There was no proof that either of the plaintiffs ever saw or knew of this sign, or that any one else saw or knew of it who had dealings with the company, or that any reliance was placed upon it by plaintiffs when their debt was incurred. Held, That this was not enough to make the defendants liable as partners. |