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purchased of defendant through | tity or quantity. 52 N. Y., 550. one B. 100 barrels of damaged By the rule defendant continued sugar, which had been sunk on to be the owner of the sugar in board a vessel, at six cents per question, for it was to be weighed pound, the memorandum of sale and taken the morning after the stating that it was “to be weighed purchase. The sugar was to be in its wet state, water to be drain weighed by the vendor to ascered out," and paid $100 to B. on tain the quantity and determine account of the purchase price. It | the amount of money to be paid, was arrange, that the sugar was and the loss by the rain fell on to be weighed and taken the fol- defendant. Plaintiffs were therelowing morning. During the night fore entitled to receive back the the sugar was damaged by rain money they had paid, and the and in the morning plaintiffs re- verdict is right. fused to receive it and demanded Judgment affirmed, with costs. back the $100, which was refused. Opinion by Dykman, J.; Bar

At the close of the case a motion nard, P. J., and Pratt, J., confor nonsuit was made on the ground that the sale was complete ; that the title was vested in

SURROGATES. plaintiffs and that defendant was not accountable for the subsequent N. Y. SUPREME COURT. GENERAL damage. Thereupon plaintiffs' TERM. SECOND DEPT. counsel stipulated that a verdict

In re John Lynch. in their favor, if any was found, might be set aside and the nonsuit Decided Sept., 1884. granted if the court on delibera

A surrogate has power to entertain proceedtion should conclude that one

ings for the repayment of moneys deposited should have been granted. The by a purchaser at a sale of real estate made case was submitted to the jury,

pursuant to his decree and in a proper case

to grant the relief prayed for. who found for plaintiffs, and a subsequent motion to set aside the Appeal from order of surrogate verdict was denied.

denying application of one W. to L. E. Gilbert, for applt.

be released from his purchase on a Carpenter & Roderick, for

for sale pursuant to decree and for the respts.

repayment of moneys deposited on Held, No error. It is not always said sale. easy to determine who has the Certain real estate was sold by legal right to personal property John Lynch as executor under a after a contract of purchase and decree of the surrogate for the sale, but the rule of the law seems payment of his testator's debts, to be that the title remains un- and W. became a purchaser on the changed and no property passes sale. His bid was $5,325 and he where anything remains to be done deposited 10 per cent. thereof and by the seller to ascertain the iden. 'the auctioneer's fee, besides $105

paid for a search. The search dis- | tain the application and administer closed irregularities in the proceed the proper relief. . ings before the surrogate and also Opinion by Dykman, J.; Baran order of the Bureau of Inspec- nard, P.J., and Pratt, J., concur. tors of Buildings of the Fire Department requiring the owners of the buildings on the premises to HUSBAND AND WIFE. FORremove them. On discovering these

GERY. defects W. presented this petition

N. Y. COURT OF APPEALS. asking to be released and have his money refunded which he The People, respts., v. Ryland, had paid out.

applt. The surrogate refused to enter

Decided Oct. 28, 1884. tain the proceedings and denied the application on the ground that If it appears that a wife was not urged or

drawn to the commission of a crime by her he possessed no power or jurisdic

husband, but was inciter of it, she is liable tion to grant any relief.

as well as he. J. H. Cook, for applt.

On the trial of an indictment for forgery, in F. E. Blackwell, for respt.

the alteration and raising of a check, it Held, Error. Surrogates have

appeared that defendant, a married woman,

suggested the idea, procured the check by power to direct the disposition of

false representations, and delivered it to real estate, of real property and her husband; that it was altered in her interests in real property of deced presence, and that she received part of the ents for the paynient of their debts

proceeds of the crime. Held, That she was

liable as a principal. and funeral expenses and the disposition of the proceeds thereof. The prisoner, with her husband Code Civ.Pro., $ 2472, sub. 5. They and one W., was indicted for the may also exercise such incidental crime of forgery in the third depowers as are necessary to carry gree, and on a separate trial was into effect the powers conferred convicted. The evidence showed expressly. Id., $ 2481, sub. 11. that defendant, her husband and These provisions clothe these of- W.combined and co-operated in the ficers with powers to make all nec commission of the crime, which essary orders to carry into effect consisted in altering a check by their decrees of sale, and at least changing the name of the payee, to compel an executor to execute and by raising the amount, obtain a deed in consummation of the ing the money upon it. sale or to pay back to a purchaser proved that defendant suggested his deposit paid at the sale. This to her husband and W. the idea of seems to be sufficiently clear under obtaining the check, and that she the provisions of the Code Civ. went out with her husband and Pro., even if it was not so before. returned after an absence of four See 88 N. Y., 309.

hours, with a check for six dollars, Order reversed and proceedings which she had procured, and deremitted with directions to enter- ' livered the same to her husband,

It was

and this check was altered in her inciter of it, she is liable as well as presence. Defendant obtained the he. 77 N. Y., 413; 82 id., 233. check upon representing that she The court was also requested to wished to purchase it because the direct the jury to acquit the depost office was closed, and she fendant, on the ground that there could not obtain an order there, and was no evidence in the case tendshe desired to send it that evening ing to prove that she committed to her sister or mother in Philadel- any unlawful act, except that given phia. Defendant's husband was by W., her accomplice, and he was not present when she procured the not corroborated. The request was check. It was also proved that refused. Aside from the testimony she received a considerable por- of W., it was proved that defendtion of the avails of the altered ant originally applied for and obcheck as her share for her partici- tained the check; that it was alpation in the crime. At the close tered, and as altered the money of the testimony defendant's coun- obtained upon it. sel requested the court to direct Held, That the request was prothe jury to acquit the defendant perly refused, as the testimony on the ground that she was under tended to connect defendant with the coercion of her husband at the the offence, and thus corroborated time the offence was committed, W.'s evidence. and that all she did, viz., the de It was claimed that defendant livery of the check to her husband could only be prosecuted as an and subsequently receiving a part accessory before the fact. of the proceeds of the forgery, Held, Untenable; that she was a was done in her husband's pres- principal in the transaction from ence, and the presumption of law the beginning, and as such was was, that she acted under his con- chargeable as the maker of the trol and direction. This request instrument. was refused and an

an exception Judgment of General Term aftaken.

firming judgment of conviction, Peter Mitchell, for applt.


Opinion by Miller, J.; all conPeter B. Olney, District Attor

cur except Rapallo, J., absent. · ney, for respt. Held, No error. While it is the

LEASE. CHATTEL MORT. rule that whatever of a criminal

GAGE. nature a wife does in the presence of her husband is presumed to be N.Y. SUPREME COURT. GENERAL compelled by him. 1 Bish. Cr.

TERM. FIFTH DEPT. Law (7th Ed.) $ 359. This presump

Mortimer F. Reynolds, applt., tion is prima facie and not con

v. DeWitt C. Ellis, assignee, et al., clusive, and if it appears that she

respts. was not urged or drawn to the offense by her husband, but was an Decided Oct., 1884.

A lease giving the lessor a lien, as security signee at once took possession of for any rent due and unpaid, upon all the

the store and contents by virtue goods and chattels which may be upon the demised premises belonging to the lessee,

of the assignment. The lease was or to any one holding or claiming the prem- filed the next day. ises under him as assignee or otherwise, J. A. Stull, for applt. and authorizing the lessor to take and sell John. M. Davy, for respts. the goods in the same manner as upon default in a chattel mortgage, is equivalent to

Held, That although no title to a chattel mortgage, although no title passes the goods passed by the provisions to the lessor, but only an equitable lien or of the lease, and it was not theremortgage is created ; and such lease must

fore a chattel mortgage properly be filed according to the provisions of the statute, otherwise it will be void as to cred

so called, but only an equitable itors, &c. So Held, as against an assignee mortgage or an equitable lien was for benefit of creditors who took possession thereby created, yet it was equiv

of the goods before the filing of the lease. alent to a chattel mortgage, and The lessor not having acquired an actual lien by taking possession prior to the assigneee,

not having been filed pursuant to his equities are not superior to the other

the statute it was void as against creditors represented by the latter.

the assignee. 65 N. Y., 459.

If Appeal from judgment entered plaintiff has but

but an equitable upon decision of Special Term, lien, and no actual lien, then his dismissing plaintiff's complaint. interest in the property is not so

Action brought to enforce the great as it would be if he were a provisions of a lease executed be- mortgagee having the legal title. tween plaintiff, as lessor, and de- If a mortgage conveying title is fendant Van Dake, as lessee, by void as to creditors, upon what which it was agreed that the lessor principle can it be claimed that an should have a lien, as security for instrument transferring a less inall the rent, &c., due from the terest would not be void ? Ordi. lessee, upon all the goods and narily the greater includes the chattels which are or may be on less; and an instrument conveydemised premises belonging to the ing the title includes one which lessee, or to any one holding or conveys but an equity. claiming the same under him as Before acquiring an actual lien assignee or otherwise, and such by taking possession of the proplien may be enforced on non-pay- erty it passed into the hands of ment of any of said rent, &c., by the assignee. It is his duty to the taking of such property and a prosecute and defend for and on sale thereof in the same manner as behalf of the creditors, and to proin the case of a chattel mortgage tect their interest in the assigned upon default, &c.

The premises property. In the absence of any consisted of a store, which Van actual lien upon the property, the Dake occupied until January 5, equities of the creditors are just 1881, when he made a general as as great as those of plaintiff, and signment to Ellis for the benefit of the court has no power to prefer his creditors; there being rent due one creditor over another. and unpaid at that time. The as Judgment affirmed.

Vol. 20.—No, 3b.


Opinion by Haight, J.; Smith, to whom he put hypothetical quesP. J., and Barker, J., concur; tions based upon assumed facts as Bradley, J., concurs in result. to the services rendered, and call

ed for their opinions as to their

value, which they accordingly gave. EVIDENCE. ATTORNEYS.

Defendant, on cross-examination, N. Y. SUPREME COURT. GENERAL put questions to them based upon TERM. FIFTI DEPT.

assumed facts which varied in some

particulars from those embraced Henry D. Tucker, respt., v. Al- in plaintiff's hypothetical quesfred Ely, applt.

tions, and the witnesses gave their Decided Oct., 1884.

opinions accordingly. The court

held that defendant, by taking A party by cross-examining his opponent's the valuation of plaintiff's wit

witnesses in reference to the same matter embraced

nesses in answer to his hypothetithe direct-examination does not make them his own but is entitled to cal questions on cross-examination call witnesses to contradict them. So held, made them his own; that consewhere defendant put questions to plaintiff sequently he had four witnesses witnesses based upon assumed facts which

on that subject, and that he could varied in some particulars from those embraced in plaintiff's hypothetical questions,

not be allowed to contradict them. and they gave their opinions as to the value H. D. Tucker, in person, for

of the services upon such assumed facts. respt. Where, in a suit originally commenced in

B. F. Maxson, for applt. justice's court, plaintiff gave evidence as to value, defendant was held entitled to give

Where the cross

Held, Error. evidence in rebuttal though the question of examination is in reference to new

value was not put in issue by the answer. matter wholly disconnected from A promise by an attorney to repay a sum of

that embraced in the direct-examimoney which his client had been compelled to pay by reason of his mistake or negli nation, as to such new matter the gence is founded upon a good considera cross-examiner makes the witnesstion, and is a proper subject of counter es his own. 15 Wend., 419. But claim in a suit for services.

here the cross-examination was in Appeal from judgment entered reference to the same matter, viz., upon verdict and from order deny the value of the services. Defending motion for new trial made upon ant had the right to test the corthe minutes.

rectness of the witnesses' concluThe action

originally sions, and if possible to vary or rebrought in a justice's court to re duce their estimate. cover for professional services rend The court below held, on motion ered as an attorney at law. The an for new trial, that there was no issue swer denied the retainer or em as to the value of the services, and ployment, and alleged that what no evidence in that behalf was necever services were performed were essary on the part of plaintiff or rendered gratuitously. On the admissible on the part of defendtrial in the County Court plaintiff ant. called four attorneys as witnesses, Held, Error; that as plaintiff


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