Imágenes de páginas

Opinion by Learned, P. J.; at the proper angle to prevent Bockes, J., concurs; Landon, J., slides, and these slopes were made not acting.

on private property. Drains were laid crosswise the street and on

either side projected into private ASSESSMENTS.

property. About one-third of the N. Y. SUPREME COURT. GENERAL filling, about one-eighth of the TERM. THIRD DEPT.

excavating, and about four

sevenths of the drains were out Margaret Moore, exrx., v. The

side of the 66-foot strip taken by City of Albariy.

the city. The city took title in Decided Nov., 1834.

1876 to the strip, under Ch. 77,

Laws of 1870, as awarded by Ch. A city took title to a strip of land for a street. The street as laid out passed through hills and 302, Laws of 1872, and was thereover ravines. In making this street, where by authorized to acquire title to it passed through hills, the contractor made the land, with the appurtenances, slopes on adjacent private property at a

for the purpose of laying out the proper angle to prevent slides, and where the street crossed ravines the fillings were

street. There was also an unauthormade in part on private property, in order ized change of grade by which to secure the established width at grade. plaintiff claims he was damaged The adjacent owners encroached upon ac

in a small amount. Plaintiff's quiesced in this construction. Held, That one assessed for the improvement but

testator saw the work in progress whose lands were not invaded and who had and appeared by counsel before paid the assessment under protest could the board of apportionment when not recover the sum paid.

owners were heard as to the An assessment cannot be declared valid in part and plaintiff be given judgment for

manner in which the cost of the another part declared void.

improvement should be assessed. It seems that in such a case the city would not Afterwards and in 1877 he paid

be liable even to an adjacent owner for his assessment, but under protest. cuts and fills made upon his land.

In 1881 one Clowery, upon whose Plaintiff seeks to recover an a: land among others the drains and sessment of $2,164.62 paid by her fillings had been extended and testator for excavating, filling and deposited, obtained a judgment forming a street. The line ran against the city vacating the asover land hilly, irregular and cut sessment as to his lands. This by ravines, and this made different judgment stands. Thereafter Ch. grades necessary. The width of the 459, Laws of 1881, was passed, street was sixty-six feet. To make confirming the assessment. Uuthe surface that width at the grade der this act Clowery paid a part of through the ravines large quan- the original assessment. The case tities of earth were deposited upon was submitted under Code, $ 1279. lands of adjacent owners, which F. M. Dana, for plff. had not been taken by the city. S. W. Rosendale, for deft. To make the surface that width Held, That plaintiff could not through hills the hills were sloped recover. His lands are not touched

by the excavating and filling or

the 66 feet and for change of by the drains. If it were nec- grade.

grade. We do not think this adessary to pass upon the question missible. Plaintiff's argument we should be of opinion that the must rest on the ground that the city had a right without compen- making of these slopes and fillsation to cut away the slopes ings was unlawful and that the where the street ran through a adjacent owners may therefore rehill, even though this cutting was store their lands to the original on private property, 4 N. Y., condition; that the city cannot 195; 20 How., U. S., 135; 2 Dillon retain the structure for which asMun. Corp., $ 782, note, and that sessment has been laid. If this be where the street passed over a so then testator could not be ravine

the city might without required to pay any part of the being liable in damages fill so assessment. An incomplete street that the street was 66 feet wide at blocked up and torn down by the grade, even though the filling pro- lawful action of adjacent owners jected on either side upon private is not a thing for which an assesproperty. See Cooley Cons. Lim., ment could be made. We do not 251. But the question here is not think there is any rule justifying whether the city is liable in dam- a division of an assessment. ages to an adjacent owner. It is

Judgment for defendants. whether plaintiff's testator ac Opinion of Learned, P. J.; quired through the proceedings a Landon, J., concurs; Bockes, J., right to a street graded according dissents and gives judgment to to the contract. The street exists plaintiff for $690.73. and the grading and cuttings have not been objected to by the adjacent owners.

PARTNERSHIP. INSPECTION. There has been an acquiescence by the latter for some N. Y. SUPREME COURT. GENERAL time. We do not think they

TERM. FIFTH DEPT. could now remove the drains or fillings even if they could recover

Sylvia M. Newman, admrx., v. damages ; and we doubt whether Henry L. Newman, adir., et al. these adjacent owners could

Decided Oct., 1884. show damages. As to the drains

The administrator of a deceased partner is enthey are not drains laid through

litled to a discovery and inspection of part. private property. They are trans nership books, etc., with leave to take verse, laid necessarily at the coples, for the purpose of framing a combottom of the filling, are a part

plaint for an accounting and settlement of

the partnership affairs, notwithstanding the of it, and of course are longer

article of agreement provide that the surthan 66 feet. Plaintiff asks to re vivors should carry on the business until cover, if not the whole amount, at the expiration of the time limited for the least certain amounts, $690.73,

existence of partnership, and that all the what he was charged, proportion

property should remain and continue in the

business ; nor is it necessary to aver that ately, for filling and drain beyond the books contain entries showing any in.

debtedness to the deceased or show any she has no means of knowledge violation of the partnership agreement or

except from the books themselves; disclose any matters in respect to which a discovery is sought.

that no complaint has been drawn If a co-administrator, being also a surviving for want of the necessary informapartner, refuses to join in such an action tion as to the amount of the in. he may be made a defendant both as ad- debtedness to the deceased or of ministrator and individually.

the amount of indebtedness of the Appeal from order granting a members to the firm, if any, or of discovery and inspection of part- the condition of the real and pernership books, &c.

sonal property or the amount The petition showed that plain thereof; that a discovery and intiff was the widow of Leroy New- spection is necessary to enable her man and administratrix, and attorney to prepare the complaint, Henry L. Newman the administra- as she is advised, &c.; that the tor of his estate ; that said Henry defendant Henry L. refused, as L. and the other defendants were such administrator, to join with the surviving members of a co-part- plaintiff in an action for dissolution nership existing between them and of the partnership, for an accountdeceased ; that said firm was in- ing, etc. debted to deceased in the sum of Plaintiff's attorneys made affi$40,000, as petitioner was informed davit as to the necessity of this inand believes (stating the sources of formation to enable them to draw her information); that by the arti- the complaint, and as to defendcles of agreement true books of ants' refusal to permit them to account should be kept, wherein inspect the books, &c. each partner should enter all sums Upon a rule to show cause the by him received, paid out, or ex. affidavit of Henry L. stated that pended in and about the business, the firm kept true and correct and all matters pertaining thereto; books; that they were and always that they should be used in com had been open to an inspection of mon, so that each might have every member; that within one access thereto without interruption year after Leroy's death defendant or hindrance of the other; and made a just and true inventory of that once in each year they should all the property, and made a staterender a perfect and just account ment showing the exact amount of of all the profits, &c., made, and the increase of the property and of all losses by either of them sus- the amount of profits of the busitained, and also of all receipts, ness as accurately as the same payments and disbursements ; that could be ascertained, and delivered said surviving partners have not the same to plaintiff ; that they fully kept and performed said paid to plaintiff the share of Leagreements; that defendants re- roy's profits for the year subse. fused to allow plaintiff to examine quent to his death, under the artithe books or give her any informa- cles of copartnership, and that tion as to their contents, and that nothing whatever was due and

owing his estate; that by the arti

was proper. The plaintiff, as ad. cles it was agreed that in case of ministratrix of a deceased partner, the death of a member previous to claims the firm to be indebted to the time limited for the termina- her in a large sum, which the surtion of the partnership it should viving partners deny. There is but nevertheless continue for said term, one way in which the fact, if it and all the property should con-exists, can be proved : that is by tinue and remain in the business the partnership books.

By the notwithstanding, and the business articles the deceased partner had should be carried on by the sur- the right to examine and consult vivors for and during the term them, to ascertain the true state of specified.

the accounts. They were in part Defendants contended that the his property upon his decease, his petition was fatally defective in administratrix succeeding to that not stating that the books, &c., right, and is equally entitled to an contained any entries showing any examination of the books. She is irdebtedness to deceased, or of dependent upon them for her any matters in respect to which a proof, and is entitled to examine discovery is sought, Rule 15 ; that them for the purpose of obtaining the petition should state in what it, or to vary the accounts made particulars the partnership articles out by the firm if they shall prove have been violated, and that the to be incorrect. The rule on this books contain entries showing subject is very broad, and necessuch violation, and show what in. sarily must be so as to partnership formation in respect thereto is re- books, when the dispute is between quired ; that in view of the arti. different members of the firm or cles providing for continuance of the survivors and the representathe copartnership, and vesting in tives of a deceased partner. 12 the survivors possession and con- Hun, 121. The cases relied upon trol of the property, &c., plaintiff by appellant. 44 Barb., 39 ; S. C. most show facts from which the 19 Abb., 111; 65 How., 420; 6 court would be warranted in find. Duer, 695 ; 55 How., 351 ; 26 id., ing that there are reasonable 177; 25 id., 522 ; 17 id., 480 ; 13 grounds for dissolution ; that id., 425 ; 18 id., 519, relate to a very plaintiff's co-administrator has all different class of actions. the information desired ; that de Held also, As the defendant adfendant administrator must be ministrator has interests adverse joined as co-plaintiff to maintain to plaintiff by being also a surthe suit.

viving partner, and in such capacHumphrey & Lockwood, for ity unites with the others in applts.

withholding the buoks from her, Brundage & Shipman, for respt. and refuses to join with her as

Held, That an order granting a plaintiff, he was properly made a discovery and inspection of the defendant. books, with leave to take copies, Order affirmed on opinion of

Daniels, J., . at Special Term ; ) ground, without any other fastenSmith, P. J., Barker, Bradley ing than that of gravity. The enand Corlett, JJ., concur.

gine could be removed from the building on the trucks without

injury thereto. At the time of FIXTURES.

purchasing the engine P. gave a N. Y. SUPREME COURT. GENERAL

chattel mortgage on, it to secure TERM. FIFTH DEPT.

the purchase price, which he after

ward paid. In 1878 and 1881 be William H. Hart, respt., v. placed the chattel mortgages, George Sheldon, applt.

under which plaintiff claims, upon Decided Oct., 1884.

the engine and boiler and other

machinery in the building. The The question whether a boiler and an engine trial judge ruled as matter of law

in a factory, resting upon trucks so they that the engine and boiler were not could be drawn out of the building without injury thereto, is a fixture depends upon fixtures, and that plaintiff was enthe intention of the proprietor who placed titled to recover their value. them there ; and the question of intent is for the jury.

W. L. Sessions, for applt. Appeal from judgment and order

C. D. Murray, for respt. denying new trial.

Held, That the engine and boiler Action for conversion of certain was affixed and attached to the machinery, including a boiler and soil, so that they became part of engine, used in a tub factory. In the freehold, if it was the inten1872 one W. bought the premises, tion of the owner of the land, at on which was then a tannery, and the time he put the same on the converted the buildings into a tub premises, to make a permanent factory, and put in machinery run improvement to the freehold with by steam. In 1875 W. sold the a view of adding to its value and premises and machinery to one to propel the machinery used P., who continued the business and therein; and the question of inassumed payment of a real estate tent was for the jury. The evimortgage then covering the prem- dence was sufficient to sustain a ises, under which this defendant finding by the jury that it was P.'s claims the machinery in suit. In intention to affix the engine and 1876 P. replaced the old engine make it part of the realty. See by the one in suit and used it 1 Washb. Real Prop., 17: 66 N. there until foreclosure of the real Y., 495; 12 id., 170: 53 id., 377; 48 estate mortgage in 1881, when de- id., 278; 40 id., 287; 4 Metc., 306; fendant purchased the premises. 10 Cal., 258; 28 Vt., 428; 34 id., The boiler and engine were of six 220; 35 id., 317; 30 id., 443; 2 horse-power, combined, and rest. Watts & Serg., 116; id., 390. ing on its own frame, standing on Judgment and order reversed wheels six inches in diameter, and new trial granted, costs to which rested directly the abide event.

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