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Appeal írom County Court judg- ( session, or permit the conclusion ment reversing justice's judgment. that no proof could be added on

Trespass. The damages claimed that question for the period anarose from the burning by de- terior to the last year. Taking fendant of a brush fence. The possession may not be actual pospremises are marsh lands adjoin. session or occupancy; the latter is ing and lying north of improved the condition following the taking lands of the parties. In the win- of possession which will permit ter and spring of 1881-2, plaintiff one to exercise his power over cut the brush on a part of the property or premises at his pleasmarsh adjacent to his land and sure. 1 Mackeldy's Civ. Law, that of defendant, and cut a ditch 236, $ 229; Burr. L. Dict., Posseson the north of the improvement sio. And after that relation is part of the way, and put a brush produced to one, another may not fence on the rest of that side; by entry and in the exercise of made a wire fence on the west side some power over premises be of it and along north of defend- deemed as having the actual posant's land, and near it made a session. The evidence offered was brush fence, this being on the competent and material.

. See 1 north side of a ditch made by de. Mackeldy's Civ. Law, SS 240, 244, fendant. In May, 1882, plaintiff 246. turned his cattle into the inclosure Judgment of County Court afthus made. In June following, firmed. defendant burned part of the

part of the Opinion by Bradley, J.; Smith, brush fence last mentioned. De- P. J., Barker and Corlett, JJ. fendant offered to prove that he concur. had been in the exclusive possession of the premises in qneestion for the last 19 years, which offer

EMINENT DOMAIN. was excluded, the court holding N. Y, SUPREME COURT. GENERAL that the inquiry about possession TERM. FIFTH DEPT. "must be confined to a recent time-say within the last year.”

In re petition of the N. Y., L. Wm. Porter, for applt.

& W. RR. Co., applt., for apChester M. Elliott, for respt.

pointment of commissioners to apHeld, Error. The case turns on

praise lands, &c., of Harriet A. the question of actual possession. Bennet et al., respts. Plaintiff's proof does not exclude Decided Oct., 1884. the possibility of defendant's

The measure of damages for property taken proving the possession as declared

for railroad purposes is its fair market value in his offer. The fact that de based on existing conditions and not on fendant did testify that he had speculations of future developments.

Where the parties have made a contract of not occupied the premises since

bargain and sale of the premises, leaving the fall before the trial does not

the question of consideration to be decided necessarily deny the fact of pos by certain commissioners named, who are

to proceed under the statute, and the con might be made with the property. tract reserves to the parties the right to ap. The Union elevator is small, compeal from their decision, Held, That the court upon setting aside the award on ap- pared with the 36 or 38 others at peal cannot direct the appointment of new

Buffalo, and it has not done much commissioners.

business of late years ; of all the Appeal from appraisal and re

elevators more than one-third are port of commissioners and from idle, but they have a revenue from Special Term order of confirma- the earnings of the others, arising tion.

from a combination between them, Proceeding by petitioner to ac- and by which they receive shares quire lands in Buffalo. Negotia- in the so-called Western Elevator tions resulted in a written contract Co., according to their capacity between petitioner and respondents and facilities. This arrangement Bennett, whereby petitioner agreed cuts off competition and makes the to buy and they to sell the prem- business more profitable than it ises. Petitioner agreed to proceed would otherwise be. Respondents under Ch. 140, Laws of 1850, as have an interest in the company, amended, for the purpose of ascer- but do not control it. Evidence taining the compensation which was admitted of the earnings of the should be paid. It was agreed first-class elevators and as to how that H., D. and C. should be ap- the Union elevator could be so inpointed commissioners to deter- creased in capacity by the requimine the compensation, the de- site expenditure as to produce a cision of a majority of them to be profitable income, and as to the binding. It was agreed that all estimated value of the premises rights of appeal given by law for elevator purposes. Respondshould be reserved to either party. ents were also allowed to prove Proceedings were had accordingly, that by operating their elevator in and the persons agreed upon were connection with another one, by appointed commissioners by order the improved means of machinery, of court; and after hearing proofs the quantity of grain handled two of them made a report ap- might be increased ; that respondpraising the value of the prements had an offer of connecting faises and the amount of compensa- cilities with the N. Y. C., &c., R. tion to be paid at $469,375, which R.; and that the property might report having been confirmed this be valuable as a coal-yard in conappeal was taken. The property nection with coal-shutes on adjawas the Union elevator on Buffalo cent property. creek. There was a difference in John G. Milburn, for applt. the estimates of witnesses for the E. C. Sprague, for respts. different parties as to the value of Held, Respondents are entitled the property of about $500,000. to the fair market value of the The highest estimates were based property, and that is the basis upon largely upon the earnings which, which the estimate should be made under certain assumed conditions, and allowed by the witnesses and

the commissioners. 19 Wend., 678, Order reversed and appraisaland 690 ; 13 Barb., 169 ; 9 Hun, 104 ; | report set aside. 27 id., 151 ; 29 id., 609. See 6 Al Opinion by Bradley, J.; Barlen, 115; 103 Mass., 365 ; 113 id., ker, J., concurs ; Ilaight, J., con262 ; 112 id., 305-6; 127 id., 358, curs, except as to the power to 363.

direct new appraisal before new Such value is to have relation to commissioners, upon which questhe time in question and is not con- tion he dissents ; Smith, P. J., not fined to any particular use, but the sitting. then market value may be given as for any use for which the

prop

MUNICIPAL CORPORATIONS. erty is the most advantageously adapted. 98 U. S., 403 ; 13 Gray, N.Y. SUPREME COURT. GENERAL 546 ; 5 T. & C., 217; 6 Hun, 149,

TERM. FIFTII DEPT. 154; 29 id., 1. Speculations of

Carl Nagle, applt., v. The City future developments and property relations are not a proper basis of of Buffalo, respt. estimate. 117 Mass., 302 ; 27 Hun, Decided Oct., 1884. 151.

In an action ex delicto against a city, it is not Individuals hold their property necessary to allege in the complaint that the subject to be taken for public uses, claim bas been presented to the common 17 Wend, 669 ; 13 Barb., 171 ; but

council for audit, as required by the city

charter. it is not intended that such taking shall be a matter of profit to the Appeal from Special Term judgowner, nor is it done for his bene- ment, sustaining demurrer to comfit, 9 Hun, 104, 106, but to give plaint. him full compensation measured Action for injuries alleged to upon a proper basis. 22 Hun, 176, have been caused by a street and 179.

sidewalk of the city being out of Much of the testimony was im- repair and unsafe. The demurrer properly admitted. 117 Mass., is founded on the fact that the 302, 306; 127 id., 358, 362 ; 19 complaint does not show that Wend., 690 ; 27 Hun, 149, 154. plaintiff's claim for damages was,

The conclusion must be that the before suit, presented to the comcommissioners reached their re mon council for its andit, as result by the application of errone- quired by the city charter. ous principles to the appraisal of Daniel Wallen, for applt. the value of the property.

Edward C. Hawks, for respt. The value is to be estimated as Held, That plaintiff's cause of of the date of the contract. 29 action is founded in the principles Hun, 336.

of the common law; it is not We think the contract still con- statutory, and it was complete tinues to speak, and we cannot or. without presenting his claim to der a new appraisal by other com the common council.

That remissioners. 50 N. Y., 250.

.

quirement of the charter is in the

nature of a condition subsequent.

out and terminate such business is not

within the evil which that statute was deNeglect to comply with it would

signed to prevent. defeat a recovery, but its observ

The officer before whom affidavits may be ance does not constitute any part taken without the State, under & 844, Code of plaintiff's cause of action. 82 Civ. Pro., is one who is authorized to take N. Y., 10; 10 Wend., 334 ; 12 id.,

acknowledgment of deeds by the laws of

this State and not by those of the State of 120.

his residence. It is not necessary in the com The fact that the officer knew the affiant or plaint to anticipate the adverse had satisfactory proof of his identity need

not be certified by the officer. party's answer and forestall his

A certificate by the clerk that he knows the defence and reply. It is only

name of the officer subscribed to the jurat when the matter is such that the

to be the autograph signature of such affirmation or denial of it is essen

officer is a substantial compliance with tial to the apparent or prima facie

$ 844.

What facts are sufficient to show an intent right of the party pleading, that

to dispose of property with intent to deit must be affirmed or denied by

fraud creditors within the statute relating him in the first instance. 11 Cush., to orders of arrest and warrants of at130; 101 Mass., 145; 8 Johns., 33;

tachment. 4 id., 304; 3 id., 438.

Appeal from order denying moMiller v. City of Buffalo, 1 tion to vacate an order of arrest Sheld, 490, considered.

and a warrant of attachment. Judgment reversed, with costs, Plaintiff was a resident of Canand defendant allowed to answer ada, and liad for a long time caron paying costs of appeal and ried on business there under the Special Term.

name of “Ross & Co.," without Opinion by Barker, J.; Smith, having a partner. He had also P. J., concurs in result; Bradley, for six years prior to December J., concurs; Haight, J., not sit- 18, 1882, carried on business at ting.

Oswego under said name without a partner. On that day, at Que

bec, he, in the name of Ross & Co., FICTITIOUS NAMES. AFFI

sold said business to defendant DAVIT. ARREST.

for $87,743.32, of which no part N. Y. SUPREME COURT. GENERAL was paid down. Defendant, who TERM. FOURTII DEPT. was his confidential agent, agreed

to remit him all collections from James G. Ross, respt., v. Samuel the business weekly as fast as reP. Wigg, applt.

ceived, with the exception of Decided Oct., 1884.

$8,000, which he was to repay Although one who violates the statute for within two years with interest.

bidding the transaction of business under Defendant was also to pay all of fictitious names is liable to punishment plaintiff's debts contracted in the therefor, the property tbus acquired is still business and unpaid at that time. his and may be sold or transferred by him

Plaintiff was compelled to pay in any of the modes known to the usages of business. A bill of sale given to close drafts drawn for said debts, which

were

defendant refused or neglected to | terminate and close out the lunipay, and also drafts accepted ber business it is doubtful whether for defendant's accommodation, it could be held invalid even if it amounting in all to $111,024.65, had been executed and was to be on which defendant paid $29,- performed within this State. Such 791.21. The drafts

all a transaction does not come withdrawn, dated and made payable in the evil which the statute was in Canada. This action was designed to prevent, as it does not brought to recover the balance due, impose upon the public or induce and upon the affidavits of plain- credit to be given upon a false tiff and one P. an order of arrest | basis. 72 N. Y., 196. Moreover, and a warrant of attachment were the act does not apply to co-partissued. The attachment was levied nerships located and transacting on certain property of defendant, business in foreign countries, as and he was arrested and confined they are permitted to use their in jail in default of bail.

styles or firms of their houses in Geo. N. Burt and W. F. Cogs

this State."

The bill of sale does not in well, for applt.

terms state where it is to be perW. H. Kenyon, for respt.

formed, but as it binds defendant Held, It does not appear that to “remit” to plaintiff weekly all any of the several contracts set collections, the presumption is forth in the complaint was entered that he was to remit to plaintiff at into in violation of the usury laws his place of residence. But if it is. of this State, or of the statute pro- silent as to the place of perform. hibiting persons from transacting ance, the rights and liabilities of business under fictitious names. the parties under it are to be de3 R. S., 7 ed., 2253; Laws of 1833, termined by the lex loci conCh. 281; Laws of 1849, Ch. 347. tractus. 2 Parsons on Cont., These statutes are penal laws and 582; 22 Barb., 118;.14 Wend., 249. have extraterritorial force. Therefore, if it was valid by the 87 N. Y., 430. Assuming that laws of Canada, where it was plaintiff had carried on the busi- / made and dated, it is valid everyness in violation of law he did not where. 72 N. Y., 474; 35 Barb., forfeit the property, he had ac- 182; Story Confi. Laws, S 282. All quired thereby or placed it out of the contracts except the bill of side of legal protection. 72 N. / sale were by their terms to be perY., 196. If he violated the statute formed in Canada. Whether, he

liable to punishment therefore, the action is upon the therefor, but the property thus drafts themselves or upon the imacquired was still his, and was plied promise to pay, springing subject to sale and transfer by any from the fact of payment by of the modes known to the usages plaintiff for the benefit of defendof business. As the bill of sale ant and at his request, they are was given, not to carry on, but to | Canadian contracts and are to be

no

was

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