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pany, authorized by Ch. 492, Laws whom this award belongs, whether of 1860, and the second section of to plaintiff or the Bushes. that act says that all the provisions Again, it is provided by $ 7 of of Ch. 739, Laws of 1857, are made the general act that an assessment applicable to this company. This shall be made when the amount of latteract is the general law relating a loss shall have been ascertained to town insurance companies. which exceeds in amount the cash Plaintiff is not a member of the funds of the company.

It does company, but bought of

one not appear here that the loss does Church, a member, a mortgage exceed the cash funds. Hence the upon the premises given by parties duty to make the assessment has named Bush, also members. The not devolved upon the president, mortgage was secured by insurance much less upon the directors. in the company. After the loss

Another point arises under $ 6. occurred proceedings were taken It is claimed that the action of the under $ 6 of the general act; the committee of reference appointed directors were convened at the in- by the county judge is final and stance of plaintiff, a committee was disposes of all the questions appointed to ascertain the amount arising. We think not. Notwithof loss, and they passed a resolu- standing its language we think the tion not to pay it. The Bushes ap- section, read with others, only pealed to the county judge, who means that the action of the comappointed a committee which mittee is final as to the amount of finally made an award in favor of loss. The other construction, said Bushes. This award was which is not absolutely necessary, served on defendants with a notice would take away a jury trial and that plaintiff claimed the award as preclude any defence by the comassignee of the mortgage. Defend- pany. This can hardly have been ants refused to pay the award, the the intention of the legislature. Bushes also claiming it. This ac Judgment affirmed, with costs. tion is brought under & 9 of the Opinion by Learned, P. J.: general act, declaring the directors Landon and Fish, JJ., concur. personally liable when they wil. fully neglect or refuse to perform the duties imposed npon them by CIVIL DAMAGE ACT. EVI. the act; the refusal to pay plain

DENCE. tiff is deemed such a wilful neglect,

N. Y. SUPREME COURT. GENERAL &c. Defendant succeeded below.

TERM. THIRD DEPT. S. L. & F. M. Mayham, for plff.

Catharine Ludwig, respt., v. A. C. Cowles, for respts.

Lawrence Glaessel, applt. Held, That plaintiff had no cause Decided Dec., 1884. of action. There has been no wil.

In an action under the Civil Damage Act for ful neglect or refusal. There is a

a father's death, it appeared that a guardian doubt and reasonable doubt as to

had been appointed for his children by the



Surrogate, and that this guardian had as owned the building. The ground
signed the claims of the infants, for being of action is the sale of the liquor,
deprived of their means of support, to plain-
tiff, their mother. Held, That a recovery

not the ownership of the premises. by the mother in this action, both in her That defendant had put all his

own right and as such assignee, was proper. property out of his hands was not Defendant after having testified that he owned an issue in this action, and if true

the premises where the liquor was sold could only be tried in another
was, on cross-examination, asked whether
he had not shortly after the commencement

action. It was likely to prejudice of this action put all his property in his the jury, because it might be taken wife's hands; he answered that he had to. | by them as an admission by deHeld, That the question was immaterial and fendant of his liability in this improper.

action. This was an action under the As to whether the claims of the Civil Damage Act,Chap. 646, Laws children were assignable to the of 1873. Plaintiff sought to re mother we may say that, in analcover of defendant, a saloon keep-ogy to the case of Moriarty v. Barter, damages for selling liquor to lett, ante, 277, holding that such a her husband, whereby he became cause of action survived the death intoxicated, and, as alleged, in that of defendant, and might be concondition fell into the Erie Caraltinued against an executor, such and was drowned. She had chil claims seem assignable. It is not dren. The surrogate appointed a necessary to decide whether they guardian for them who, with the could be assigned to a stranger. surrogate's approval, assigned all Here the assignment was to the the rights of the children, for be- mother, on whom the duty of suping deprived of their means of porting the children had devolved support, to plaintiff. Defendant, by the father's death. as a witness in his own behalf, had For error in admission of evitestified that he owned the build.dence there must be a new trial. ing where the liquor was sold ; Opinion by Learned, P. J.; upon cross-examination he was Bockes and Landon, JJ., concur. asked, “Shortly after the commencement of this action did you put all your property in the hands

GUARDIANS. of yonr wife ?” he answered, “I

N. Y. SUPREME COURT. GENERAL had to." This question This question was ob

jected to by defendant. Plaintiff
recovered judgment in her own In re accounting of Henry Miller
right and as assignee of her chil- as guardian.

Decided Nov., 1884.
Shults & Borst, for applt.
J. E. Dewey, for respt.

Where a will, of which M. was executor, con

tained a wish that M. should also act as Held, That the evidence objected

guardian of a child and that the child, the to was immaterial and improper.

sole devisee, should live with M., and the Defendant had testified that he

latter, omitting to be regularly appointed


guardian, furnished the child with necessa ian. In this particular case, howries up to the time of his appointment and for some time thereafter, Held, That M., ever, questions may arise or the upon his accounting, must be allowed for proof may be such that there can the whole period during which he fur- be no recovery. nished support; that it was error to allow

Decree reversed and matter sent him only for the period after his appoint

back for rehearing.

Opinion by Learned, P. J.; This was an accounting by the Bockes and Landon, JJ., concur. guardian of an infant. His father was dead when, in 1869, his mother died. The infant was then about

HIGHWAYS. PENALTIES. five. The mother made a will,

SUMMONS. admitted to probate in 1870, by which she left her property to the


TERM. THIRD DEPT. infant, appointed Henry Miller executor, and expressed a wish that Wm. Hitchman, Comr., applt., he should be guardian of the in v. Adam R. Baxter, respt. fant until of age; that the infant

Decided Nov., 1884. should live with him.

In June, 1880, Miller was ap- In an action for penalty, under the Revised pointed guardian. On his account

Statutes, the summons wag endorsed, “For ing in 1883 Miller offered to show

a penalty imposed under and according to

the provisions of $ 19, Ch. 16, Tit. 1, Part that he had supported the infant 1 of the several statutes relating to overfrom 1869 to 1880, and asked to be

seers of highways and highway labor." allowed for it. The surrogate ex

Held, That the endorsement was fatally

defective within Code of Civ. Pro., $ 1897. cluded the proof, allowing for the infant's support only from the By 1 R. S., Ch. 16, Tit. 1, Art. time of Miller's appointment as 1, § 1, commissioners of highways guardian.

may appoint overseers of road Peter E. Palen, for Miller, districts, who by SS 6 and 7 shall applt.

keep the highways in order; and Fancher & Sewell, for a special upon a neglect or refusal to do so, guardian, respt.

by $16, they shall forfeit ten dol. Held, Error. The proof should lars, to be sued for by the commishave been received. Without sioner. This action for such a passing upon the merits of this penalty was commenced by a sumcase, we deem the view which the mons endorsed, “For a penalty surrogate took of the main ques- imposed under and according to tion erroneous. In a proper case the provisions of g 19, Ch. 16, Tit. a guardian who had furnished 1, Part 1 of the several statutes necessaries to an infant before his relating to overseers of highways appointment as guardian could and highway labor.” Section 19 recover therefor. Otherwise an of Ch. 16 has no reference to the infant having property might per- penalty. Plaintiff recovered. This ish because he had no legal guard. I was reversed in the County Court.

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1. W. Winne, for applt.

Plaintiffs wrote defendants at L. W. Baxter, for respt.

New York, asking prices for coal, Held, That the endorsement to which defendants replied, giving failed to comply with the require a price “ for cash on order and for ment of Code Civ. Pro., § 1897, immediate delivery only.” Therethat in actions for a statutory pen upon plaintiffs ordered a boat load, alty the summons, when served and stated that they would send without the complaint, must be their boat next week. They sent endorsed with a general reference the boat to Elizabethport, N. J., a to the statute establishing the coal point, and paid the purchase penalty. The language used is price. It appeared that coal was not enough to designate the Re- loaded at this place by chutes, and vised Statutes, and if it was $ 19 it was shown by defendants that it has nothing to do with this mat was the custom there, at Rondout ter. Plaintiff must give reasonable and other coal ports, that boats notice, such as would ordinarily should take their turn. On June be understood and such as would | 5 plaintiffs notified defendants and enable the defendant to discern on their representatives at Elizabethwhat statute he was sued.

port that their boat was at ElizaJudgment affirmed.

bethport ready to load and that Opinion by Learned, P. J.; defendants would be held liable for Landon and Fish, JJ., concur. delay. The boat was not loaded

until after June 15. Coal of the

same quality, which plaintiffs were CONTRACT.

forced to buy in the meantime, cost N. Y. SUPREME COURT. GENERAL more than defendants' price, and TERM. THIRD DEPT. plaintiffs recovered in this action

for the difference. Wilson H. Sherman Sherman et al.,

Edward B. Hill, for applts. respts., v. James W. Caldwell et

Preston & Chipp, for respts. al., applts.

Held, That the recovery was Decided Nov., 1884.

right. No custom of the coal trade The defendants by letter fixed a price for

is shown that where the words coal" for cash on order and for immediate “immediate delivery” are used delivery only.” Plaintiffs accepted the

these mean delivery when the offer and stated they would send their boat to the shipping point. They did so and

boat's turn may come, however also paid the purchase price ; they notified long the delay may be. And if defendants that they were ready to load such a custom exist the parties and would hold them for delay. Owing to could still contract without regarda custom at the coal port that boats should take their turn in loading at the chutes, ing it. Plaintiffs had paid for the plaintiffs' boat was delayed ten days. They coal and had sent their boat to the accepted the coal on its arrival, but recov proper place. We do not see what ered of defendants for the difference in price of the same grade of coal which they boats had priority by the custom

else they need do. Even if other were compelled to buy through the delay in shipping. Held, proper.

of the place this is no reason why Vol. 20.-No. 13b.

plaintiffs should suffer. They had | Circuit defendant had a verdict, contracted for immediate delivery | but the Circuit Judge afterwards and had performed their part of set this aside, and from that order the contract.

an appeal is taken. Judgment affirmed, with costs. Beckwith, Barnard & Wheeler,

Opinion by Learned, P. J.; | for applt.
Bockes and Landon, JJ., concur. B. M. Beckwith, for respt.

Held, That the order was cor

rect. It appears that the agreeSTATUTE OF FRAUDS.

ment set up

ne answer was ver

bal; that at the time it was made N. Y. SUPREME COURT. GENERAL

there was neither any payment nor TERM. THIRD DEPT.

any delivery of the potatoes; also William C. Randall, respt., v. that the payment of $200 was not Frank Randall, applt.

accompanied by any statement of Decided Nov., 1884.

the terms of the contract. The

contract was void by the statute Plaintiff and defendant entered into a joint of frauds. It is said this is not so venture for the purchase and sale of pota

and the matter is a settlement of toes, and plaintiff brought this action for an accounting. It appeared that while the po accounts on a joint venture, but at tatoes were still unsold defendant verbally the time of the contract the potasold his interest in the venture to plaintiff toes were in existence, unsold, and for $500, but no part of it was paid at the

it was intended that plaintiff time nor did defendant deliver the potatoes or do any act tantamount thereto. Subse should become sole owner. A de. quently plaintiff paid $200, but did not re livery of some sort was necessary. state the terms of the sale. Held, That the It is said the potatoes were already contract was void within the statute of frauds and was not saved by the subsequent in plaintiff's possession and that a payment ; also, that the fact of the action delivery would have been difficult being for an accounting did not affect the and unnecessary. They were in question.

plaintiff's possession only as partThe complaint alleged a joint ner, and in such a case a delivery venture in the purchase and sale is particularly necessary. There of potatoes and asked an account must be some act; words are not ing, both plaintiff and defendant enough. The contract was not rathaving advanced moneys on the ified by the $200 payment. It is purchase and received moneys on true that parties may make a pay. the sale. The answer does not ment subsequent to the contract, deny the copartnership, but al- and at such time may re-state or leges that defendant sold his in- recognize the terms of the original terest in the potatoes to plaintiff contract. The validity of the confor $500, which sum plaintiff agreed tract depends on this re-statement. to pay in full settlement, and that 84 N. Y., 549. There is not sutiitwo months later he was paid $200 cient evidence of any recognition on this bargain and claims judy of the contract at the time of pay. ment for the remaining $300. Atment.

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