« AnteriorContinuar »
smaller sum, nor as applying only to the report with the clerk in order to have it
findings. So held, where the referee had
found the facts in question but, by inad2. The giving of a receipt which specifies a vertence, had omitted them from his report.
particular claim only, raises no legal pre The facts were material and necessary to sumption against the existence of another
support the conclusions of law.-Gardiner claim.- Maxfield v. Terry, 99.
et al. v. Schwab et al., 415. RECEIVERS.
5. On an appeal from a judgment entered up
on the report of a referee when the evidence See CORPORATIONS, 11 ; Costs, 1 ; LEASE, 3, is not spread upon the record every pre4.
sumption is in favor of the referee's report,
and the court will, in reviewing the judg. RECORD.
ment, intend that the referee found such 1. A record of the assignment of a written
facts in favor of the party recovering as are instrument preceded by a memorandum
essential to support it. —Talcott v. Smith et referring to tbe book and page where such
al., 562. instrument has been previously recorded is
See ATTORNEYS, 13; OFFICE, 2. a sufficient compliance with the statute and is admissible in evidence.-Putnam Stewart, 332.
REFORMATION. 2. If conveyances are properly recorded
See CONTRACT, 21, 22. memoranda made by the clerk in the proper places, renderivg the records intelligible. RELIGIOUS CORPORATIONS. are within the incidental powers conferred upon the recording officer.-Id.
1. In the absence of any action by the con
gregation fixing the salary of a minister, the
trustees of a Methodist Church have no REFERENCE.
power to enter into a contract of employ. 1. In an action on a draft plaintiff testified
ment of a minister at a stated salary.that defendant was accustomed to overdraw
Landers v. The Frank St. J. E. Ch., 20. his account to purchase cheese for R. & S. and would make it good by drafts on said
2. Under the laws and regulations of the firm ; that when he began to draw time
Methodist Church the minister renders serdrafts security was demanded and he was
vice, not on an agreed salary, but on an distinctly told that he would be held first allowance for support to be raised by vol. as drawer, and that after the failure of R. untary contributions. The entire policy of & S. defendant said that he was abundantly
the church is opposed to the existence of a able to pay these drafts. Defendant testified
contract relation between the minister and that R. & S. gave plaintiff their bond with
the society.-Id. surety conditioned to pay these drafts, and that defendant told plaintiff's cashier' that
REMEDIES. he could not afford to take any risk on the drafts. Held, That the referee's finding in
See SALE, 10, 11. favor of plaintiff being on evidence both contradictory and admittivg of contradic
REPLEVIN tory inferences must control. — The Herkimer Co. Natl Bk. v. Rust, 149.
1. Where in an action brought in a justice's
court to recover the possession of a chattel, 2. Where the referee's findings cover all the the value as fixed by the pleadings exceeds
issues and are sustained by the evidence a fifty dollars, the appellant is entitled to a refusal to make other or additional findings new trial in the county court, although no is correct. — The Bank of Attica v. The value was fixed or assessed by the justice Metropolitan Nat'l Bk., 156.
in the judgment rendered. - Reynolds v.
Suick, 476. 3. When a referee makes his report within
the statutory time and notifies the attorneys 2. A defendant who, in an action to recover that it is ready and at their disposal and a chattel, obtains a verdict for the return also of the amount of his fees, it is a sutti. of a portion of the goods replevied, excient delivery of such report to prevent the cceding $50 in value, as assessed by the forfeiture of his fecs by the termination of jury, is entitled to costs under $ 3234 of the reference under $ 1019 of the Code of The Code, although the plaintiff may also Civil Procedure, and in such a case it is be entitled to costs, and although there was not necessary for the referee to tile his but one count in the complaint and but one
cause of action set forth.-Ackerman et al. 6. The sale, by written agreement not under
seal, of standing timber, with the intention
that the vendee should cut and remove the
same, is sufficient to pass title to the grow-
ing trees, and changes them from real to
personal property as between the parties.-
Lyon v. Wing et al., 144.
7. Where plaintiff's possession of a lot of
land was such only as was necessary to
enable him to take off the standing trees,
Held, That such possession was not notice
of plaintiff's rights to a subsequent pur-
chaser of the lot.-Id.
8. An agreement to sell personal 'property,
followed by delivery and acceptance, passes
title unless by some express condition title
the common council may increase the sal 147.
9. Upon a contract for the purchase of a.
horse, it was agreed that the purchaser
should take and use the horse, and if it
drove to suit him he was to keep her and
pay therefor a certain sum. Before the
barley raised upon his farm according to the seller, his satisfaction with the horse
such action is pending he cannot divide
his action and sue upon contract to recover
sponding in all respects with that required replevin proceedings.— Wile et al. v. Brown-
11. Section 1719, Code Civ. Pro., furnishes
no authority for such procedure.-Id.
See BAILMENT ; FRAUD, 4, 14 ; WARRANTY.
1. The Board of Education of a school dis-
trict organized under Title 9, Chap. 555,
Laws of 1864, has power to employ legal
required to have the whole amount of of Union Free School Dist. No. 9, 133.
See Taxes, 5, 6.
of sugar of defendant at a specified price 1. Proof which merely shows discrepancy in
See CONTRACT, 24 ; EVIDENCE, 26.
order the payment of fees previously ad-
justed. --Hall et al. v. The U. S. Reflector
the assignee of all the interest of a legatee
3. When the plaintiff in an action in which
an attachment has been issued has served
liable for the fees and expenses of the
sheriff incurred while retaining the prop-
upon it for fees previously accrued.-1d.
not available as a defense but establish an foreclose a lien upon property attached for
ciency, cannot avail himself of the remedy
provided by Chap. 462, Laws of 1884, and
procure an order directing such fees to be
affirmatively appear in the motion papers
that the applicants became indemnitors be-
interest in the firm gave him certain prom Hayes v. Davidson, 467.
1. The defendant, who was a partner in bus-
iness of plaintiff, said of the latter to a
“He is a thief. When I
came down town this morning my book-
keeper reported to me that he had gutted
the drawer." In an action for slander.
lleld, That the words first uttered imputed
a crime, and that whether the qualification
added so reduced the charge as not to in-
clude the crime of theft, was properly sub-
mitted to the jury.- McGibbon v. Young,
a person has scuttled a ship to get the in-
for $3,000 damages is not excessive.-Id.
of 1884, to a judge adjusting the fees of a 4. The husband is a proper party defendant
the aid of subrogation ; to do so he must SPECIFIC PERFORMANCE.
have paid upon request, or as surety, or 1. When a person who has contracted to pur
under some compulsion made necessary for chase real estate is unable, after making
the protection of his rights. -Acer v. Hotchproper efforts, to obtain a search of the kiss, 452. title to such property before the time fixed
2. Defendant on taking an assignment of a by the contract for the completion of the
mortgage gave to the mortgagor a bond purchase, he is entitled to a reasonable ad
conditioned that he should pay a prior mortjournment to enable him to procure such search ; and, if such adjournment is re
guge held by plaintiff. The transaction was
induced by fraudulent representations. fused by the other party without a proper
Thereafter, with full knowledge of the reason, the first party may refuse to accept
fraud, he foreclosed the morigage, bougbt the deed at that time; but after a reason
in the premises and paid plaintiff an inable delay spent in searching the title he
stalment on his mortgage then due, claiming may demand the completion of the con
that he did so as surety and claiming to be tract, and if it is refused by the other party
subrogated to that amount. Held, That he may maintain an action, if commenced
under his contract defendant was bound to without delay, to enforce its specific performance, provided that he compensates
pay and discharge the mortgage, and that
his claim is not tenable.-ld. the other party for the delay and no circumstances have intervened affecting either
SUBSTITUTION. the situation of the defendant or of the property, rendering it inequitable to afford
See SHERIFFS, 5, 6. such relief. – Willis v. Dawson, 376.
SUMMARY PROCEEDINGS.. 2. Specific performance will not be decreed
where the only result would be to compel | 1. When summary proceedings to dispossess a defendant to incur useless experise without tenant are regularly prosecuted, the remedy any practical advantage to plaintiff. In no of the defeated party is by appeal from the case is a party entitled to a judgment for final determination, and not by an action specific performance absolutely, but the ap to restrain its enforcement. --Sheehey v. plication is addressed to the discretion of Kelly, 78. the court. — Murdtfeldt et al. v. The N. Y., W. S. & B. RR. Co., 534.
2. In an action to restrain the enforcement of
a final determination in summary proceedSee ADVERSE POSSESSION.
ings to recover the possession of real prop
erly, adjudging the plaintiff to be wrong. STATUTES.
fully in possession of such property under
a lease from a third person, the subjectSee OFFICE, 3-8.
matter involved is the lease and not the
property itself, although the claim of the STATUTE OF FRAUDS.
plaintiff is that his lessor, and not the de.
fendant, is the owner of the property, and See CONTRACT, 11, 14, 20; FRAUD, 1, 2, 8, 9, a perpetual injunction is asked for; and the 11, 12, 14, 15, 20.
greatest allowance that can be granted, if
any, is five per cent. of the value of such STOCK.
lease.-Id. See EVIDENCE, 27, 28.
3. It is doubtful whether any extra allowance
can be granted in such a case. — Id. STOCK EXCHANGE.
4. Where a final order made in summary pro1. The provisions of the constitution and the
ceedings is reversed on appeal the successlaws of the New York Stock Exchange are
ful party is entitled to tax costs, although the order of reversal gives none.
:-Harrison obligatory upon its members as a contract. · Weston v. Ives, 255.
v. Swart et al., 271. 2. The proceeds of the sale of a member's seat
5. Summary proceedings may be instituted cannot be appropriated to the payment of
under $ 2232 of the Code, to remove a persuch debts as are, by the constitution and
son who holds over and continues in poslaws excluded from participating therein,
session of real property after it has been nor has the governing committee power to
sold by virtue of an execution against him, admit a claim on such a debt.-Id.
and a title under the sale has been perfected.
-Getting v. Mohr et al., 367.
See APPEAL, 1 ; LEASE, 8.
1. Defendant and two other persons were en1. One who is only a volunteer cannot invoke gaged in playing ball on Sunday, on private
grounds, which were enclosed on all sides found a balance in his hands of $600 ; that by a high board fence. They made no noise his account began with an item “balance nor disturbed the peace. Tield, That it was from last year $831.92 ;" that this amount not a violation of 265 of the Penal Code. had been spent by him during the previous - The People v. Dennan, 514.
year and was not on hand. Held, That
evidence to show that the auditing board SUPERVISORS.
knew of this fact was admissible to im
peach the certificate ; that the item as to the See CERTIORARI, 4 ; ESTOPPEL, 2; POOR; balance on liand was of no force against his SURROGATES, 4, 5.
sureties and that the sureties were not lia
ble. -Id. SUPPLEMENTARY PROCEEDINGS.
5. An undertaking for judgment and costs 1. Under 8 2435, Code, an order in supplemen was given on appeal to the Court of Appeals
tary proceedings is justified by the return by defendants in an action of the defendant unsatisfied of a second execution regularly B. against this plaintiff. That Court issued on the judgment, though such order
affirmed the judgment. Plaintiff allowed be issued more than ten years subsequent the statute of limitations to run against one to the return of the first execution.- Levy surety. In an action by him upon the unet al. v. Kirby et al., 347.
dertaking against the other surety, Held,
That this was no defence to the defendant, 2. Under 8 2447 of the Code an order directing
against whom the statute had not run.a third party to deliver property of a judg
Staples v. Gokey et al., 564. ment debtor in his hands to plaintiff can only be made where the right to the posses See ABANDONMENT, 4; APPEAL, 15; INsion of the property is not substantially dis
DEMNITY, 2. puted. -Hayes v. McClelland, 393.
SURROGATES. 3. So, where the Recorder of Cohoes had in
his hands moneys deposited with him by 1. When a petitioner presented to the Sur. defendant to secure his release from jail, to rogate a petition asking for the sale of real which he had been committed as a disor estate of the decedent to pay debts, where. derly person, although the Statute required in it appeared that such claim had been a bail bond and did not recognize a deposit rejected by the executor and had not been in such cases; but the Recorder formally adjudicated, and it not appearing that declared the money forfeited to the city, there were
any other claims or debts and now insists that he holds it for said against the estate, Held, That under this city, Held, That an order under $ 2447 state of facts the Surrogate had no juris. requiring him to pay over said deposit was diction of the subject-matter ; that he improper.-Id.
had no power to adjudicate upon a claim
rejected by an executor or administrator.-. See DIVORCE, 3 ; EVIDENCE, 17; HUSBAND In re estate of Akin, 24. AND WIFE, 2.
2. A surrogate has power to entertain proSURETYSHIP.
ceedings for the repayment of moneys
deposited by a purchaser at a sale of real 1. A surety on an undertaking given by the estate made pursuant to his decree and in a
plaintiff in a replevin action may be per. proper case to grant the relief prayed for.-
3. An omission or error in a final settlement fault and prosecuting the action in the
had in surrogate's court cannot be corlatter's name. -Hoffman et al. v. Sleinau et
rected in a collateral proceeding.–Taylor al., 122.
v, Palmer, 267. 2. Whether the surety will be able to prose
4. The duty imposed upon Supervisors by cute the action successfully or not is not a
§ 31 of the Code is performed when they matter to be considered upon an application
furnish one proper room, &c., in their by him to be allowed to proceed with its
county for a court of record.— The People ez prosecution.-Id.
rel. Westbrook v. The Board of Suprs. of
Montgomery Co., 423. 3. To render the sureties on an official bond liable for a default of their principal it must
5. And although by $ 2505 of the Code a
Surrogate must also execute the duties of appear not only that such principal was in
his office at such other places within his debted to the town, but that such indebted.
county as the public convenience requires, ness arose by reason of not accounting for
he cannot (after a room has been furnished moneys actually received during the term
as aforesaid in a certain town) order the for which they were bound.
Kellum v. McFarland et al., 331.
Sheriff to provide him another room in
another town and make the expense a 4. In an action on the bond of an overseer of
county charge.--Id. the poor it appeared that the auditing board See ExECUTORS, 2.