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deprived of her right to a specific That the defendant McGuckin performance of the contract to re was accountable to the plaintiff convey by the intervening period for the proceeds of the sale of the of time, for the delay was excused property made by his testator. by her minority and the situation The other defendants were the of the parties and the property devisees of Q., to whom M. had, had not changed, for M. was not sold the property in question. Q. entitled to profit by the increased had bought this property after the value of the property. 49 N. Y., dismissal of the plaintiff's first 326.

action, and after the foreclosure of That M., not having presented the mortgage.

the mortgage. The plaintiff herean account showing the rents and in by her answer in the foreclosure profits received by hin, or the ex action set up the facts constituting penditures made by him, nor called her claim in this action, but not upon the other party to fulfil the being proper to be tried in an agreement by refunding any sum action of foreclosure they were which might have become due to disregarded. It was claimed, howhim for advances he had made, ever, by the plaintiff that this conwas not in, a situation to insist stituted notice to Q. of her rights upon a forfeiture of the equitable in the property. owner of the property to receive Held, That it appeared that Q. the title. 55 N. Y., 7.

purchased the property in good The proceedings before the referee faith and for a valuable consideraupon the application of the plaint- tion, and that in tracing the title iff during her infancy to sue as a to the property she was under no poor person, including the evidence obligation to look so far into the of one A., since deceased, were pleadings in the foreclosure suit as allowed to be given in evidence on to have informed herself of the the trial.

contents of this answer. That all Held, Error. That M. was not a that she could be required to do party to these proceedings, and would be to consult the judgment was not therefore in a condition to itself, and when it thereby appearcross-examine the witness A., and ed that the sale of the property where that right has not been en had been regularly authorized she joyed the evidence of a deceased cannot be held to have had even witness cannot be read against the constructive notice of the contents party deprived of it, or those of the answer of the plaintiff herein claiming under him in any subse Judgment reversed as to the quent portion of the proceedings. devisees of Q., and a new trial 1 Greenleaf on Ev., 7th Ed., $ 164, ordered, unless plaintiff stipulate 2 Johns., 17; 11 id., 128.

to dismiss complaint as to them, That, however, the evidence of but if such stipulation should be A. was merely cumulative, and its given, judgment modified by admission did not harm the de directing McGuckin to account for fendant.

the proceeds of the property.

Opinion by Daniels, J.; Davis, A. J. Abbott, for applt. P. J., and Brady, J., concur.

John R. Strang, for respt.

Held, That the evidence was

sufficient to sustain a finding that AGENCY. WARRANTY.

the agent had power to warrant. N.Y. SUPREME Court. GENERAL An agent employed to sell has TERM. FIFTH DEPT.

power to warrant in cases in which

the sale is one which is usually Mary A. Brayley, admrx.,applt., attended with warranty ; where v. John Dow, respt.

the buyer was justified by the naDecided Jan., 1885.

ture of the case in believing that

the agent had authority to warAn agent authorized to sell reaping machines and to give them a pretty good recommen

rant, and had no means of kpowdation, has implied power to bind his prining the limitation of his authority, cipal by a warranty.

the principal will be bound. 1 Where the court in charging the jury mis- Pars. on Cont., 60.

stated the agent's testimony in this particular; that he would warrant the machine

Appellant claims that the court for five years ” to do good work, but the erred in its charge to the jury upprincipal's counsel neglected to call the at on the question of warranty. The tention of the court to the fact, and the

court in its charge stated: “ There whole case was tried upon the theory that the machine was defective from the first.

is no great dispute that there was Held, That this did not prejudice the prin a warranty, or as to what the warcipal, if the court was justified from the ranty was. Donnan says he said evidence in charging that there was a war. the machine would do as good ranty.

work as any machine; that it was Where the agent admitted that he said he would warrant the machine to do good stronger, heavier and better than work and to be durable and strong, the the Royce machine, and would court is justified in charging that a war

cut and gather and rake off well. ranty was given.

He said he told defendant that he Appeal from judgment entered would warrant the machine to do upon verdict, and from order de good work, and to be good, duranying motion for a new trial made ble and strong. He says that he upon a case and exceptions.

said to defendant that he would Action to recover the purchase warrant the machine for five years price of a reaping machine sold to do good work, and that it was through an agent ; defense, a durable and strong.” Again, “If breach of warranty.

Plaintiff you come to the conclusion that contended that the agent was not there was a warranty, as there anthorized to warrant, and that he was,” &c. This correctly states was not bound thereby. The the substance of Donnan's testiagent testified that he was author- mony, except that he did not tesized to sell machines, &c., for tify that he said to defendant he plaintiff, and that it was his busi- would warrant the machine for ness to give the inachines a pretty five years. His testimony was : good recommendation.

“I told him that it was my busiVol. 20.-No. 19.

ness to give the machine a pretty EMINENT DOMAIN. good recommendation, and did it with the intention to sell it ; I said N. Y. SUPREME Court. General

TERM. FIFTH DEPT. I would warrant it to do good work and to be durable and strong.'

In re application of the N. Y. Plaintiff neglected to call the at- W. S. & B. RR. Co., respt., to tention of the court to its misstate. acquire lands of Isaac H. Sutherment of the testimony. Defendant land, applt. claimed that the machine was de Decided Jan., 1885. fective from the first and would

Where, in proceedings to condemn land for 3 not do good work, and the case railroad, the Commissioners allow a witwas tried upon that theory.

ness for the company to testify, against the Held, That for these reasons the

owner's objection, that the value of the words for five years" in the

portion not taken would be advanced by

the proposed improvements, it is error. charge did not prejudice the plain

And the error is not cured by a statement tiff if the court was justified from of the Commissioners in their report, that the evidence in charging that there

in fixing the amount of compensation that was a warranty.

should be awarded they did not make any

allowance or deduction on account of any Held also, That as the agent real or supposed benefits which the owner said he would “ warrant” the ma might derive from the construction of the chine to do good work, &c., the

road. court was justified in its charge. Appeal from an appraisal and

Statements made by the vendor, report of the Commissioners and describing the goods he offers for from order confirming the same. sale, together with their durabil. Proceedings were instituted by ity, capability, &c., are usually petitioner for the purpose of acsubmitted to the jury for the pur- quiring the lands described in the pose of enabling them to deter- petition for the purposes of its mine whether or not the state incorporation. A witness sworn ments were intended and under for petitioner testified that he restood to be warranties or mere sided at Pittsburgh, N. Y.; that expressions of opinion. But, in his place adjoined the Isaac Suth. this case, Donnan admits that he erland place on the east; that his said he would “warrant” it to do lands adjoin the lands of the good work, &c., and this justified Sutherland heirs on the norththe court in charging that a war west. "I have some knowledge rant was given.

of the effect upon the value of Judgment and order affirmed. lands as affected by the location of

Opinion by Haight, J.; Bradley railroad depots. Q. What, in and Childs, JJ., concur.

your opinion, will be the effect of the proposed improvements upon the land proposed to be taken in these proceedings upon the adjoining lands?” Objected to as incompetent and iinmaterial.

Objection overruled, to which statement appearing in the award ruling counsel for the owner then the error in admitting the eviand there duly excepted. The dence was cured. witness answered : “My judgment Held, That the error was not is that the value of the remaining cured by the statement of the portion would be advanced.” Evi- Commissioners. They did not dence had already been given state that they disregarded the obtending to show that the railroad jectionable evidence, or that it had company contemplated locating a no influence upon their minds in depot in that vicinity.

determining the amount of comH. H. Woodard, for applt. pensation which ought to be Davy & Maurer, for respt. awarded. As was held in 29 Hun,

Held, That the evidence objected 1, “The presumption is, that all to is in direct conflict with the evidence, whether proper or improvisions of the railroad statute, proper, received and retained by and was improperly received. a trial court until its decision is

The statute provides that in fix pronounced, had its natural effect ing the amount of compensation upon the decision, and that prethe Commissioners shall not make sumption cannot be overcome by any allowance or deduction on ac any subsequent assertion of the count of any real or supposed person or persons composing the benefits which the parties inter- tribunal by which the decision was ested may derive from the con- made.” We think the Court ought struction of the proposed railroad not to hold that it is bound by the or improvement connected with statement of the Commissioners such road, for which such real that they had adopted the basis tate may be taken. The true provided by

The true provided by statute in determinrule of compensation is that the ing the amount of compensation owner should be awarded the that ought justly to be made, and market value of the land actually cannot correct the error committaken, and in addition thereto the ted. depreciation in the market value The appraisal should be set aside of the lands remaining as com- and the order reversed with costs pared with their former market of this appeal to appellant, and a value. 29 Hun, 609-611.

re-appraisal ordered before new The Commissioners, in

in their Commissioners to be appointed by award, stated, that in fixing the the Special Term. amount of such compensation Opinion by Haight, J.; Bradley, they did not make any allowance Angle and Childs, JJ., concur. or deduction on account of any real or supposed benefits which RAILROADS. NEGLIGENCE. the owner might derive from the

GENERAL construction of the road.


TERM. FIFTH DEPT. now contended, on the part of the company, that because of this Hannah N. Woodard, admrx.,

was OC

respt., v. The N. Y., L. E. & W. were running by the force of their RR. Co., applt.

momentum, unattended by any Decided Jan., 1885.

person who could give warning or check their progress.

The side of Where defendant was guilty of gross negli. the street upon which the deceased gence in shunting its cars across the street

approached the track of a populous village, without any person upon them to give warning or exercise cupied by a building which came control over their movements, and the de to within thirty-one feet of the ceased, who was carrying a basket of coal, track. After passing the corner of may have had his attention diverted by the

this store they had a view of a moving trains upon the further tracks, etc., Held a proper case for the jury to portion of the track, but not for determine whether plaintiff was chargeable any considerable distance. After with contributory negligence in not ob. having passed to within fifteen serving the approaching cars before at.

feet of the track they could then tempting to cross. Where, in such cases, the court charged that

see up the track a distance of fifty. defendant's negligence was established as a six feet, and as they approached matter of law, but no exception thereto nearer they could see farther. The was taken, nor did defendant ask the court

men carrying the coal were walkto submit the question to the jury, Held, ing at the rate of about two miles That error in the charge in reference to sounding the whistle, etc., or as to defend per hour. The cars, approaching hy ant's negligence, was not available on ap the force of their own momentum, peal.

were running at the speed of beAppeal from judgment entered tween three and four miles per upon verdict, and from order de hour. It was a clear day, about nying motion for new trial.

noon, and if the deceased had Action to recover damages for looked in that direction within the death of plaintiff's intestate, tifteen feet of the track he could alleged to have been caused by have seen the cars approaching. defendant's negligence. There is and thus saved himself from insubstantially no conflict in the tes-jury. It also appeared that on the timony. The intestate lived in fourth track a freight train was Hornellsville, near the railroad passing out of town to the west, track, and was well acquainted and there was some evidence tendwith the manner and custom of ing to show that upon the third defendant in moving its cars over track there were some coal dumps the tracks in that vicinity. The which had been shunted down injury was received at the cross- upon the crossing, and were passing at Canisteo street. He anding over as the deceased came up another were engaged in carrying to the tracks. a bushel basket full of coal across It is contended on the part of the tracks; as they attempted to appellant that the court erred in cross the first track, known as the refusing to grant a non-suit ; that Osborne House switch, they were the deceased was guilty of construck by some cars which had tributory negligence in not having been shunted down that track and I looked or listened before passing

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