Imágenes de páginas

final order of a justice of the peace

of a debt claimed to be due and owing in summary proceedings.

from parent to child for services and for

money loaned, and was antedated, and an Appellant, as landlord, institu

action by the administrator of a third ted proceedings before a justice to person was then pending against the parent, remove respondent from the de upon which judgment was subsequently mised premises, and, apon a trial

entered ; and such administrator also re

covered a judgment for costs against him had, the jury rendered a verdict in

upon the reference of a disputed claim favor of respondent, and the justice made by said parent against the estate ; made a final order adjudging costs Held, That the court properly refused, under against appellant. The notice of

the circumstances, to allow such amend

ment to be made nunc pro tunc, so as to appeal demanded a new trial in

prejudice the rights of the administrator, the County Court, but the court and that the latter's judgments were entitled held that it was not authorized by to priorty. the Code.

Appeal from judgment entered Daggett & Norton, for applt. upon decision of the Special Term.

E. E. & G. W. Harding, for The action was brought by plainrespt.

tiff as a judgment creditor of Jacob Held, That the decision of the Combs to have a certain deed exeCounty Court was correct. Code,

Code, cuted by the latter to James L. SS 3068, 3045, 2260, 2249.

Combs adjudged fraudulent and Order affirmed.

void, and that her judgment may Opinion by Haight, J.; Barker, be declared a lien npon the premiP. J., Bradley and Lewis, JJ., ses conveyed. Plaintiff's judg. concur.

ment was entered upon a statement which read: "This confession of

judgment is for a debt justly due JUDGMENT.

to the said Mary J. Combs, and N. Y. SUPREME COURT. GENERAL the following is a statement of the TERM. FIFTH DEPT.

facts upon which said confession

of judgment is founded : said conMary J. Combs, applt., v. Benj.fession is inade for a promissory F.Bowen, adm’r, et al., respts. note executed by me, the said Decided Oct., 1884.

Jacob Combs, dated January 15th,

1875, for the payment one day A statement upon which to enter a judgment after the date thereof, to said Mary

without action under the Code is not sufficient, where it mereiy slates and sets out

J. Combs, of $750, which sum, a promissory note, executed by the defend with interest thereon to this date, ant to the plaintiff as the consideration of amounts to the said sum of $798.” the indebtedness. The facts out of which

The note was delivered on the the indebtedness arose should be concisely

20th Dec., 1876, and judgment stated. The court may, in a proper case, allow such was entered on the following day.

statement to be amended nunc pro tunc so Plaintiff was the daughter of Jacob as to sustain the priority of the judgment Combs, and claimed that the note entered thereon, as against subsequent valid judgments; but where a note was executed

was given in settlement of a claim the day before the confession, in settlement for work and labor performed and

Vol. 20.-No. 3a.

moneys advanced. At the time of of such judgment nunc pro tunc. the giving of said note, and the 36 N. Y., 631 ; 55 N. Y., 150; 33 confession of said judgment, an N. Y., 409; 27 N. Y., 300. action brought by defendant Bowen But such amendment was, under as administrator of James L. Combs, the circumstances, properly reto recover a debt, was pending fused, as against Bowen. 21 Barb., against said Jacob Combs, in which 152 ; 13 How., 21. a trial was subsequently had, and Judgment affirmed. judgment recovered against the Opinion by Haight, J.; Smith, latter. In the meantime Jacob P. J., Barker and Bradley, JJ., Combs presented a claim against concur. the estate of James L. Combs, which, being disputed, was re

APPEAL. COSTS. ferred pursuant to the statute, and resulted in a judgment in favor of N. Y. COURT OF APPEALS. the administrator for costs.

Carll, respt., v. Oakley et al., Bowen, as administrator, moved

exrs., impl’d, applts. to set aside and vacate plaintiff's judgment, upon the ground that Decided Oct. 31, 1884. the confession did not state the

The acceptance by a party or his attorney of facts out of which the debt arose ; the costs awarded to him by a judgment but the Special Term ordered that precludes him from thereafter appealing he be made a party to the present

from said judgment.

Where a judgment directs the payment to deaction, and that the question be

fendant of costs to be adjusted by the determined therein.

clerk,” the insertion, of the amount thereUpon the trial the court ruled of in the judgment is not necessary in order that said judgment was void, upon

to entitle defendant's attorney to demand

them. the ground that the facts out of which the debt arose were not This action was commenced by stated, and that, consequently, plaintiff, a judgment creditor of a plaintiff could not maintain this bankrupt corporation, to wind up action. The court also refused to its affairs. A judgment was enpermit the judgment to be amend tered April 2, 1881, which affected ed, nunc pro tunc, so as to give it a great number of persons as stock. priority to Bowen's judgments. holders and creditors of the corpoD. C. Hyde, for applt.

ration. Among others there was J. A. Stull, for respt.

a sum due from the appellants here. Held, No error ; that the state- | Notice of the entry and a copy ment upon which the judgment of the judgment were served on was entered did not state the facts their attorney, May 31, 1881. On out of which the debt arose, and June 18, 1881, said attorney proshould have been set aside on cured

amendment of the motion. 12 N. Y., 215.

judgment, and on June 25, 1881, That the court had power in its appealed therefrom. The appeal discretion to permit an amendment I was duly noticed for hearing by



the respondent for the General ploying him, to do all legal acts in the proseTerm of Sept., 1881. The appel

cution of the legal proceeding in which he lants had not printed papers, and

is employed, or required to secure an intel

ligent and just disposition thereof. on Sept. 10, 1881, at their own re In an action brought by the plaintiff to request and with the respondent's cover for services rendered defendant in preconsent, withdrew the appeal.

paring documents used in a legal proceeding

which was prosecuted by the defendant, it Thereafter the appellants' attor

was proposed to be shown that the attorney ney accepted costs, costs having for the defendant in that proceeding had rebeen adjudged to them by the quested the plaintiff to prepare the docujudgment of April 2, 1881, al

ments. This evidence was excluded. Held, though the amount of costs was not fixed, but the receiver of the Appeal from a judgment recov. corporation was directed to pay ered on the dismissal of the plainthem the costs and disbursements tiff's complaint at Circuit. "to be adjusted by the clerk.” The defendant, as the adminisSubsequently, in Dec., 1883, the trator of his deceased son, brought present appeal was brought. proceedings to secure payment for

Benjamin G. Hitchings, for services performed by his son in applts.

his lifetime as referee in certain James H. Stanbrough, for respt. matters.

matters. The plaintiff, who had Held, That the acceptance of been employed as clerk by defendcosts by the appellants precluded ant's son, prepared a statement or them from subsequently appeal. schedule of services performed by ing, 18 N. Y., 481; 4 Abb. Pr., said son, as such referee, which 468.

was used in the proceedings Also held, That the insertion of brought by defendant to recover the amount of the costs in the orig. the fees. This action was brought inal judgment was not necessary by the plaintiff to recover comto entitle the defendants' attorney pensation for the services so rento demand them.

dered in the preparation of such Order of General Term, dismiss statement. Upon the trial it was ing appeal, affirmed.

proposed to be shown that the Per curiam opinion. All con

plaintiff had been requested by cur, except Rapallo, J., absent. the attorney for the defendant in

the aforesaid proceedings to pre

pare the statement. This evi . ATTORNEYS. EVIDENCE.

dence was excluded, and the court N.Y. SUPREME Court. GENERAL GENERAL then dismissed

the complaint TERM. FIRST DEPT.

upon the ground that there was no James R. Foland, applt., v. Mor- proof of employment by the de

fendant. gan A. Dayton, respt.

Henry C. Andrews, for applt. Decided Oct. 8, 1884.

Ira Shafer, for respt. An attorney and counsel has the authority,

Held, Error; that, if the attorarising out of his relation to the party em ney and counsel employed by the

defendant to prosecute the pro profits on their lease for that time. Held, ceedings brought to recover the

That the complaint stated a cause of action. fees of his son as referee employed Appeals from orders overruling the plaintiff to make out the state. demurrers as frivolous. ment, which he did and that was The complaint in each action set used in the proceedings, the defend-forth that plaintiffs were the lessees ant would be liable to compensate of a certain building in New York the plaintiff for the services per- City at an annual rental of $3,750; formed under that authority, for that they had relet the premises the attorney and counsel had the for four years at $6,000 a year, authority arising out of his relation being a profit to them of $2,250 per to the party employing him to do year ; that these companies underall legal acts in the prosecution of took and agreed by their policies the legal proceedings, or required to indemnify against such loss as to secure an intelligent and just plaintiffs might sustain in their disposition thereof. 6 Cow., 383, proprietary interest in the premises 388; 45 N. Y., 628, 635; 87 N. Y., during the time of continuance of 184, 188; 14 Hun, 252, 254; 12 the lease ; that in May, 1883, the Hun, 534; 11 Abb., N. C., 448. premises were damaged by fire and

Judgment reversed and new partially destroyed so that they trial ordered.

were untenantable, and plaintiffs Opinion by Daniels, J.; Davis, and their sub-tenant were deprived P.J., and Brady, J., concured. of the use and enjoyment thereof

from May till October ; that the

rent reserved in and by both of FIRE INSURANCE. PLEAD- said leases ceased for said period, ING.

and these plaintiffs were therefore, N. Y. SUPREME COURT. GENERAL

by reason of said fire, caused to

sustain loss and damages on the TERM. SECOND DEPT.

said lease in the sum of $812.50, Lawrence Carey et al., respts., being the amount of profit upon v. The Northern Assurance Co., their said lease so insured as aforeapplt.

said, which would have accrued to Lawrence Carey et al., respts., May, 1883, and October 9th, 1883,

them between said 29th day of v. The London and Provincial Fire

had not said premises been deIns. Co., applt.

stroyed by fire as aforesaid. Decided Sept., 1884.

The defendants in each case filed A complaint alleged that plaintiffs were lessees

a demurrer, and on motion of of a certain building which they sublet: at plaintiff judgments were entered a profit; that defendant insured their pro on the demurrers as frivolous. prietary interest ; that a fire occurred which Norwood & Coggershall, for rendered the premises untenantable from

applt. May to October, whereby the rent ceased under both leases for that period, and

J. Stewart Ross, for respts. plaintiffs were injured by the loss of the Held, No error; that these com


fied way.

plaints state a cause of action. Defendant made a motion to reThe measure of plaintiffs' loss is quire the guardian to file security the value of the premises subject for costs and the infant made a to the rent, and that value seems motion for leave to prosecute in to have been established by the forma pauperis. Both motions rent they were to receive beyond were heard at the same time when that they were to pay. We have plaintiff's motion was granted and no other facts that would set up a defendant's denied.

No appeal drawback for repairs or insurance was taken from the order granting or any other subject. See 1 Sandf., | plaintiff's motion.

Moses B. Maclay, for applt. In the first condition of both Benj. A. Morrison, for respt. policies it is provided that in case Held, That as defendant has of such destruction by fire of the elected to abide by the order premises that the lease held by the granting permission to prosecute assured shall be by its terms and in forma pauperis it would be in fact canceled, then the company quite inconsistent now to require should be liable to pay in a speci- | the guardian to file security for

costs. Held, That as that contingency Order affirmed, with costs. did not come the condition was in Opinion by Dykman, J.; Baroperative.

nard, P. J., concurs ; Pratt, J., Orders affirmed, with costs. not sitting.

Opinion by Dykman, J; Barnard, P. J., concurs; Pratt, J.,

SALE. TITLE. not sitting


TERM. SECOND DEPT. COSTS. GUARDIANS. N. Y. SUPREME Court. GENERAL The Continental Ins. Co., applt.

John Fogarty et al., respts., v. TERM. SECOND DEPT.

Decided Sept., 1884. Mary Hays, an infant, respt., v. The Knickerbocker Ice Co., applt. Where plaintiffs purchased certain barrels of

sugar of defendant at a specified price per Decided Sept., 1884.

pound, to be weighed and taken the follow

ing morning, and during the night the Where an order has been granted allowing an

same were damaged by rain, Held, That infant plaintiff to sue in forma pauperis, defendant continued to be the owner and from which order no appeal is taken, the

the loss by rain fell on him; that plaintiffs guardian will not be required to file security could refuse to receive the sugar and refor costs.

cover the amount paid by them in the conAppeal from order denying motion denying security for costs. Appeal from judgment in favor

. Action brought by an infant by of plaintiffs, entered on verdict. guardian to recover for personal Action to recover moneys paid injuries.

on a contract of sale. Plaintiffs


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