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are allowed to be relied upon Appeal from judgment on verwhenever the subject with which dict at Circuit, and from order de. they may be connected is made nying motion for new trial. the foundation of an action. That The firm of Getz Bros. for about no other circumstance has been three years prior and up to May required to entitle the defendant 6, 1874, occupied certain premises to present his counterclaim than in the town of Amherst. Title to that it arises out of the contract the premises was not in the firm forming the foundation of the or any member of it. Plaintiff action ; and, as that was its char- lived in Buffalo, and was a memacter in this instance, defend- ber of the firm, which was disant was legally entitled to rely solved May 6, 1874, when plaintiff upon it for his protection as long purchased the premises. In 1874 as plaintiffs could invoke the the premises were assessed to aid of the same agreement to es. Getz Bros. and a tax was levied tablish their demand against him. thereon. That tax was returned 3 Hill, 171.

uncollected and went into the roll Judgment reversed and new of 1875, under the heading, “Restrial ordered.

ident lands returned for non-payOpinion by Daniels, J.; Davis, ment of 1874, from the town of P. J., and Brady J., concur. Amherst for want of property to

make the same.” In the same roll

of 1875 the premises appeared asTAX. TENDER. SALE. sessed to plaintiff, and the roll

with the proper warrant annexed N. Y. SUPREME COURT. GENERAL

came to the collector, who levied TERM. FIFTH DEPT.

on some staves belonging to plainEdward M. Jewett, respt., v.

tiff, and sold them to defendant. Jeremiah C. Lamphier, applt.

This action was for possession of

the staves. Plaintiff claimed that Decided Oct., 1884.

he had discharged the lien of the Personal property of plaintiff was levied on tax by tender. He testified that

to satisfy his taxes; before sale plaintiff he tendered to the collector, before offered to pay the taxes, and the collector the sale, the amount of the tax, refused to take the money unless plaintiff and offered to pay everything repaid other taxes, which plaintiff was not bound to pay. Held, A sufficient tender to lating to his tax; that he did not discharge the lien of the levy, even though think anything was said about plaintiff did not actually offer enough fees ; that if there was, he offered money to pay the tax and the collector's

to pay everything, fees and all; fees; and one who, with knowledge of such

that the collector refused to accept tender, purchased at the sale got no title. The tax for 1874 on certain premises was as any money unless he would also

sessed to a resident of the town in which pay the returned tax against Getz they were situated, and was returned un

Bros., which plaintiff refused to collected. Held, That the tax was, in 1875, chargeable only against the land pay. The property was sold to assessed.

defendant, who had knowledge of



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all the circumstances of the tender, SECRET OF TRADE. IN. which he had helped plaintiff to FRINGEMENT. DAMAGES. make.

N. Y. SUPREME COURT. GENERAL E. B. Vedder, for applt.

TERM. FIFTH DEPT. Spencer Clinton, for respt.

Oliver H. P. Champlin et al.,
Held, That the warrant being respts., Thomas Stoddart,
regular on its face justified the impld., applt.
collector in making the levy. 5

Decided Oct., 1884.
N. Y., 376; 27 Barb., 34. But the
tender discharged that lien. 21 | A cosmetic, made and sold by defendant's
N. Y., 343; 65 id., 314; S. C., 22

agency, being an infringement of plain

tiffs' rights, defendant is liable, notwithAm. R., 612; 53 N. Y., 23; 9 Bosw.,

standing he assumed to carry on the busi358. Plaintiff held the burden of

ness in his firm's name on his partner's proving a good tender. 6 Wend., account. 22, 34; 15 id., 637; 46 Barb., 227; In such the measure of damages

adopted was the price realized by defend5 N. H., 440; S. C., 22 Am. Dec.,

ant from his sales, less what it would have 469; 5 Mass., 365; 6 Pick., 356.

cost plaintiffs to make and vend the same The collector's declarations dis quantity. Held, No error. pensed with tender of the fees. 9 Proof of advertising done by plaintiffs is ad

missible. N. Y., 525, 528; 10 Cush., 267; 7 id., 391; 2 Car. & P., 77; 1 Bing. Appeal from interlocutory judgN. C., 253; 3 Durn. & E., 683; 5 ment adjudging that defendant M. & W., 306. Plaintiff was not had infringed upon plaintiffs' bound to pay the tax assessed to right and title to make and vend Getz Bros. That tax in 1875 was a certain cosmetic, and ordering chargeable only against the land reference to find amount of damassessed, and not against any one ages sustained by plaintiffs therepersonally. Laws of 1855, Ch. by, and from Special Term order 427, Title 1, 85; 45 N. Y., 676, overruling defendant's exceptions 680; 29 Hun, 485. Defendant was to the referee's report and conchargeable with knowledge that firming such report, and from final the sale was invalid, and he can- judgment for recovery of the damnot object that plaintiff made no ages so reported. demand of possession before suit. Defendant was, by contract with 65 N. Y., 314; 5 Lans., 153; 6 plaintiffs, bound not to make or Hill, 613; & Barb., 213.

vend the cosmetic, the formula for Judgment and order affirmed. which was a secret of trade which

Opinion by Bradley, J.; Smith, he had sold to plaintiffs. Defend
P. J., and Haight, J., concur.

ant and his brother were partners,
and the former assisted in com-
pounding, bottling and labelling
the cosmetic made at the store of
the firm, and in shipping the same.
Defendant claimed the sales were


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made, not by him, but by the firm, facilities for abutting owners to go into a and his brother's account

street, nor are they bound to remove incon

veniences occasioned to sucb owners by alone. Plaintiffs were prepared

proper repair of the street. and able to have sold the same quantity as defendant sold, in ad

Appeal from Special Term order dition to what they did sell, dur- denying motion for new trial. ing the same period.

Action for personal injuries alNorris Morey, for applt.

leged to have been caused by deJames A. Allen, for respts.

fendant's negligence.

Market Held, That defendant was liable street is a principal street in Atto plaintiffs for damages resulting tica, running north and south, and from the sales.

coming into it from the west is a The price realized from defend cul de sac several rods deep, upon ant's sales, less what it would which are dwellings, a cooper-shop, have cost plaintiffs to make and etc., and the evidence tended to vend the quantity sold by defend- show that it has been used for ant, was a measure of damages to more than 20 years as a way to and which defendant cannot object. from said houses and business 10 Fed. R., 385; 8 id., 806; 1 places. Along the west side of Blatchf., 398, 406; 97 Mass., 208; Market street defendant has for 7 Cush., 222.

many years maintained a sidewalk Proof of advertising done by made of planks laid crosswise, explaintiffs was competent to show cept at the entrance of the way in what they had done to establish a question, where the planks were market in sections where defend- laid lengthwise. Before the acciant subsequently made sales. dent

defendant replaced

replaced the Judgment and order affirmed, planks with stone, except where with costs.

they had been placed lengthwise. Opinion by Smith, P. J; Brad. The custom had been to go with ley and Corlett, JJ., concur; Bar- loaded or unloaded teams to and ker, J., not sitting.

from the street by this way. In
September, 1879, plaintiff drove

from Market street to the cooperHIGHWAYS. NEGLIGENCE. shop, got a load of barrels, and on N. Y. SUPREME Court. GENERAL while passing over this walk and

his way back his wagon tipped TERM. FIFTH DEPT.

plaintiff was thrown out and hurt. John Porter, applt., v. The Vil. Some weeks before, defendant had lage of Attica, respt.

raised the walk several inches, and

filled in the street side of the walk Decided Oct., 1884.

so as to make a suitable approach Dedication and acceptance of a highway may to the way, but a few days before be inferred from its continuous public use

the accident the earth was washed for 20 years ; and the question of such use is for the jury.

out and a hole was thus made on Village authorities are not bound to provide the street side of the walk, into

which the wheels of plaintiff's 10 Allen, 290, distinguished. wagon dropped as they left the The evidence presented a fair planking, thus causing the injury. question for the jury, whether or There had been no formal dedica- not plaintiff was guilty of contribtion of the way to public use. utory negligence. 76 N. Y., 329 ; Plaintiff was non-suited, on the 91 id., 303; 80 id., 622. grounds that the way was a pri

Order reversed and new trial orvate one, and that there was no dered, costs to abide event. duty on defendant to make or Opinion by Bradley, J.; Smith, maintain an approach to it.

P. J., and Barker, J., concur; Wm. S. Oliver, for applt. Haight, J., not sitting. A. J. Lorish, for respt. Held, That legal dedication and

ASSIGNMENT. PARTNERacceptance of a public way may

SHIP. be inferred from continuous and uninterrupted use by the public N. Y. SUPREME COURT. GENERAL for twenty yesrs. 66 N. Y., 261;

TERM. FIFTH DEPT. 11 East, 375, note; 6 Wend., 657;

Dennis McCarthy et al., respts., 20 id., 116; 22 id., 450 ; 19 Barb.,

v. Leander Fitts et al., respts. 179, 195 ; 51 id., 438 ; 61 N. Y., 448; 26 Barb., 630. See 10 How., Decided Oct., 1884. 199 ; 37 Barb., 57; 66 N. Y., 261,

A partnership debt, although evidenced by 269; 3 Kent's Com., 451 ; 1 R. S., the individual note of a member of the 521, $ 100; 44 Barb., 596.

firm, is equitably payable out of the partCity of Oswego v. Oswego Canal,

nership property.

Where one partner sells his interest to the 6 N. Y., 257; Holdane v. Trustees

other, who continues the business in the of Cold Spring, 21 id., 474, distin firm name, debts contracted for goods sold guished.

to the house afterwards are, as against On this point there was evidence

other creditors, individual debts of the re

maining partner. enough to take the case to the jury. The way was capable of Appeal from judgment on Spebeing made a highway, although cial Term decision upon a trial. it was a cul de sac, 24 N. Y., 559 ; Action to set aside as fraudulent but the latter fact was a material a general assignment by defendant one bearing on the question. C. to defendant F. for benefit of

Also held, Market street does creditors. C. began business in not seem to have been out of re- 1879 and the next year formed a pair, and defendant is not bound partnership with his son under the to provide facilities for going upon firm name of “Jacob G. Conrad the street, and inconveniences oc & Son." On March 7, 1881, the casioned by proper repair of the

son sold all his interest to his street are to be remedied by the father, who took possession and abutting owners themselves. 45 N. continued the business for himself, Y., 129, will be applicable if the but in the name of “J. G. Conrad way is found to be a public one. & Son," until April 30, 1881, when

Vol. 20.-No. 10a.

he made the said assignment. Be- | ors, the debt of J. G. Conrad inditween February 18 and April 4, vidually. The son would probably 1881, plaintiffs sold said firm goods be liable to plaintiffs at law, but it on credit, and in June, 1881, re- is questionable whether they have covered judgment therefor against an equitable lien upon the partnerthe father individually, and the ship assets. father and son as such partners. Judgment affirmed, with costs. The assignment was made with Opinion by Smith, P. J.; Bar. preferences, among them being a ker, Haight and Bradley, JJ., debt evidenced by a note dated concur. July 6, 1880, for $1,000, payable in three months, to the order of

DOMICILE. SERVICE. Leander Fitts, the assignee, and signed by the assignor. The note N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT. was given for money used in the partnership business, and all the

George W. Huntley, respt., v. preferred creditors were those who James E. Baker, applt. had furnished goods to the firm

Decided Oct., 1884. prior to the son's transfer to his father. The trial court found that Intention alone is not sufficient to change or the assignment was without fraud. create a domicile; the fact of residence Waters & McLennan, for applts. Proof which merely shows discrepancy in

must concur with the intent. Howland & Wheeler, for respts. the officer's return of service of a summons,

Held, That the debt of Fitts was which discrepancy does not invalidate the in fact the debt of the firm, which service but shows that it was properly distinguishes this case from Wil

made, is no impeachment of the service. son v. Robertson, 21 N. Y., 587. Appeal from judgment on refSee 4 Sand., 299; 3 Duer, 7; 6 id., eree's report. 83; 3 Barb. Ch., 46.

Action on judgment of a WisBut assuming that the debt to consin court. The judge of that Fitts is to be treated as the indi- court, in November, 1881, issued vidual debt of J. G. Conrad, we a summons commanding that de think the judgment not erroneous. fendant, if found within the The son's transfer presumably county, be summoned to appear, vested the title to the partnership &c., to answer plaintiff to his damproperty in his father as his own age $200. Upon it was indorsed private estate, free from any lien the certificate of an officer that, or equity in favor of partnership defendant not being found, he creditors. 32 N. Y., 65. And it served the summons by leaving a does not appear that plaintiffs' copy of it at defendant's usual debt, or if any how much of it, place of abode in that county, in was contracted prior to said trans- presence of defendant's daughter, fer. If they were not sold till after she being one of defendant's famthat date, the debt contracted for ily, and of suitable age and disthem was, as against other credit cretion, and that he informed her

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