Imágenes de páginas
PDF
EPUB

the owners of property advertised demnity company, with no other for taxes and not an authority to sureties. the treasurer to subject the prop John D. Townsend, for motion. erty advertised to expenses for

Edwdrd W. Crittenden, op advertising beyond the sum fixed posed. by the act of 1869. The two acts Held, That the undertaking was are not inconsistent and are to be insufficient; that an undertaking construed together.

upon an appeal to this court must Also held, That the contract in be executed by at least two sure. suit was beyond the scope of the ties. Code Civ. Proc., 1334. county treasurer's authority and The appellant cannot himself sign was not binding upon him in his as a surety. 10 Abb. N. C., 407. official character, or upon

upon the Chapter 486 of the Laws of 1881, connty. 79 N. Y., 207.

which provides for the acceptance Order of General Term, reversing of guarantee or indemnity comjudgment for plaintiff, affirmed, panies as sureties, does not repeal and judgment absolute on stipula- $ 1334 of the Code, and is not intion for defendant.

consistent with it. The Act of Per curiam opinion. All con 1881 applies only to bonds or cur, except Earl, J., not voting. undertakings which are to be ac

cepted or approved by a head of

department, surrogate, judge, APPEAL. UNDERTAKING. sheriff, district attorney or other

officer, and it merely authorizes N. Y. COURT OF APPEALS.

any officer who is required to apNichols, admrx., respt., v. Mac- prove any such bond or underLean, applt.

taking to accept and approve the

same, in bis discretion, when its Decided Jan. 27, 1885.

conditions are guaranteed by a An undertaking on appeal to the Court of duly incorporated guarantee com

Appeals must be executed by at least two pany. The undertaking on an apsuretics ; the appellant cannot bimself be peal in this court does not require one of the sureties, nor can the approval by the approval of any judge or a judge of a guaranty company under chap. officer, Code, $ 1335, and the ap486, Laws of 1881, take the place of the two sureties.

proval of a judge cannot be substiAn appellant is only required to file the return tuted for the two sureties required and serve the printed cases.

The respond- | by law. ent may, if he so desires, place the case on

Also held, That the appellant the calendar and notice for argument.

was bound only to file the return This was a motion to dismiss an and serve the printed cases. The appeal on the ground of the insuf- respondent, if he wished to exficiency of the undertaking filed, pedite the case, could himself put and also for want of prosecution. it upon the calendar and gire The undertaking was executed notice of argument. only by the appellant and an in Motion granted, unless within

thirty days appellant files a proper | citation, upon request of respondundertaking and pays the costs ent, the Surrogate ordered the of motion.

widow to file an account showing Opinion by Rapallo, J. All the items of the $850 expended by concur.

her. This was done. The Surrogate allowed her $658, declined to

order $300 paid to her semi-annuWILLS.

ally, but gave her permission to N. Y. SUPREME COURT. GENERAL apply to the court from time to TERM. THIRD DEPT.

time to be reimbursed for moneys

expended. She appeals from this In re estate of C. S. Dickerman.

order. Decided Jan., 1885.

R. H. McClellan, for applt.

Irving Haynes, for respt. A testator gave his wife the income of his estate for life and in addition authorized

Held, Error; that the wife might her to use such part of the principal as she use, if necessary in her judgment, might from time to time, in her judgment, the whole principal, and that the require to maintain ber in a manner suita. Surrogate could not require her to ble to her station in life. This provision was stated to be in lieu of dower. He then

account for her expenditures. The gave the remainder of his real and per executor may be correct in stating sonal, after her death, to certain nephews that the widow did not take a fee and nieces. Ileld, that the wife might use

and that there was a valid remainif necessary in her judgment, the whole

der over. But as to this see 91 principal; that a Surrogate could not require her to account for ber expenditures N. Y. 464. The will leaves it to the made under the above clause, and that for judgment of the widow what she such expenditures she was not accountable shall expend, and there is nothing to the remaindermen.

in the will inconsistent with this. The will of C. S. Dickerman first The clause stating the provision to gave his executor power to sell be in lieu of dower is important to his real estate for debts, legacies relieve the real estate. or for final settlement and distri The provision for the widow was bution. Then follow the clauses highly proper. The husband had substantially as stated in the head confidence in her, she was old and note. The widow petitioned the the parties in remainder are only Surrogate under Code, $ 2717, that nephews and nieces. The question the respondent, executor of the whether the widow can dispose of estate, pay her $850, moneys al- the whole estate (or what remains) ready expended for her support, by will is not before us. and that thereafter he pay her manifestly improper for the Surro$300 every six months. The per- gate to require her to account. She sonal estate was about $2,300, its is entitled to have of the estate income $170. The real estate was what she needs to use. She is not worth $3,000 and produced little entitled simply to be reimbursed or no income; the widow was 63 for what she has spent. years old. On the return of the The decree of the Surrogate must

It was

be reversed; the executor must be by defendant King, to enable required to pay the widow $850, plaintiff to frame its complaint and $300 semi-annually, costs here herein, and to prepare for the trial and in the Surrogate's Court are of the action, the petition stated charged on the executor person that the assessment roll and warally.

rant for the collection of the taxes Opinion by Learned, P. J.; of plaintiff's school district is in Landon, J., concurs.

the possession of said King; that

it was received by him as plainDISCOVERY.

tiff's collector; that he had col

lected the taxes thereon, and that N. Y. SUPREME COURT, GENERAL the time within which he was auTERM. FIFTH DEPT.

thorized to collect the taxes and The Board of Education of return the warrant has expired; Union Free School, No. 1, of that his term has expired and his Olean, respt., v. John King et al.

successor elected and qualified ; applts.

that there are moneys collected

by him upon such assessment roll Decided Jan., 1885.

and warrant which he has refused In an action against the principal and and neglects to pay over to plain-,

sureties on a tax collector's bond, to re tiff or its treasurer, although recover the amount of taxes collected and

quested so to do, etc. not paid over, the plaintiff is entitled to a discovery and inspection of the assess

George H. Phelps, for applts. ment roll and warrant in the possession of

J. R. & M. B. Jewell, for respt. the principal, for the purpose of ascertain Held, That the statements coning the amount collected, and to enable

tained in the petition were suffiplaintiff to frame its complaint, etc.

cient to bring the case within the Appeal from order requiring provisions of the Code, SS 803-4-5, defendant, John King, to deposit and the rules of the Court. with the Clerk of the Court, for Rules 14 and 15. It is quite applaintiff's inspection, the assess-parent, from the nature of the ment roll and warrant for the col. action, that plaintiff ought to be lection of plaintiff's taxes held by permitted to inspect the assesshim.

ment roll' and warrant. It should Action was brought to recover contain information as

to the of defendants as principal and amount of taxes collected by the sureties upon a collector's bond defendant K., and the persons the amount of money which, it from whom collection was made. was alleged, defendant King, as This information could not be ascollector of plaintiff, had collected certained by plaintiff from any upon the assessment roll and war other source, unless it should rant, and which he refused to pay cause each taxpayer in the district over. Upon an application for a to be personally interviewed upon discovery and inspection of the the question. This, we think, canassessment roll and warrant held not be required.

Order affirmed, with $10 costs no money paid or property deand disbursements.

livered. On June 19 L. paid a Opinion of Haight, J.; Barker large sum upon M.'s debts. and Bradley, JJ., concur.

On June 20 M.'s property was attached at the suit of various per

sons and was taken possession of BILL OF SALE. CONVERSION. by one McCall, a deputy sheriff. N. Y. SUPREME COURT. GENERAL On June 21 M. executed a bill of TERM. THIRD DEPT.

sale to L. in furtherance of the

agreement made with him on June Jeremiah Hatch et al,

et al, exi's,

18, delivered it to L. and the same respts., v. Xenophon W. Collins, day it was filed in the office of the applt.

Town Clerk of the Town of Rupert, Decided Dec., 1884.

Vt., where the property was situ

ated. L., the same day, saw McCall Where a father-in-law took a bill of sale of

and told him he had bought all his son-in-law's property and promised in return to pay bis debts, some of which were

M.'s property, including that in in the form of notes confessedly forged by

suit. On June 22, upon a writ of the son-in-law, and where it appeared that attachment in favor of defendant the father-in-law was induced to do this, that day received, McCall levied not from motives of gain or to destroy evidence of the crime, but simply from kind

upon the property in suit, and ness and compassion, Held, that the trans

under Collins' judgment and by action was legitimate and would be upheld his direction it was sold. Hence against the claims of bona fide creditors of this action, in which plaintiffs sucthe son-in-law.

ceeded. This action was for the conver

J. H. McFarland, for applt. sion of an evaporator and sap buckets used in making maple

Frank H. Graham, for respts. sugar. The answer was a denial Held, That the judgment was and a justification under a Ver- right. What transpired between mont attachment against one M. M. and L. before June 21 was not The action was begun by Thomas effectual, as the property was over

he died before the trial and his $50 in value; but by the bill of executors have been substituted sale of June 21 M. passed the title M., who was Li's son-in-law, was and so far as he was able delivered greatly in debt and had forged possession to L. By this bill of L.'s name to some notes which sale L. got title subject to the lien were coming due. M. lived over of the attachments then levied. If the N. Y. line in Vt. L. lived in they had used up all the property Washington Co. On June 18 M. L. could not have complained. By went to see L., told him the situ- his attachment defendant on the ation and agreed to sell L. all his 22d got nothing. The title was personal property in Vermont, L. then in L., and of this McCall was to pay all his debts.

No memo

notified. It was proved on the randum was made of this contract, I trial as a fact that, by the law of

L.;

Vermont, when property is so at- | PATENT. LICENSE. PLEAD. tached and then is sold by the at

ING. tachment debtor, notice of such N. Y. SUPREME COURT. GENERAL sale to the sheriff holding the at

TERM. SECOND DEPT. tachment of the claim of the vendee is to the extent of his interest Charles N. Wing, applt., v. The equivalent to a physical change of Ansonia Clock Co. et al, respts. possession; the latter not being

Decided Dec., 1884. obtainable under the circum stances. 28 Vt., 14; 35 id., 214.

Plaintiff and one H. by written contract grantTherefore defendant took nothing.

ed the exclusive right to use their patent to

the Clock Co., the latter agreeing to pay But it is said that L. acquired royalties on each instrument mauufactured title by virtue of a contract en under the patent. The contract provided tered into with him for the purpose

that on failure to make returns or pay.

ments within a specified time the license of stifling a criminal prosecution

might be terminated. It also provided that against M. upon the forged notes, the Clock Co. should pay at least $8,000 and that therefore Li's title was per year by way of royalties, and if it void against bona fide creditors of

failed to do so should forfeit the right to

manufacture under the patent “if the parM. There was evidence that some

ties of the first part shall so elect by a of the notes which L. paid were notice in writing to that effect within ten forged and that the inducernent days after the close of any year in which which led him to agree to make

less than” that suin is paid. Held, that

the only right of election reserved to the such payments was a feeling of

patentees related to a forfeiture and not to compassion and kindness for M.

the payment of the $8 000 ; that no conand for his daughter, who was tingency was provided for in which they M.'s wife, and the hope that if the could require more than the schedule rates

of royalties. notes were paid a prosecution would be less likely to take place. Appeal from judgment entered But there was no agreement that on order sustaining demurrer to L. or any creditor should refrain complaint. Plaintiff and one H., from prosecution, or that the notes who were owners of a patent for should be destroyed, or any evi- the manufacture of Bell's pianodence with held. No prosecution fortes, entered into a written conhad been commenced or threat tract with the Clock Co., granting ened. The amount paid by L. ex to it the exclusive right to manuceeded the value of the property facture and sell musical instru

. transferred, and no motive of gain ments under the letters patent induced him to enter into the con during their existence.

In contract. 2 Metc. 53. This case is sideration whereof the Clock Co. like Marbury v. Brooks, 7 Wheat., thereby agreed to pay a royalty 556; 11 Wheat., 78.

on all musical instruments manuJudgment affirmed.

factured under the contract quarOpinion by Landon, J.;Learned, terly after a specified date, and to P. J., and Bockes, J., concur. make true returns quarterly. The

contract provided that “ upon fail

« AnteriorContinuar »