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ceived that load, whether the other, required. Upon this question the two loads complied with the con evidence was conflicting, and the tract or not. Exceptions taken. jury determined it in plaintiff's

favor. John Gillette, Jr., for applt.

Plaintiff was not bound to have D. G. Latten, for respt.

the whole amount of barley on Held, That the charge and the hand ready for delivery. He had refusal to charge were correct, and the right to continue to purchase the exceptions were not valid. It from day to day until he had purcould hardly have been within the chased enough to amount to the contemplation of the parties that bushels required. He had the the barley was to be delivered in right to tender the barley upon one body and at one time, but the contract load by load as he rather by the wagon load, as all purchased it, and it was not necesthe barley had been previously sary, after a breach of contract by delivered. 27 Hun, 416; 36 N. defendant, to continue purchasing Y., 221; 21 N. Y., 397; 8 N. Y., other barley to be offered and re508; 34 Barb., 204 ; distinguished. fused.

It was plaintiff's duty to have One of the loads consisted of continued to purchase and deliver barley reserved for seed and was until he had delivered the entire raised on plaintiff's farm. It does amount of 3C6 bushels before he not appear to have been mixed or could maintain this action, unless mingled with any other barley. defendant waived the necessity of Defendant sampled and tested the delivering the entire amount by barley in each of the loads, and wrongfullv refusing to accept. 81 refused to accept them, but offered N. Y., 341. But if plaintiff drew to accept the former load at fifty a load of barley and tendered it to pounds to the bushel, when fortydefendant, and it corresponded in six pounds was the standard all respects with that required by weight. the contract, and defendant re Held, That his refusal to accept fused to accept, plaintiff is not this load except upon the condibound to continue day after day tion named rendered it unnecesto draw other loads to defendant sary for plaintiff to separately and have them refused until he tender it in any other form or has drawn and tendered the whole manner than he had done. amount required by the contract. Judgment and order asfirmed. Refusal to accept is a breach of Opinion by Haight, J.; Smith, contract, and dispenses with the P J., Barker and Bradley, JJ., necessity of further offer to deliver concur. the remainder. If the barley was not of the quality required by the contract, defendant was justified in refusing to accept, and plaintiff was bound to deliver the barley


tion was delivered to the city MENTS.

treasurer April 1, 1874, and the

land was sold on the assessment N. Y. COURT OF APPEALS.

April 28, 1876, and bid in by the Rumsey et al., respts., v. The city. It was claimed that the cerCity of Buffalo, applt.

tificate of sale executed by the

comptroller does not conform to Decided Oct. 21, 1884.

the statute. The complaint alleged An assessment on lands in Buffalo creates an

that the corporation issued and deapparent lien on the land presumptively livered to defendant a certificate valid, although imposed without authority of sale in conformity with the of law, and the owner may maintain an ac

charter, and the Court found that tion as soon as it is laid, to have it declared

this allegation was true, which void as a cloud on its title. The lapse of more than five years from the

finding was not excepted to. time the roll was delivered to the treasurer Held, That defendant is condoes not prove that there is no cloud where

cluded by the record from questhere has been an intermediate sale of the tioning the validity of the certifiproperty.

cate of sale. This action was brought by Defendant's charter provides plaintiffs to have an assessment on that assessments shall be a lien their land declared illegal and void upon the land on which they are and to enjoin and restrain the col- assessed for five years from the delection and enforcement thereof. livery of the assessment roll to the By defendant's charter the valid treasurer. The five years expired ity of an assessment is to be pre- April 1, 1879, and this action was sumed, and the burden of estab- not commenced until January 10, lishing its invalidity is cast upon 1880. The sale, however, was made the party questioning it (Laws of within the five years. 1870, chap. 519, § 36). The com Held, That the fact that more plaint alleged that the assessment than five years had elapsed from in question was illegal and void; the delivery of the roll to the treasthe Court found that it was and urer, where there has been an inthe finding was not excepted to. termediate sale, does not prove

P. A. Matteson, for applt. that there is no cloud resulting George Wadsworth, for respts. from the illegal assessment. The

Held, That the assessment cre- lien by the sale is transmuted into ated an apparent lien on plaintiff's a claim in favor of the purchaser land presumptively valid, although under the certificate. imposed without authority of law; Defendant's charter provides that plaintiffs had a right as soon that a notice to redeem from a tax as the assessment was laid to come or assessment sale may be given into Court to have it declared void, after the expiration of nine months as a cloud upon the title.

and before the expiration of three It appeared that the assessment years from the sale (S 23), and if roll containing the amount in ques- the land is not redeemed within

three months after service of the laration of sale by the common notice the common council is au-council. If notice to redeem had thorized to grant to the purchaser been served there was a cloud, or his assignees a declaration of whether it had or not was a fact sale, but before doing so an affidavit not of record, and no purchaser of service of notice to redeem and a could safely buy without investicertificate of the comptroller that gating and ascertaining the exno redemption has been made shall trinsic fact; a case was therefore be filed with the comptroller (824). made for relief. 40 N. Y., 547 ; 14 It is also provided that the decla. id., 9. ration shall not be granted after Judgment of General Term, affive years from the sale ( 26), and firming judgment declaring the aswhen granted it is made presump- sessment illegal and void and entive evidence that the tax and as- joining defendant from collecting sessment raised was legally im- the same, affirmed. posed ; that due proceedings to Opinion by Andrews, J. All authorize the sale were had, and concur, except Rapallo, J., not that the sale was regular ($ 29). voting. This action was commenced within five years after the sale. It was claimed that as more than three


TICE. years had elapsed between the time of the sale and the commencement | N. Y. SUPREME COURT. GENERAL of the action the whole proceeding

TERM FIFTH DEPT. was a nullity unless the notice to redeem was served. Such service

Robert F. Atkinson, receiver, was not shown.

applt., v. Milton Stafford, respt. Held, That this was an extrinsic Decided Oct., 1884. fact, not of record, and record evidence thereof is not required to be

A bank receiving a draft from a banker for

the express purpose of collection acts made until the purchaser applies

merely as an agent, and can claim no right for a declaration of sale, and such

or title thereto by reason of their mutual application may be made at any dealings as against the owner and drawer time during two years after the ex

thereof, who has the right to stop payment

of the draft upon the insolvency of the piration of the time prescribed for

bank without being subject to liability is service of notice io redeem ; that

drawer at the suit of the receiver, there was an assessment on plaint Nor is such drawer liable to the bank for the iff's land presumptively valid, al amount received by him from the banker though in truth invalid, followed

as an advance upon the draft, though the

latter was then utterly insolvent and largely by a sale and the issuing of a reg. indebted to the bank, but only the banker ular certificate of sale to the pur or his assignee is entitled to recover it. chaser, creating a right, which If a party fails to ask to go to the jury upon

certain questions, he cannot object upon might, so far as the record showed,

appeal that there are questions that should ripen into a presumptive title to

have been submitted to the jury. the land by the granting of a dec- ' If the court inadvertently mistakes the facts in

Vol. 20.–No. 3.

charging the jury, counsel must call its | bank credited them to M. upon attention thereto at the time.

his prior indebtedness ; that the Where drafts are transmitted by one bank to another for the express purpose of collec

plaintiff bank was also insolvent, tion, a custom of the latter contrary thereto and on the same day the directors is not admissible.

resolved to apply for a receiver, Appeal from judgment entered and plaintiff was accordingly apupon verdict in favor of defendant, pointed. That Moore was then and from order denying motion largely indebted to the plaintiff for new trial on the minutes.

bank. Action by plaintiff as receiver The court refused to direct a of the City Bank of Rochester to verdict either for the amount of recover the amount of two drafts the drafts, or for the $100 paid to ($1,121) drawn by defendant, the defendant.

. The only question payment of which he had stopped. submitted to the jury was whether Defense was that plaintiff was not or not the $100 was delivered by the owner thereof. Defendant Moore as an advance upon the testified that on Dec. 19th, 1882, drafts. The jury found for dehe put the drafts in Moore's fendant. Bank ; Moore said he had not the Smith & Briggs, for applt. money and could not buy them, John Gillette, Jr., for respt. but would take them for collec Held, That as plaintiff did not tion. Defendant told him he ask to go to the jury upon the queswanted $700 to pay V., and M. tion whether the drafts were desaid he would give him a draft on livered to the banker Moore merely New York for that amount, which as agent for collection, or whether he did, together with $100 in cur- it was intended to transfer the rency; and defendant gave his title to them, it cannot now be check for $800. M. credited him claimed that these were questions on his books with the amount of that ought to have been submitted the drafts and charged him with to the jury ; that under the cirthe $800. Defendant had an ac cumstances the court properly count at Moore's Bank, but disposed of the question, 55 N. only $12.90 stood to his credit. Y., 438; 73 N. Y., 269; 53 N. Y., It was conceded that

650 ; 33 N. Y., 289 ; 67 N. Y., 5.48 ; then entirely insolvent, with lia and that the verdict is not against bilities much greater than his as the weight of evidence. That if, as sets, and had no funds to meet his the verdict establishes, Moore redraft on the New York Bank, ceived the drafts merely for colwhich was protested for non-pay- lection, then he became the agent ment; that he made a general of defendant for that purpose, and assignment on said 19th Decem- having been transmitted to plainber, and on the same day trans- tiff bank for the same purpose, the mitted efendant's draft to plain-title to the drafts remained in detiff bank in a letter stating “I fendant, and he had a right to preenclose for collection,” but the vent their payment to either of

soore was

them. Besides, the plaintiff bank | A railroad company is responsible in damawas not a bona fide holder for

ges for delay in the transportation and devalue.

livery of stock caused by a “strike,"

and the forcible interference of its emHeld also, That plaintiff could ployees, although assisted by outsiders who not recover the $100 paid to de sympathized with them, and the company fendant, as that became a debt

had at all times a sufficient force of faithful

employees to have operated and run the due only to M. or his assignee.

road, had it not been for such forcible inPlaintiff asked the cashier of

terference and the overwhelming power of the bank the question : “Was it the mob. If the “strike" originated with your custom ever to enter matters

and was maintained by such employees or for collection for Moore? which

"strikers," and terminated when they saw

fit, the company is responsible for their acts was excluded.

in preventing the transportation of freight, Held, That as the drafts were and whether it did so originate is a quesaccompanied by express instruc

tion of fact for the jury to determine upon

the whole evidence adduced. tions to collect them, the custom of the bank was immaterial.

Motion for a new trial upon exThe court said to the jury, “ It ceptions taken by defendant ormay be, as said by defendant, that dered to be heard in the first inthe $700 draft was all that was stance at general term, judgment transferred on the credit of these upon the verdict in the meantime drafts, and yet whether it was or being suspended. not will be for you to say.” No Action was brought to recover exception was taken.

damages sustained by reason of Held, That although defendant the delay of defendant in deliverdid not use these precise words, ing car loads of cattle, &c., which yet it was hardly reasonable to it was transporting from Toledo to suppose that from the whole tes. Buffalo. The delay was occasiontimony and the charge that the ed by a “strike” of defendant's jury were misled ; besides, it was employees.

Defendant had the the duty of counsel to call the at necessary cars, engines, and men tention of the court to the fact at required to carry the stock through the time. 3 Barb., 31.

to its destination, but was preventJudgment and order affirmed. ed from so doing by the forcible

Opinion by Haight, J.; Barker acts of the strikers, who took posand Bradley, JJ., concur; Smith, session of the locomotives, detachP. J., taking no part.

ed the hose, let out the water, uncoupled the cars, carried away

and hid the coupling pins and COMMON CARRIERS.

links, and placed the engines in N. Y. SUPREME COURT. GENERAL the round-house, and barricaded TERM. FIFTH DEPT.

the doors. Plaintiff claimed that

this was done by defendant's Meyer Geismer v. The L. S.

employees, while defendant insist& M. S. RR. Co.

ed that the "strike” was comDecided Oct., 1884.

menced and carried on by a law

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