« AnteriorContinuar »
substantially correct. Besides the riding with her husband and two court had previously charged fully other ladies. She left no children on the subject in the form then or father or brothers and sisters, requested by defendant.
but left a mother. While plaintiff The court was also asked to was upon the stand he was asked, charge that if the jury believed “Has your wife's mother any the evidence of three
three certain means or property ?” This was witnesses, naming them, plaintiff objected to generally, the objeccould not recover. This the court tion overruled and the answer was declined to do.
"No." Held, No error. 71 N. Y., 285. W. G. Tracy, for applt. Judgment affirmed.
Louis Marshall, for respt. Opinion by Merwin, J.; Hardin, Held, Error. If this evidence P. J., and Follett, J., concur. was material at all it was upon
the question of damages.
Under $ 1903, Code Civ. Pro., the damEVIDENCE.
ages recovered are exclusively N. Y. SUPREME COURT. GENERAL for the benefit of the decedent's TERM. FOURTH DEPT.
husband or wife and next of kin,"
and when collected are to be disJoseph D. Malonee, admr., respt., tributed by plaintiff “as if they v. The N. Y. C. & H. R. RR. Co., were unbequeathed assets left in applt.
his hands after payment of all Decided Oct., 1884.
debts and expenses of administra
tion.” By $ 1904 the damages are In an action by a husband, as administrator, to recover damages for the death of his
' compensation for the pecuniary wife, in a case where she left no survivors injuries resulting from the dece. but himself and her mother, evidence as to dent's death to the person or perthe means or property of the mother is ir
sons for whose benefit the action relevant and inadmissible. The erroneous admission of such evidence is is brought.” By $$ 1905, 1807, not cured by a charge to the jury to assess
the term next of kin” includes such damages as would pay plaintiff for all those entitled under the prohis actual pecuniary loss, without instruct visions of law relating to the dising the jury to disregard such evidence.
tribution of personal property to Appeal from judgment in favor share in the unbequeathed assets of plaintiff, entered on verdict, of a decedent after payment of and from order denying motion debts and expenses other than a for a new trial on the minutes. surviving husband or wife." In
Action to recover damages for the present case the mother of the the death of plaintiff's intestate deceased was not entitled to share caused as alleged by the negli- in the unbequeathed assets, 47 N. gence of defendant. The deceased, Y., 351 ; 11 Paige, 87, but the huswho was the wife of plaintiff, was band took the whole. The mother killed by a collision with a passing was, therefore, not next of kin train of defendant while she was within the meaning of the statute
and the action was not for her Judgment and order reversed,
The judge charged the jury to
TERM. FIFTH DEPT. ery should be in favor of plaintiff and next of kin. There was no Elizabeth M. Chapman, applt., direction to disregard the evidence v. The Village of
v. The Village of Silver Creek, as to the mother's means.
respt. Held, That the error in admit
Decided Oct., 1884. ting the evidence was not cured by the charge. In substance this Where snow eight inches deep had lain on the limited the recovery to the pecu
walk two weeks, and then thawed and
froze again, and the ice thus resulting conniary injuries resulting to plaintiff.
tinued nearly a week, and plaintiff slipped Still the evidence as to the pecu on it at night and was hurt, Held, That niary situation of the mother was the jury were warranted in finding the villeft in the case and there was no
lage authorities chargeable with notice, and
negligent. direction to disregard it, so that the jury when they came to fix the Appeal from County Court oramount of damages had the right der granting new trial. to think that this evidence was Defendant was re.incorporated material and to be borne in mind under the general act of 1870. by them in determining the pecu- Plaintiff sued for damages resultniary injury to the husband. In ing from a fall caused by defendthe charge, it is said, the pecuni- ant's alleged negligence, and she ary loss of plaintiff in this case is recovered a verdict. The place of confined almost exclusively to the the accident was in a remote part services of the wife. That does not of the village. A plank sidewalk take from the jury the idea that had been built there, when and by in determining as to such services whom does not appear. The evithey may consider the pecuniary dence justified the conclusion that situation of the mother. See 55 for two weeks prior to December N. Y., 579 ; 14 W. Dig., 58. 12th there had been snow on the
Also held, That the objection walk eight to ten inches deep; taken was available. A general that on December 12th the snow objection is sufficient if the evi. thawed, and was that night so dence in its essential nature is in frozen as to make ice on the walk competent, or if the ground though four to six inches thick in the stated could not have been obvia- centre, and sloping down to the ted. 70 N. Y., 34.
edges of the walk, and that it so
remained till the evening of De against a creditor who obtained judgment cember 18th, when the accident
shortly after the deed was made. occurred, it being then so dark Appeal from judgmenton Special that plaintiff could see but a few Term decision. feet from her, and that she had no Action to set aside a deed as previous knowledge of the con- fraudulent against creditors. Plain. dition of the walk.
tiff is a judgment creditor of G., George E. Towne, for applt. who made the deed to defendant Holt & Holt, for respt.
two days before plaintiff's judgHeld, That the trustees of de- ment. The deed was given subfendant were bound to keep the ject to two mortgages, and the walk in reasonable repair and con- grantee paid G. the difference bedition. 50 N. Y., 236; 51 id., 506, tween the purchase price and the 513; 3 Hun, 508; 75 N. Y., 45 ; 44 united amount of the mortgages Barb., 385; 61 N. Y., 506 ; 69 id., and G.'s debt to defendant. There 166; 28 Hun, 110; 13 W. Dig., 551; had been some indefinite talk of a 49 Barb., 580. It was not impor-sale between defendant and G. betant who made the walk. 94 N. | fore, and a few days before the Y, 27.
deed was made G. asked defendant The jury were warranted in find what he would give for the land, ing defendant chargeable with and declined the offer then made. notice, and the verdict was not Next day G. told defendant plainerroneous. 45 N. Y., 129; 46 id., tiff had sued him and would soon 194; 61 id., 506; 43 How. Pr., 366; take judgment. On the day the 76 N. Y., 329.
deed was given G. accepted deOrder reversed.
fendant's offer and delivered the Opinion by Bradley, J.; Smith, deed, which was at once recorded. P. J., Barker and Haight, JJ., G. testified that he told defendant concur.
that he would have to do some-
ment, and he stated his purpose to CONVEYANCE. FRAUD.
make an assignment, and agreed N. Y. SUPREME COURT. GENERAL to prefer defendant's debt. But TERM. FIFTH DEPT.
defendant advised him to sell in
stead, and offered, if he would sell Henry Nugent, respt., v. Eli B.
to him, to let him stay and work Jacobs, impld., applt.
the premises five years, and said Decided Oct., 1884.
he would deed it back any time G.
wanted to redeem it. Gi's wife Where the evidence warranted the finding that the grantee took the deed not merely testified to the same facts. Deto cancel the grantor's debt to him, but fendant denied that anything was also to delay other creditors, Held, No said about an assignment or about error to declare the deed fraudulent, and
his deeding back, and he testified that the deed cannot be treated as security for the debt due the grantee, or for the pur
to the good faith of the transacchase money advanced by the latter as ' tion, and contradicted G.'s evi.
dence in other particulars. The
Decided Nov. 25, 1884. court found the deed fraudulent
The provisions of the constitution and the and void as to plaintiff, and di laws of the New York Stock Exchange are rected judgment that the lien of obligatory upon its members as a contract. plaintiff's judgment is paramount The proceeds of the sale of a member's seat
cannot be appropriated to the payment of to the conveyance.
such debts as are, by the constitution and E. W. Gardner, for applt.
laws excluded from participating therein, Henry M. Field, for respt.
nor has the governing committee power to Held, No error.
admit a claim on such a debt. Although de
Reversing S. C., 14 W. Dig., 413. fendant had the right to take a deed from G. for the sole purpose
This action was brought by of securing his own debt, 61 N. plaintiff, as assignee of W., to Y., 626; 56 id., 621; 76 id., 213; 7 | recover from defendant $6,000, the Hun, 591; 14 id., 172; 30 id., 192; proceeds of W.'s seat in the New 48 Barb., 344; Wait Fr. Conv., 8 York Stock Exchange. 390; yet that rule must be limited peared that said Exchange was a to a sale solely to pay the debt voluntary association, organized and of property sufficient only to for the purpose of conducting and pay it. 26 Hun, 554. Such a con- regulating the business of dealing veyance is a valuable considera- in stocks in the city of New York ; tion. 19 N. Y., 417, 421; 7 Hun, that W. having failed, his seat 146, 148-9; 4 Abb. Dec., 314; 89 was sold under a rule of the conN. Y., 452. The notice of the stitution of said Exchange, which grantor's fraudulent intent to provides that “If any suspended bind the grantee must be actual. member fails to settle with his 79 N. Y., 102; 93 id., 118, 126. creditors within one year from the The evidence warrants the conclu- time of his suspension, his memsion that G. and defendant com- bership shall be disposed of * * * bined and intended to defraud and the proceeds paid pro rata plaintiff. The
The fraudulent deed to his creditors in the Stock Excannot be treated as security for change.' Claims not filed before the debt due to defendant or for a transfer of the right of memberthe money he advanced on the ship were excluded from participurchase so as to take priority pating in said proceeds, as was also over plaintiff's judgment. 87 N. any difference “growing out of a Y., 620.
claim on a put or call notified for Judgment affirmed, with costs. and reduced to a contract after
Opinion by Bradley, J.; Smith, failure.” Claims of members P. J., Barker and Haight, JJ., were filed and proved against W. concur.
amounting to more than the pro
ceeds of sale, all of which were on STOCK EXCHANGE.
“puts” and “calls” notified for
and reduced to a contract after N. Y. COURT OF APPEALS.
failure. Weston, applt., v. Ives, respt. James R. Marvin, for applt.
Robert Sewell, for respt.
concur, except Rapallo, J., abHeld, That plaintiff was entitled sent. to recover; that W., having assented to the appropriation of his
NEGLIGENCE. property in a particular way, and
N. Y. SUPREME COURT. GENERAL to the payment of certain debts to
TERM. FIFTH DEPT. the exclusion of others, by that assent only had defendant the Elizabeth Pierce, admrx., v. The power to convert his property into Rawson Mfg. Co. money, and no application can be
Decided Oct., 1884. made of it to which he has not in like manner assented. It was im
P, went to defendant's office to ask the supermaterial whether the contracts
intendent for work ; not finding him he
went into another room of the factory, and under which the claims were made
was there killed by a descending elevator. were valid or not.
Held, on suit by P.'s personal representaThe provisions of the constitu
tive, that it was error to leave the question tion and laws of the New York
to the jury whether deceased was lawfully
in the factory, and it was error to charge Stock Exchange are obligatory
the jury that deceased bad a
ht to look upon its members as a contract. for the superintendent wherever he could
Article 3 of the constitution of be found so long as he violated no estabthe Exchange vests governmental
lished rule of the company. control in the governing committee, Exceptions taken by defendant and gives it the power necessary,
at trial and ordered heard at Genand makes its decision final. Ar- eral Term in first instance. ticle 19 declares “ All debts, with Defendant makes farm impleout distinction, are binding upon ments.
ments. Its business office is on the members of the Exchange, and the ground floor of its factory the governing committee will take building, and opens directly on the cognizance of them upon com street. There are the engine-room, plaints properly made and pre- a machine shop and a wood-room sented. It is claimed that the
on the same floor, the last two decision of that committee admit- opening directly on the street. The ting the claims against W.to share elevator, which was operated in in the proceeds of the sale of his the building, had its landing on the seat is final.
floor of the wood-room, and the Held, Untenable; that said landing place was unguarded. committee could have no power Several days before the accident beyond that given by the contract, deceased had talked with the sunor admit a claim the constitution perintendent of the works about excluded by its terms.
getting work there, and the latter Judgment of General Term, af- promised to engage him as soon as firming judgment on verdict for certain material came, which was defendant, reversed and new trial expected soon. When first seen granted.
at the building on the day of the Opinion by Danforth, J. All accident deceased was in the en