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less assemblage of persons, not its of which the delivery of plaintiff's employees, but with whom some stock was delayed until August of its employees joined and took 4th, 1877, plaintiff cannot recover. part. The Court charged that, “If Also, "That if the cause of the defendant's employees were will. detention of plaintiff's stock arose ing to carry on the business, and from forcible resistance of late emother men who have been men- ployees of defendant, defendant tioned sought to prevent those who having at all times a sufficient were willing to work from carrying force of faithful employees to have on its business, and continuing operated and run the road, had it their labor, and it was suffi- not been for such forcible resistcient and effective to prevent those ance, then the plaintiff cannot re. who were willing from going into cover." the employ of the company; and The Court instructed the jury this combination was strong and in substance, that if the strike powerful, strong in its moral force, originated with persons not in the strong in its physical powers to employ of defendant, and they overmaster and control the situa- carried on and controlled it, plaintion, and prevent the company from tiff could not recover; but if it bringing out its engines and start originated with the employees of ing out the trains, it is no excuse for defendant, was maintained by the delay; because if the strikers them and terminated when they were defendant's employees, they saw fit, plaintiff could recover even represented defendant; they were though they were assisted by some its servants, its agents, and their outside persons who sympathized acts were the acts of the corpora- with them, Exceptions taken to tion.' [The Court had just been charge and refusals to charge. speaking of the striking employ

Geo. L. Lewis, for plff. ees, and by the expression, “the other men who have been mention Green, McMillan & Gluck, for ed," doubtless referred to such deft. striking employees. Opinion by Held, That upon the evidence it Haight, J.]

became a question of fact as to Defendant requested the Court whether or not the strike origito charge, “that if the jury be- nated with and was carried on by lieve from the evidence that on the defendant's employees; that and after the 21st day of July, this question was properly sub1877, the railroad tracks, depots mitted to the jury ; and that deand rolling stock of defendant were fendant was not excused from liataken forcible possession of by a bility by reason of the forcible body or bodies of armed men, resistance of its employees. 65 among whom were some of its em- Ind., 188; 20 N. Y., 48; 17 N. Y., ployees, and that they continued 362; 73 N. Y., 543. to hold possession thereof by force Illinois & St. L. RR. Co. v. of arms for several days, by reason / Juntegen, 84 Ill., 36, distinguished.

habeas corpiis.

Motion denied and judgment for of law and void ; that the offense plaintiff on the verdict.

was a misdemeanor, and punishOpinion by Haight, J.; Smith, able only by imprisonment in a P. J., and Bradley, J., concur; penitentiary or county jail for not Barker, J., not sitting.

more than one year, or by a fine of not more than $500, or by both,

as provided by section 15 of the ASSAULT.

Penal Code.
N. Y. COURT OF APPEALS. James A. Lynes, for applt.

Clarence L. Barber, Dist. Atty., The People ex rel. Devoe, applt., for respt. v. Kelly, sheriff, respt..

Held, No error; that as the Decided Oct. 31, 1884.

Court of Sessions exceeded its

jurisdiction its judgment cannot Relator was convicted of assault in the third

degree and was sentenced to imprisonment be enforced; the order therefore in State prison for one year. Held, That of the county judge and the judgthe offense was punishable only by fine or ment of the General Term, so far imprisonment in a penitentiary, or county

as they direct the judgment of the jail; that as the Court of Sessions exceeded

Court of Sessions to be carried its jurisdiction its judgment could not be enforced; but the conviction being valid, into effect, should be reversed. relator was pot entitled to a discharge on The conviction is, however, still

valid, and the prisoner is not enModifying S. C. 19 W. Dig., 205

titled to his discharge. He should The relator, after conviction, at be remanded to the sheriff of the Otsego Sessions, of the crime Otsego county, in order that the of assault in the third degree, was Court of Sessions may deal with sentenced to be imprisoned at him according to law. 96 N. Y., hard labor in State Prison for the 188. term of one year. He was after Order of county judge, so far as ward brought before the county it directs the prisoner to be rejudge upon habeas corpus, and manded to the custody of the on return inade by the sheriff that sheriff, and the judgment of the the relator was in custody under General Term, so far as it affirms this judgment of conviction, was such direction, affirmed. remanded, and the sheriff directed Opinion by Danforth, J. All to carry out the judgment of con concur, except Rapallo, J., abviction and sentence. On appeal sent. to the General Term of the Supreme Court the order of the

PARTITION. FORECLOSURE. county judge was affirmed, and it was further ordered that the origi. N. Y. COURT OF APPEALS. nal judgment of the Court of Ses

Cromwell, respt., v. Hull et al., sions be carried into execution.

applts. The Court below held that the sentence was without authority Decided Oct. 31, 1884.

A widow to whom the premises had been | mortgage foreclosed in this action.

devised for her life or while she remained The premises were sold to one M., single brought action for against the remainder men and partition who objected to the title and was was decreed. Held, That if she was not relieved from his purchase. The authorized to maintain the action because referee re-advertised the property not a joint tenant or tenant in common

as before and sold it subject to the the defect was not jurisdictional and that the error in awarding a decree, if any, rights and interests of the children should have been corrected on appeal and of the living children of the testacould not be questioned or the decree im tor. The decree bad not been peached collaterally.

amended, nor did the notice of sale On a re-sale on foreclosure the premises were

sold subject to the rights of children who indicate that the premises were to were not made parties to a former partition be sold with such restriction. suit. There was nothing in the decree or

John A. Mapes, for applts. the notice sale referring to such a restriction. Held, That as the purchaser bought Wilson Brown, Jr., for respt. with notice, paying a less amount on account thereof, he should be required to Held, That if the plaintiff in the complete his purchase and that no amend partition suit was not authorized ment of the decree was necessary.

to maintain the action because not This was an appeal from an or a joint tenant or tenant in common der of General Term, affirming an with the remainder-men, the defect order requiring one G., a purchaser was not jurisdictional, and the deon a foreclosure sale to complete cree, if erroneous, not absolutely his purchase and denying a motion void. The court had jurisdiction by him to be relieved from the of the subject matter of the action purchase on account of defects in and of the parties, and if it deterthe title.

mined incorrectly in awarding to It appeared that in 1855 one L. the plaintiff a relief to which she died, seized of the property in was not entitled, the error should question, which he devised to his have been corrected on appeal. 15 widow so long as she remained N. Y., 617; 56 id., 226; 66 id., 40. single, and upon her death or re The purchaser having bought with marriage he devised the same to notice that the rights of the chilhis five children, and in case of dren not made parties to the parthe previous death of either of tition were outstanding and subthem, to their children. In 1871 ject to those rights, paying a less the widow,as sole plaintiff, brought amount because buying a less esan action for the partition of said tate than the whole, no wrong was real estate, making the survivors done in requiring him to pay for of said children and the issue of a exactly what he bought. An deceased child, who were minors, amendment of the decree was undefendants, but the issue of the necessary. It furnished as it stood living children of the testator were adequate authority for the sale of not made defendants. Upon the the property covered by the mortdecree in that action the premises gage, and as that did not cover were sold to one H., who gave the what the mortgagor did not have,

the sale as made was consistent on which such building stands by a title in with the decree.

fee simple, and the interest of the insured

be not truly stated in the policy, it shall be It was objected that the widow

void. of the testator gave to a RR. Co. a And a condition that no officer shall have right to enter upon the land and power to waive any of the provisions of the maintain its road. It was dated

policy, unless such waiver be endorsed on

the policy, will be deemed waived by deJuly 19, 1871, but was not recorded

livering the policy with knowledge by the until 1882. It did not appear that agent of the true nature of the insured's the partition suit was actually later

title. than the lease, or that the pur

Where the insured and the special adjuster of

the company entered into a written agree. chaser under the decree had any

ment for the appointment of appraisers to notice of its existence. That pur estimate the amount of damage, their chaser while furnishing affidavits

award to be binding on both parties, and

such award was made. Held, That this for the present purchaser does not

amounted to a waiver by the company of its say that he had such notice. The

right to rebuild or repair, and the insured successor of the RR. Co. was made was justified in refusing to permit the coma defendant in the foreclosure suit pany to proceed with the building, and and holds a deed from the mort

that defendant was bound by the award. gagor who was also a defendant. Appeal from judgment entered

Held, That this objection was upon the verdict of a jury in favor not a good one.

of plaintiff. Order of General Term, affirming Action upon a policy of insurorder requiring purchaser to com

ance against fire, which contained plete purchase, affirmed.

a condition that if the insured was Per curiam opinion. All con

not the sole, absolute, and unconcur, except Rapallo, J., absent.

ditional owner of the property insured, or if the property be a

building, of the land on which FIRE INSURANCE. such building stands, by a title in ESTOPPEL.

fee simple, and the interest of the N. Y. SUPREME COURT. GENERAL insured be not truly stated in the

policy, it shall be void. The policy TERM FIFTH DEPT.

stated the building to be the asJoshua J. Fowle, respt., v. The sured's, but the fact was that he Springfield Fire Ins. Co., applt. only held a contract for the pur

chase of the land upon which the Decided Oct., 1884.

building was situated, and had Where the agent of an insurance company is paid a portion of the purchase informed, before issuing the policy, of the

price. Plaintiff informed the sonature and extent of the interest of the insured—e. g., a contract for purchase, -his liciting agent of the nature of his knowledge is imputable to the company, interest, who informed the agent and the latter is estopped from relying of the company (Madison), who upon a condition in the policy, that if the in. issued and delivered the policy to sured is not the sole, absolute, and unconditional owner of the property insured, or, plaintiff. When the policy was if the property be a building, of the land | delivered to plaintiff there was a

name."

paper attached at the right-hand The policy also provided that corner on the face of the policy the company may repair, restore which read: “We have decided or replace the property lost or that the policy should remain in damaged, upon giving notice of your

Signed, “ A. Z. such intention within thirty days Madison."

after receipt of proof of loss. The C. D. Murray, for applt. plaintiff having been informed by W. L. Sessions, for respt. the special adjuster of the com

Held, That the knowledge of the pany that it would not rebuild agent was imputable to the com- under any circumstances, plaintiff pany ; that when it accepted the and the adjuster entered into an risk it had information that the agreement in writing for the apinsured did not own the fee, and pointment of appraisers to estiit would be presumed that it over mate the amount of damage, their looked the condition, and so bad award to be binding on both parforgotten to express the fact in the ties. After the apprisers had propolicy, or that it had waived the ceeded and determined the amount condition, or held itself estopped of loss, the company gave notice, from setting it up. To presume within the time required, of its inotherwise would be to impute to tention to rebuild, which plaintiff defendant a faudulent intent in refused to permit. issuing the policy known by it to Held, That defendant surrenbe invalid. 68 N. Y., 434; 79 N. dered its option to rebuild and Y., 230; 76 N. Y., 415 ; 67 N. Y., is bound by the award. 75 N. 283.

Y., 7. The policy also contained a con Judgment affirmed. dition that no officer should waive Opinion by Haight, J.; Smith, any of the provisions of the P. J., and Bradley, J., concur; policy, unless such waiver shall be | Barker, J., not sitting. endorsed on the policy in writing. Held, That the necessity of such

SUMMARY PROCEEDINGS. endorsement was waived, and, to prevent fraud and injustice, de- N. Y. SUPREME COURT. GENERAL fendant is estopped from raising TERM. FIFTH DEPT. the objection. They took plain

Otis Brown, applt., v. Albert Castiff's money and issued a policy to him with notice of the nature of

sady, respt. his title, and defendant ouglit not

Decided Oct., 1884. to be perinitted to gainsay iis acts

In summary proceedings to remove a tenant when the effect would be to de from possession, instituted before a justice fraud the insured. It affirmed the of the peace, no appeal lies for a new trial

in the County Court, policy to be valid without the endorsement, and plaintiff acted up Appeal from an order of County on such affirmation and paid the Court denying appellant a new trial premium. 14 N. Y., 253.

in that court on appeal from a

.

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