Imágenes de páginas
PDF
EPUB
[ocr errors][merged small]

gine-room talking with the engi Opinion by Barker, J.; Smith,
neer. After that he was seen pass- P. J., Bradley and Corlett, JJ.,
ing from the street into the wood-concur.
room, and while he was passing
through that room the elevator de.

EVIDENCE.
scended and injured him fatally.
The elevator was in good order and N. Y. SUPREME Court. GENERAL
was operated with proper care.

TERM. FOURTH DEPT. The superintendent was in the

John N. Graville, respt., v. The building, but had no conversation N. Y. C. & H. R. RR. Co., applt. with deceased, and it was not proved that deceased inquired for

Decided Oct., 1884. bim. The evidence tended to show

Entries in a train sheet of a railroad company that on all the outer doors except

as to the passage of trains at a station other that of the office was printed “No than that at which it is kept are not adAdmittance.” The judge charged

missible against strangers unless verified by that if deceased applied at the

the station-man and telegraph operator at

the station in question. office for the superintendent to get work and did not find him he had Appeal from judgment in favor the right to go where he could find of plaintiff, entered on the report him, provided he did not infringe of a referee. any of defendant's rules, and that Action to recover the value of the question whether deceased was two horses which were drowned lawfully in the wood-room was a | in the Erie Canal, at Rome, on question of fact for the jury and August 8, 1875, by reason of the not of law,

negligence of the defendant in William E. Bonham, for deft. managing one of its trains. M. Rumsey Miller, for plff. It becoming necessary on the

Held, That whether deceased trial, according to defendant's was lawfully in the wood-room was claim, to show what freight trains a question of law to be ruled upon passed Rome eastward between 11 by the court and given to the jury and 12 o'clock of the night of as their guide, to be applied as August 7, 1875, the train sheet and they might find the facts, whether train record of that day, both kept there was an implied invitation to at Little Falls, were offered in deceased when on the premises in evidence. The train sheet shows search of work to enter the work the starting of all trains from De shops to find the superintendent. Witt and West Albany and when The deceased was not free to seek they pass the several stations bethe defendant everywhere, even tween. At Rome the station-man though there was no established times each train as it passes and rule as to that. See 10 Allen, 368; gives it and the number of the en41 N. Y., 525; 30 Hun, 596. gine to the telegraph operator at

New trial ordered, costs to abide Rome, who telegraphs it to Little event.

Falls, and it is there entered on Vol. 20.-No. 11b.

the train sheet. Neither the sta Still for aught that appears the tion-man nor operator at Rome witnesses necessary to verify the were called as witnesses nor their entries in question could have absence accounted for. The train been readily produced. More diffidespatcher at Little Falls de- culty in that regard would often scribed the manner in which the be experienced by banks or other sheet was kept there, but had no corporations and even by some knowledge of what occurred at firms. Rome. The referee excluded the The entries as to the times of the evidence offered.

passage of trains generally at D. M. K. Johnson, for applt.

Little Falls were not as such of

fered. It is at least doubtful M. D. Barnett, for respt.

whether they were sufficiently Held, No error; that the train proved, as the parties who made sheet, so far as the Rome entries the entries that night there did not were concerned, was not suffi verify them, except the entry as ciently proved. The same rule to one train, which was in fact applies to the train book. In received. Angell & Ames on Corp., § 679, Also held, That the opinion of the general rule is said to be that the witness P. as to whether or entries in corporation books of not the book was correct, or matters relating to any property whether the sheet was so correct or right claimed by them can never that he could tell what trains be evidence for them unless made passed at Rome, was properly ex. so by act of the Legislature. See cluded. He had already given all also 1 Greenl. Ev., $ 493; 45 N. H., his knowledge on the subject. 355; 63 Barb., 112. Entries with The witness R. was asked the out verification

do not affect following questions: Are you able strangers. Whart. Ev., § 662; to tell what stock trains passed Stark. Ev., 10 ed., 455; 59 Barb., Rome that night going east? State, 355. The rule stated in 7 Hun, if you know, what stock train did 612, would at least require the pass Rome the night of August verifying evidence of the Rome 7, 1875, going east, between 11 and station-man and operator or its 12? These questions were objected eqnivalent. 31 Hun, 241. See 75 to and excluded. N. Y., 440.

Held, No error. It was quite Furness v. Cope, 5 Bing., 114; 2 patent at that stage of the case M. & P., 197, distinguished.

that the witness had no personal The argument of defendant's knowledge on the subject. It was counsel seems to be that by reason not claimed that he had, and very of the extent of the business of evidently he was called upon to defendant and the difficulty of speak from the entries in the train furnishing strictly verifying evi- sheet and book. That being imdence the rule ought to be re proper the exclusion did not inlaxed in the present instance, jure defendant.

Judgment affirmed.

conveyance to B. “or his assigns Opinion by Merwin, J.; Har during his lifetime, or to his attordin, P.J., and Follett, J., concur. ney, agent, * * * heirs, legatees,

executors or administrators after his

decease," forty dollars for each lot DEEDS.

sold by the cemetery for a burialN. Y. COURT OF APPEALS. place, the sales for such purposes

It Bennett et al., respts., v. Col. being limited to a fixed rate.

was also provided that B. should ver, applt.

be " entitled to the grass, wood, Decided Nov. 25, 1884.

timber and other procluce of the Plaintiffs' ancestor, B., sold certain land to a

soil of all parts of said land which cemetery association by deed, which pro- may remain unsold in conformity vided that the grantee should pay to B. a to the conditions of this deed, until certain sum for each lot sold by it for a all such lands shall be sold as burial-place; that B. should be entitled to

aforesaid and have interments the grass and products of all parts which remain unsold until all the lots were sold and

therein." It was also provided had interments therein, and that in case the that in case the cemetery should grantee should fail to fulfil any of the premises on which the land was granted, the which this conveyance is given the

not fulfil “any of the premises on right of soil of all lots without interments should revert to B., his heirs, &c. No lots right of soil of all lots without were sold and B. and his heirs remained in interments shall revert to the party possession until dispossessed by defendant, of the first part, his heirs, assigns, claiming under a deed executed on sale under execution against the association. Hea, executors, administrators or legaThat no title passed to the grantee under

tees, but which reversion shall not this deed to which judgments against it prejudice the right of the cemetery could attach; that the deed was not absolute

or corporation to sell said land * ** but conditional.

in conformity to said premises ;"? This was an action of ejectment. then follows this clause: “to have It appeared that in 1825 one B. and to hold the above * * described became the owner of certain prem- premises, with the appurtenances, ises. In January, 1853, he joined unto the said party of the second with the trustees of Washington part and assigns forever, in conCemetery, a duly organized corpo- formity to the premises hereinberation, in the execution of an fore stated.” Then follows, among agreement, whereby, “in consid- others, a covenant by B. “that the eration of the sum of ten dollars said party of the second part and (and the premises hereinafter assigns shall * quietly have, stated),” B. granted, sold and con- hold, use, occupy, possess and enveyed to said cemetery and its joy” the said land “subject and in assigns forever said land. The conformity to the premises herein“premises " referred to in the con before stated and agreed upon.” sideration clause were declared to No lots were sold by the cemetery be that the cemetery should pay and none of the land was used for half-yearly from the date of the cemetery purposes. B. continued

in possession of the land, using it Opinion by Danforth, J. All for agricultural purposes until his concur, except Rapallo, J., absent. death in 1863 ; since then plaintiffs, who are his only children and heirs at law, continued in posses

STATUTE OF FRAUDS. sion of said land and used the same N. Y. COURT OF APPEALS. for agricultural purposes until March 27, 1880, when defendant

Drake, applt., v. Seaman et al., took possession of said land and respts. excluded plaintiffs therefrom, Decided Nov. 25, 1884. claiming under a deed executed to

A note or memorandum of an agreement to him on a sale under certain execu be valid under the statute of frauds must tions against said cemetery corpo show on its face what the whole agreement ration.

is so far as the same is executory and re

mains to be performed and rests upon unJohn H. Bergen, for applt.

fulfilled promises. Thomas E. Pearsall, for respt. Defendants agreed to hire plaintiff as sales

Held, Plaintiffs were entitled man for three years and to pay him accordrecover ; that although the agree ing to a writing signed by them which ment contained express and tech

stated the salary to be paid, but said nothing

as to the hiring. Held, That the memorannical terms by which the fee of the

dum was not sufficient and that the conland was granted to the cemetery tract, being by parol for more than one association, as on looking at the

year, was void. whole instrument it appears that Affirming S. C., 14 W. Dig., 374. it was not the intention of the This action was brought to regrantor that it should be absolute, cover damages for an alleged but merely conditional, and as the breach of a contract of employ. conditions are not subsequent but ment. It appeared that defend. upon their performance the grant. ants agreed to hire plaintiff as ee's right depends, and as there salesman for three years and to has been no performance on the pay him according to a writing part of the grantee, it had no in- signed by them in these words: terest in the property to which “ The understanding with Mr. judgments against it could attach, Drake is as follows : $2,000 for the and consequently none that could first year; $2,500 for the second be taken on execution.

year, sure; provided the increase The construction of a written in- sales shall warrant it he is to have strument should be as near to the $3,000; third year in proportion minds and apparent intent of the to business, as above." Plaintiff parties as possible, collected from remained in defendants' employ the whole instrument. 1 N. Y., for about two years, when they 96; 1 R. S., Edms. ed., 699, $ 2. refused to employ or pay him. He

Order of General Term, revers- tendered his services, and remained ing judgment for defendant affirm- ready and willing to perform them ed, and judgment absolute on stip- during the remaining year of the ulation.

contract.

M. M. Waters, for applt. man, 93 N. Y., 273, distinguished

and limited. Samuel Hand, for respts.

Order of General Term, reversHeld, That plaintiff was not en- ing judgment for plaintiff, affirmed, titled to recover; that the memo- and judgment absolute on stipularardum signed by defendants was tion. not sufficient under the statute of Opinion by Finch, J. All confrauds; that even if it were con. cur, except Rapallo, J., absent. ceded that the consideration might be wholly omitted from it, it would still be requisite that it should

COSTS. contain all the essential and ma

N.Y. SUPREME COURT. GENERAL terial elements of defendants own

TERM. FIFTH DEPT. agreement; as the memorandum omitted the very condition upon Susan E. Hyland, respt., v. John which they were to pay the sub- H. Carpenter et al., exrs., applts. ject-matter of the agreement was

Decided Oct., 1884. left out, and as the contract under which plaintiff was employed was Where no item of a contested claim against an by parol and not to be performed

estate is rejected and the amount actually

due depends upon the mode of computawithin one year it was void. 5

tion, or whether the claim bears interest, or East, 10; 4B. & Ald., 695; 3 from what time, Held, That an order for Johns., 210 ; 13 id., 236 ; 10 costs and disbursements to claimant on the Wend., 251 ; 13 id., 114; 25 N.

ground of unreasonable resistance is not Y., 159; 6 Abb., N. S., 399; 10 Hun, 343; 65 N. Y., 484 ; 68 id., Plaintiff held against testator's 604; 72 id., 595.

estate a note made payable to The amendment of the statute of plaintiff after

after testator's death. frauds in 1863, Laws 1863, Chap The claim was not allowed and 464, which declares certain con was referred, and the referee sustracts void, unless in writing, and tained the validity of the note. which struck out the clause of An order was thereupon entered the Revised Statutes requiring the at Special Term allowing plaintiff consideration to be expressed, her disbursements and costs, on cannot be understood to destroy the ground that the action was unand annal the requirement that reasonably resisted and neglected. the note or memorandum must From that part of the order and contain all the substantial and the judgment of Special Term material terms of the contract be allowing costs and disbursements tween the parties. It must show the executors appeal. Notice for on its face what the whole agree presentation of claims was duly ment is so far as the same is exec-published by the executors. utory and remains to be performed Plaintiff gave formal notice of her and rests upon unfulfilled promises. claim. Her moving affidavit states

Evansville Nat. Bk. v. Kauff-l that within six months after the

error.

« AnteriorContinuar »