Imágenes de páginas

within the meaning of Art. VI. of the Con. | such an official. A justice of the stitution, and the limitation contained

peace may therefore be elected to therein does not apply to said official.

and hold the office after the last Reversing S. C., 19 W. Dig., 290.

day of December next after he The question presented in this shall be seventy years of age.” case is whether the limitation of Order of General Term, affirmage contained in $ 13, Article 6, of ing order of Special Term awardthe Constitution applies to justices ing an absolute right of prohibition, of the peace. Said section is as reversed, and writ dismissed. follows: “Justices of the Supreme Opinion by Andrews, J. All Court shall be chosen by the elect concur. ors of their respective judicial districts. Judges of all courts

ABORTION. EVIDENCE. mentioned in the last preceding section shall be chosen by the N. Y, COURT OF APPEALS. electors of the cities respectively in which said courts are instituted. The People, respts., v. Vedder, The official terms of the said applt. justices and judges who shall be

Decided Feb. 3, 1885. elected after the adoption of this article shall be fourteen years from

A woman upon whom an abortion has been

produced at the instance of her paramour and including the first day of

is not an accomplice in the commission of January next after their election. the crime within the meaning of the section But no person shall hold the office of the Code requiring corroboration of the

testimony of an accomplice. of justice or judge of any court longer than until and including Defendant, with one P., . was the last day of December next indicted for producing a mis-carafter he shall be seventy years of riage upon the body of one W.

On the trial W. was called as a The section preceding mentions witness by the people and gave the Superior Court of the City evidence. Her evidence was obof New York, the Court of Com-jected to by defendant on the mon Pleas of said city, the Sup-ground that it was uncorroborated, erior Court of Buffalo and the and therefore inadmissible, as W. City Court of Brooklyn.

was an accomplice. The objection J. S. Millard and Geo. W. was overruled, and the court Parker, for applts.

charged the jury, with the consent W. H. H. Ely, for respts.

of the district attorney, that they Held, That a justice of the peace should acquit the defendant unless does not “hold the office of justice they found that W.'s testimony or judge of any court” within the was corroborated by other evidence meaning of said article of the tending to connect him with the Constitution, and the limitation of commission of the crime. The age contained in the judiciary court also stated to the jury that article does not therefore apply to | W. could not be regarded technic


ally as an accomplice in the com. | (Laws of 1848, Chap. 40), to charge mission of the crime.

him with certain debts of the corJ. H. Clute, for applt.

poration. Defendant was one of D. Cady Herrick, district at the trustees from 1872 to June, torney, for respts.

1875. The corporation failed to Held, No error; that W. was make its annual reports as renot an accomplice within the mean- quired ($ 2) in 1873, 1874, and ing of the Code requiring corrob- 1875. This action was brought oration of her testimony as mat- January 14, 1878, to charge deter of law.. 29 N. Y., 523 ; Penal fendant with certain debts alleged Code, 294; 10 Vroom, 599; 11 to have existed at the time of such Gray, 85; 116 Mass., 343; 9 Texas defaults. The complaint alleged Ct. App., 237.

that said corporation hired of Judgment of General Term, plaintiff certain premises for a : affirming judgment of conviction, term of six and a half years from affirmed.

November 1, 1872, at a yearly rental Opinion by Ruger, Ch. J. All of $5,000 and the taxes and Croton concur.

water rates imposed for each year,

and "if not so paid before the first TRUSTEE. LIMITATIONS.

day of February after they are so

imposed, the company will pay on N. Y. COURT OF APPEALS. that day, as additional rent, all

The Rector, etc., of Trinity penalties and interest imposed for Church, respl., Vanderbilt,

non-payment of the same.” De

fendant admitted these allegations applt.

to be true, and it was found that Decided Feb. 10, 1885.

in 1873 and 1874 water rates and Neither the continuance of default in paying

taxes were imposed upon said a debt nor subsequent omissions of the premises, which became due and company to make annual reports can renew payable in May and September in the liability of a trustee for such debt, or

each of those years, and were not create a new right of action. A corporation lessee covenanted to pay a cer

paid. The judge found as conclutain sum as rent, and to pay the taxes and

sions of law that a right of action water rates imposed for each year, and if accrued for the water rates and not so paid before the 1st of February after taxes imposed in 1873, by reason they became due, then to pay on that day of the omission to file a report in all penalties, etc., as additional rent. Ilela, 1873 and 1874, but that such right That on default of payment of the taxes and water rates no cause of action to re is barred by the statute of limita. cover them accrued to the lessor until the tions; that a right of action for 1st of February after they were due.

those imposed in 1874 accrued to Affirming S. C., 15 W. Dig., 499.

plaintiff February 1, 1875, which This action was brought against was not barred. defendant as trustee of a manufac John McNamee, for applt. turing corporation, organized un S. P. Nash, for respt. der the general manufacturing act Held, That the liability of the


corporation was upon the covenant until February 1, 1875, and at that to pay the water rates and taxes. time the defendant became liable Defendant's liability depended because of the previous default of upon the existence of the debt, a the company, and as the action default in making the report, and was brought within three years a the trusteeship. 27 N. Y., 297 ; recovery could be had against 81 id., 49. If there is no obliga. hiin. tion giving a present right of ac Judgment of General Term, tion against the company, there is affirming judgment at Circuit, afno debt which can be demanded firmed. as a penalty against the trustee. Opinion by Danforth, J. All 62 N. Y., 203 ; 63 id., .62; 68 id., concur, except Rapallo, J., who 34. Here there was an alternative votes for reversal of defendant's contract, and the party to be appeal. charged could elect which alternative he would perform, and could

SET-OFF. be charged only upon a breach of

N. Y. COURT OF APPEALS. both. The water rates and taxes im posed in 1873 the company was

Littlefield, respt., v. The Albany not chargeable with until Febru County Bank, impld., appll. ary 1, 1874, and as there was a Decided Jan. 20, 1885. failure to file a report within

Whoever takes an assignment of an over-due twenty days of January 1, 1874, debt or obligation takes it subject to all the the statutory liability accrued equities of the person who makes the asagainst defendant. The statute of

signment, and the debtor has against him limitations commenced running Plaiutiff on buying out his partner J.'s inter

the same equities as against the assignor. against the same on February 1, est in the firm gave him certain promissory 1874, and the cause of action was notes in payment, on the agreement that barred before this action was

plaintiff should attend to the prosecution of

an appeal from a judgment against the firm, commenced. 27 N. Y., 297; 35

and that J. would pay half the expenses and id., 412; 50 id., 137; 62 id., 203 ; of the judgment if affirmed. J. became in79 id., 404. Neither the continu solvent and assigned the notes to defendant ance of the default, nor subsequent.

after maturity and judgment was recovered

Plaintiff was compelled to omissions on the part of the com

pay the judgment against the firm. Ield, pany to make a report, could as

That he was entitled to have half of the to the debt in question either re amount paid by him on the judgment and new the old liability or create a

for expenses thereon set off against the

judgment recovered on the notes. new right of action. The statute operates upon the remedy, and This action was brought to have the omission of the creditor to certain sums paid by plaintiff for pursue it cannot stop its running. the defendant, J., applied in satis79 N. Y., 404.

faction of a judgment obtained by Also held, That the taxes and J. against plaintiff in an action on water rates of 1874 did not accrue certain notes, any recovery in as a debt against the company which had been assigned by J. to

Vol. 20.--No. 21a.

upon them.

the bank defendant as collateral Isaac Lawson, for applt. security for a precedent indebted. Hamilton Harris, for respt. ness. It appeared that while Held, That plaintiff was entitled plaintiff and J. were partners one to the relief sought. P. obtained a judgment against Whoever takes the assignment them for an infringement of a of an over-due debt or obligation patent.

takes it subject to all the equities An appeal was taken therefrom, of the person who makes the asand while it was pending plaintiff signment, and the debtor has bought of J. his interest in the against him the same equities he firm and gave him his promissory would have against the assignor. notes in payment. It was agreed Equity requires that when two between plaintiff and J. that the claims are connected, although former should attend to defending one is unliquidated, set-off should the suit brought by P. against be compelled when by reason of them, and the latter pay one-half the insolvency of either debtor of the expenses and the recovery satisfaction cannot be obtained. therein.

10 Paige, 369 ; 80 N. Y., 660. J. subsequently sued plaintiff Judgment of General Term, afon his notes, and while the action firming judgment for plaintiff,

, was on trial assigned his claim affirmed. therein to the bank defendant. Opinion by Danforth, J. All At that time J. was insolvent, and concur. has continued to be so. In the action upon the notes plaintiff was CHATTEL MORTGAGE. allowed, by way of set-off, one.

N. Y. COURT OF APPEALS. half the costs and expenses incurred by him in the suit brought Ball, applt. v. Slafter, respt. by P. up to the time J. commenced

Decided Jan. 20, 1885. the suit upon the notes; those incurred subsequently were rejected, A chattel mortgage on a stock of goods which and J. obtained judgment against

provides that the mortgagur may retain and

sell the goods, provided he does not reduce plaintiff for the balance due on the

the stock below a certain amount, giren notes after deducting the set-off

under an arrangement that he is to sell the allowed. The P. suit was subse goods and pay the indebtedness as fast as quently settled by plaintiff, and

possible, is fraudulent as to creditors and

void. the bank defendant threatening to enforce the judgment recovered by This was an action for the conJ. against plaintiff, the latter version of personal property. brought this action to have one- Plaintiff claims under a chattel half the sum paid by him on the mortgage dated November 7, 1878, settlement with P., and of the and executed November 29, 1878. costs and expenses not allowed to This mortgage was retained by the him set off against and applied in mortgagee and not filed until satisfaction of Ji's judgment. March 19, 1879, at 11 A. M. It

contained a provision allowing the


owners of property advertised for mortgagor to retain possession of

taxes, and not an authority to the Treas

urer to subject the property to exp nses the mortgaged property, which

for advertising beyond the sum fixed by consisted of a stock of goods, with Chap. 831, Laws of 1869. The two acts the privilege of selling therefrom are to be construed together. provided he did not reduce it to A contract entered into by a County Treas. less than $6,000. The mortgage

urer for the publication of the tax list at

$2 for each piece of land to be sold is was given to secure the mortgagee beyond the scope of his authority and not for indorsements. Plaintiff, the binding upon him in his official character inortgagee, testified that at the nor upon the county. time the mortgage was given it Affirming S. C., 14 W. Dig., 528. was arranged that the mortgagor

This action was brought against was to sell the goods and pay the defendant in his official character, notes as fast as possible. Defend as county treasurer of Ulster counant is assignee of the mortgagor ty, to recover the contract price for for the benefit of creditors under certain advertising done by plainan assignment dated March 18, tiff, a newspaper publisher, in the 1879, and recorded March 19, 1879, publication of the advertisement at 9.30 A. M. At the close of the of the sale of lands for taxes in evidence defendant moved for a 1879. The price under the connonsnit on the ground that the tract was two dollars for each and mortgage was fraudulent as to him, every of the several pieces of land and the motion was granted. to be sold, and was fixed under M. M. Waters, for applt.

the provisions of Chapter 65, of R. H. Duell, for respt.

the Laws of 1878, section 6, which Held, That the mortgage was as provides that the county treasurer matter of law fraudulent and void shall sell certain lands, “to disas to creditors, and the assignee of charge the taxes, interest and exthe mortgagor could assail it upon penses aforesaid, which may be that ground.

due thereon at the time of sale, Judgment of General Term, the publishing of the said notice affirming judgment of nonsuit, not to exceed the sum of two dolaffirmed.

lars for each newspaper so pubPer curiam opinion. All con- lishing each of the several no



William Lounsbery, for applt.

J. Newton Fiero, for respt. TAX SALE. PUBLICATION.

Held, That the compensation to N. Y. COURT OF APPEALS.

which the plaintiff is entitled for Crouch, applt., v. Hayes, Treas. publishing the advertisement of

the tax sale is governed by Chapurer, respt.

ter 831, of the Laws of 1869. The Decided Feb. 10, 1885.

provision of Chapter 65, of the The provision of $ 6, Chap. 65, Laws of Laws of 1878 ($ 6), above set forth,

1878, is a limitation for the protection of lis a limitation for the protection of

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