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highway for the convenience of could be compelled at the instance the lot and for the use and benefit of the owners of the lot. 22 Beav., of the purchaser, his assigns and 299 ; 26 N. Y., 105 ; 61 id., 463. the public. The deed described It was claimed that the right of the premises conveyed by metes way did not pass by the converand bounds, and made no reference ance to plaintiff because it was to any street or to any map. Plainnot referred to in her deed, and the tiff's grantor, relying upon such word appurtenances was not used. representations, erected a dwelling Held, Untenable; that the way house near the southerly bounds

was an apparent easement at the of his lot, as was contemplated time the deed was executed, and and understood between the par- if it was then enjoyed by right by ties during the negotiations for plaintiff's grantor as an appurtethe purchase. It further appeared nance to the land it passed by the that defendant sold lots to other conveyance of the lot by metes persons abutting on said strip, and bounds, although not mentionwith similar representations as ed, and although the word "appurwere made to plaintiff's grantor. tenances"

tenances” was not used. 18 X. In 1866 or 1867 defendant opened Y., 48; 2 Washb. on Real Prop.. said space as a street and the same 279. was thereafter used and enjoyed There is no rule of law which by plaintiff's grantor and his fami-prevents a party from performing ly anıl by the public as an open a promise which could not be and public street until 1875, when legally enforced, or which will perdefendant obstructed the entrance mit a party morally but not legally thereto aud threatened to wholly bound to do a certain act or thing close the same.

upon the act or thing being done J. E. Dewey, for applt.

to recall it to the prejudice of the R. B. Fish, for respt.

promisee on the plea that the proHeld, That defendant's promise mise while still executory could to open the street, standing alone, not, by reason of some technical would, if unexecuted, be incapable rule of law, have been enforced by of enforcement, but defendant, by action. opening the street in pursuance of Judgment of General Term, afhis agreement, appropriated the firming judgment for defendant, space as a way appurtenant to the reversed and new trial granted. premises, and he could not subse.

Opinion by Andrews, J. All quently recall the dedication. To concur, except Rapallo, J., abpermit him to do so would operate sent. as a fraud upon his grantee and subsequent purchasers. The court

CONTRACT. PARTIES. will enforce their rights by injunc

N. Y. COURT OF APPEALS. tion without requiring them to proceed for specific performance, Wheat et al., respts., v. Rice assuming that

that a

formal grant let al., applts.

Decided Nov. 25, 1884.

from by creditors of S., R. & Co., In an action to reform a contract by cancel and the appeal was dismissed. ling a portion by which the plaintiffs were Marcenus H. Briggs, for applts. made members of a partnership and agreed John Callister, for respts. to pay the partnership debts, creditors of

Held, No error; that none of the the firm who are not parties to the contract are not proper parties to the action, creditors could maintain an action and an appeal by them from judgment under the agreement, as no one of therein will not lie.

them could show that the promise Affirming S. C., 15 W. Dig., 104.

was intended for his benefit or covThis action was brought for the ered any part of his debt. Whether reformation of a contract executed it would benefit him or not deby plaintiffs and defendant S., pended wholly on the undisclosed which it was claimed contained option of the plaintiffs down to two clauses which were inserted the moment at which they were by mistake. At the time of the required to pay “one-quarter of execution of the contract S. was a the indebtedness of the firm." member of the firm of S., R. & Co., Lawrence v. Fox, 20 N. Y., 268, which firm was indebted to several distinguished and limited. creditors, and continuing its busi Barlow v. Myers, 64 N. Y., 41. ness thereafter contracted other

An acceptance or adoption by and additional debts to the same the creditors of the plaintiff's and other persons.

The written promise, by word or act, was esagreement stipulated that S. sold sential. 41 N. Y., 206; 47 id., to plaintiffs the equal undivided 242; 69 id., 285 ; 78 id., 151 ; 7 one-quarter of a mill and quarries Cush., 337. As to what it should and one-quarter of all the personal be to enable them to interfere and property of S., R. & Co., and be heard in an action like the plaintiffs agreed to pay to S. $3,000 present, quære. and to assume and pay one-quar- Judgment of General Term, dister of the incumbrances on the missing appeal, affirmed. property

and one-quar

Opinion by Finch, J. All conter of all the indebtedness of the

cur. firm

as the same may become due and payable.” It was

CRIMINAL LAW. also stipulated that by reason of said purchase plaintiffs became n. Y. SUPREME COURT. GENERAL members of the firm of S., R. &

TERM. THIRD DEPT. Co. to the amount of one-quarter of all its personal property “and

The People v. Charles Osterliable to pay the indebtedness of hout. the said firm in the same manner Decided Nov., 1884. and to the same extent as if they had been members of the original Upon the trial of an indictment the prisoner

was not formally arraigned, nor did he firm." A judgment was rendered

formally plead. He was present with counfor plaintiffs, which was appealed sel at the trial, made no objection to the


failure to arraign, nor did he request to | insanity is not shown nor any of plead. After verdict these objections were

the causes in arrest of judgment first raised by a motion in arrest of judg: stated in § 467. Nor does § 465 ment. Held, That they were untenable, no substantial right of the prisoner having been apply, as none of the reasons for a

away, and that the question was not new trial there stated exist here. a proper ground for a motion in arrest of Under $ 517 we can review any injudgment.

termediate order forming part of Appeal from a judgment con the judgment roll, and by S485 victing defendant of assault in the the roll may contain the bill of exfirst degree. The grounds upon ceptions. Examining this we find which a reversal is sought are that the only alleged error to be a redefendant was never arraigned fusal to arrest the judgment after upon the indictment and that he trial, and, as said, the grounds upon had not pleaded to the charge nor which judgment is arrested are refused to plead. The prisoner given in § 467. But defendant was present with his counsel

his counsel urges that the appeal brings up the throughout the trial. He did not roll, and that this should contain object that he had not been ar the minutes of the plea, $ 485; that raigned nor did he ask to plead. it does not contain the plea nor This point was first made after show that defendant was arraigned. verdict, and the day following the That is true. We come then to the trial, and was then made by a mo- question, Must the Court reverse tion in arrest of judgment. The a judgment of conviction on a vermotion was denied.

dict when the judgment roll fails Denio & Gambell, for deft. to show an arraignment or plea, L. W. Rhodes, for people. while the bill of exceptions shows

Held, Untenable. No injury has that the prisoner was present with been done the prisoner. No plea counsel and had a fair trial! We has been rejected and no evidence think the spirit of the Code does offered excluded. The defect is not favor this technicality. technical, and such defects are not Judgment and conviction afto be considered. Code Crim. Pro., firmed. $ 542. The prisoner may waive an Opinion by Learned, P. J.; arraignment, 79 N. Y., 424, and he | Bockes and Landon, JJ., concur. need not plead unless he desires to do so.

Code Crim. Pro., S 342. NEGLIGENCE. EVIDENCE This matter does not come before us properly on a motion in arrest N. Y. SUPREME COURT. GENERAL

TERM. FIFTI DEPT. of judgment, the grounds of which

defects in the indictment. Calvin Amadon, applt., v. Her$ 467.

An omission to arraign man V. Ingersoll, respt. could not, of course, be one of the

Decided Oct., 1884. defects in an indictment. Cause

A highway commissioner is bound to use reaagainst the judgment may be

sonable care and diligence to keep highway shown before sentence, S 481, but

bridges in safe condition.

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Plaintiff was damaged by the falling of a also been present and assisting, bridge. Witnesses who helped repair the

“Did you consider the stringers bridge before the accident were allowed,

at that time suitable and sound against plaintiff's general objection, to state their opinions as to the sufficiency of for that purpose?'

for that purpose?” He asked the the stringers of the bridge. Held, No defendant,

defendant, “ Did you consider

these stringers sound and suitable Appeal from Special Term order for that bridge ?" Plaintiff . obdenying motion for new trial. jected to these questions respect

Action for damages caused by ively, without stating any ground the falling of a highway bridge, of the objection. The objections resulting from alleged negligence were overruled, and the witnesses of defendant, who was highway all answered in the affirmative. commissioner. In May, 1879, Henderson & Wentworth, for plaintiff drove on to the bridge a applt. team of four horses drawing a Allen & Thrasher, for respt. wagon loaded with a steam boiler, Held, It must be assumed that weighing 6,000 pounds, and some the witnesses were qualified to of the stringers supporting the give their opinions if such evidence bridge gave way, causing the dam

was competent. 70 N. Y., 73; 79 ages complained of. In Septem- id., 255. ber, 1878, defendant had examined The evidence is within the role the stringers and had put in new permitting opinions of experts. braces and strengthened the 12 Hun, 274; 9 Bosw., 558; 27 N. bridge. Plaintiff gave evidence Y., 234, 241; 44 J. & S., 369; 23 N. that some of the stringers were Y., 42; 3 Hun, 523 ; 9 id., 133; 12 then impaired by dry rot. The id., 274; 26 id., 250; 26 N. Y., 426; evidence for defendant tended to 16 id., 173; 68 id., 547; 95 U. S., show that when the bridge was re 297; 85 N. Y., 413. paired the stringers were tested by Hover v. Barkhoof, 44 N. Y., cutting and boring into them; that 113, distinguished. while they were not perfectly The question of competency can sound, they were not rotten; that not be raised upon the exceptions they were apparently sound; that taken to the admission of the testi. some of them on top, where the mony. 63 Barb., 261; 57 N. Y., planks rested, for an inch in depth, 651; 63 id., 621; 38 id., 184; 81 id., were • little dozy, powder 242; 85 id., 414; 77 id., 182. posted, powder rot or dry rot,'' See 21 Hun, 654; 6 N. Y., 168; but beyond that sound. Defend 90 id., 664. ant's counsel asked one witness The exceptions to refusals to who had assisted defendant in charge and to the charge as made making the examination and re are groundless, for the charge pairs, “Did you, from your ex properly left it to the jury to amination of the bridge stringers, say whether defendant exercised consider them sufficient?" He proper care--such care and cauasked another witness who had tion as the judgment of prudent


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men would and should exercise tor and assignee, is entitled to
under like circumstances. 14 Hun, have paid to him."
177; 46 N. Y., 194; 2 Den., 433; Sophia Pierce died March 9,
30 How., 222; 51 N. Y., 497; 47 id., 1877, leaving a will, of which said
639; 27 id., 234; 16 J. & S., 528. Burrows is executor. The will
Order affirmed.

gave one-fourth of testatrix' estate
Opinion by Bradley, J.; Smith, to each of her three children, Je-
P. J., and Barker, J., concur; rome, Andrew J., and Sophia L.,
Haight, J., not sitting.

and the remaining fourth to the
children of testatrix' deceased son,

Charles L. At testatrix' death
PARTNERSHIP. LEGACY. said Andrew J. owed her, on his

individual notes, a sum amountN. Y. SUPREME Court. GENERAL ing, with interest to January 22, TERM. FIFTH DEPT.

1884, to $2,240.69. At testatrix Peter J. Ferris, applt., v. Ros. death said Jerome and Andrew well L. Burrows, exr,. et al., respts. J. were in business, under the

firm name of Jerome, Pierce & Co. Decided Oct., 1884.

The firm was dissolved by JeIn ascertaining the amount to be paid to the rome's death, January 3, 1878. At

assignee of all the interest of a legatee un. testatrix' death said firm owed her der a will, the claim of the executor against

on a note, with interest to April the legatee on a note made to the testatrix by a partnership of which said legatee is 16, 1877, $6,229.56. On May 18, survivor may be set-off or retained against 1878, said Andrew J., as surviving the legacy, the note, at the time of the as partner, being insolvent, made an signment, being in the executor's hands assignment for the benefit of credand past due.

itors. After the discharge of he Appeal from part of decree of assignee there remained a balance surrogate's court, in the matter unpaid to said executor of the inof the settlement of the accounts debtedness due on said partnerof said Roswell L. Burrows, ex- ship note, with interest to January ecutor.

22, 1884, $3,025.50. Sophia Pierce, The part of the decree appealed at her death, and Peter J. Ferris, from is as follows : “It is ordered, with nine others, were sureties on adjudged and decreed that the a bond of said Andrew J. Since said claim of Peter J. Ferris, as to then said Ferris and the other the said sum of $3,025.50, be not bondsmen have been obliged to allowed, and that said sum be off- pay on said bond a sum amountset against and deducted from the ing, with interest to January 22, share of Andrew J. Pierce, as 1884, to $6,567.50. Said Ferris legatee under said will, leaving the has paid the whole of said sum, balance of said share, amounting and has an assignment of all to $1,155.53, which it is hereby claims of the other bondsmen. ordered and adjudged that the The contributory share of Sophia said Peter J. Ferris, as such credi- | Pierce's estate has been decreed

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