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1. Personal property of plaintiff was levied
on to satisfy his taxes ; before sale plaintiff offered to pay the taxes, and the col. lector refused to take the money unless plaintiff paid other taxes, which plaintiff was not bound to pay. Held, A sufficient tender to discharge the lien of the levy, even though plaintiff did not actually offer enough money to pay the tax and the collector's fees; and one who, with knowl. edge of such tender, purchased at the sale got no title. - Jewett v. Lamphier, 222.
9. A còntract entered into by a County Treas
urer for the publication of the tax list at $2 for each piece of land to be sold is beyond the scope of his authority and not binding upon him in his official character nor upon
the county.-Id. 10. The decision of the assessors of the city
of Albany, under Ch. 284, Laws of 1881, is not conclusive as to the value of property, and an appeal lies to the Supreme Court, under Ch. 269, Laws of 1980. The controlling consideration, in estimating the value of a business structure, like a bridge, is its earning capacity.— The People ex rel. The A. & G. Bridge Co. v. Weaver et al.,
565. 11. So far as taxation for State purposes is
concerned, & 3, of Chap. 471, Laws of 1853, is repealed by Chap. 361, Laws of 1881.- The People v. The Gold & Stock Tel.
12. In an action to recover a tax levied under
the act of 1881 interest is not recoverable ; the penalty given by the statute as damages
is a substitute for interest.-Id. See ASSAULT, 2; CERTIORARI, 4 ; CORPOR
ATIONS, 4; DISCOVERY, 4.
See Taxes, 11. TENANTS IN COMMON. See LEASE, 5, 6 ; PARTITION, 2,
2. The tax for 1874 on certain premises was
assessed to a resident of the town in which they were situated, and was returned uncollected. Held, That the tax was, in 1875, chargeable only against the land assessed.
-Id. 3. The County Treasurer has no authority to
determine what sum is applicable for investment as a sinking fund under 84, Ch. 907, Laws of 1869, as amended by Ch. 283, Laws of 1871. That sum must be fixed before the money is paid over to the treas. urer.-In re petition of Clark v. Sheldon,
274. 4. A petition asking that the treasurer be re
quired to invest for a sinking fund under said act a sum less than thc amount of all taxes paid over and above school and road
taxes will not be granted.-Id. 5. An incorporated seminary of learning does
not waive or forfeit the exemption from taxation given by the statute by leasing the premises during the usual summer vacation for a boarding house. — Temple Grove Sem
inary v. Cramer et al., 382. 6. Unless the term of a lessee of such prem
ises is outstanding when the tax is imposed and the sale can take effect on his interest in the unexpired term no tax can be im
posed on the premises.-Id. 7. To entitle a party to a mandamus under
Chap. 388, Laws of 1884, to compel the Comptroller of the City of Brooklyn to repay to him moneys paid by him on account of void sales for non-payment of taxes, he must show affirmatively that the sale was void for the failure of the assessors to verify the roll, and that the payments were made on account of the purchase. – The People ex rel. Andrews V. Brinkerhoj, 391.
See SALE, 2–4; Taxes, 1.
1. Presumption of title to real estate arises
from actual possession, and to make prima facie proof of the fact it is necessary to show title derived through some person in such actual possession. · Gooding v.
Richards et al., 543. 2. The fact that certain wild lands adjoin
plaintiff's farm, in the absence of evidence that they were made subservient to the uses of the farm, does not, by relation, extend plaintiff's actual possession to the wild lands.-Id. See ADVERSE POSSESSION ; ASSIGNMENT FOR
CREDITORS, 2; COMMON CARRIER, 4; CONTRACT, 1: DEEDS, 9 ; SALE, 5-9.
8. The provision of $ 6, Chap. 65, Laws of
1878, is a limitation for the protection of the owners of property advertised for taxes, and not an authority to the Treasurer to subject the property to expenses for adveriising beyond the sum fixed by Chap. 831, Laws of 1869. The two acts are to be construed together.-Crouch v. Hayes, 491.
Vol. 20–No. 26d.
1. An action cannot be maintained by a tax
payer under Chap. 161, Laws of 1872, or § 1925 of the Code, against a bondholder who is a mere private individual doing or threatening no special injury to the town. - Alvord v. The Syracuse Sargs. Bk. et al., 153.
2. A statement in a petition under the General rights, defendant is liable, notwithstanding
Bonding Act of 1869 that “the under he assumed to carry on the business in his signed, representing a majority of the tax firm's name on his partner's account.payers,” accompanied by a verification Champlin et al. v. Stoddart, 223. stating the signers are a majority, is suffcient to confer jurisdiction on the county
2. In such case the measure of damages judge. - The Town of Solon v. The Williams. adopted was the price realized by defendburgh Sargs. Bk., 524.
ant from bis sales, less what it would have
cost plaintiffs to make and vend the same 3. The adjudication is based on the signatures quantity. Held, No error.-Id.
to the petition and the consents given dur. ing the pendency of the proceedings, and 3. Proof of advertising done by plaintiffs is if at the close of the proceedings a major
admissible.-Id. ity have consented the county judge must so adjudge.-Id.
TRESPASS. 4 The statute does not require that the order 1. In an action of trespass plaintiff made a
for publication of the notice shall be in prima facie case by proving his recent imwriting or be entered.-Id.
provements and acts upon the land, and
defendant's ofier to prove that he had been 5. The words " assessment roll” as used in
in exclusive possession of the premises for the act have reference to the roll as verified
the last 19 years was excluded, on the by the assessors, and not to the assessment
ground that the inquiry must be confined as equalized.-Id.
to the last year.
Held, Error.—Burk v. 6. Bonds issued under that act are not invalid
Quinn, 211. because not sealed ; nor are they rendered
2. It is the duty of the owner of land when so by the addition of seals by some inter
he discovers cattle trespassing to drive mediate owner without fraudulent intent ;
them out, so as to prevent all avoidable innor by the fact that they are payable within
jury, and if he neglects to do so he cannot thirty years from the date of delivery.-Id.
recover for damage subsequently commit7. Where a town continues for several years
ted.- Woodmansee v. Kinnicutt, 512. to levy and pay the interest on its bonds,
3. The measure of the damages is the value takes no steps to review the determination
of the grass destroyed in the condition it of the county judge and permits innocent
was in at the time of the injury, not the purchasers to become owners thereof, it is
value of the hay. And, therefore, it is not estopped from requiring the bonds to be
proper to ask the plaintiff what rowen or surrendered for alleged defects in the mode
second crop hay was worth that fall per in which they were issued.-Id.
ton.-Id. TOWN INSURANCE COMPANIES. 4. A party for whom work is being done
under a contract is not liable for a trespass 1. Where different parties claim an award by a sub-contractor on adjoining lands made for the same loss and there is a
under the direction of the contractor where reasonable doubt as to which party is en he himself does not authorize or direct the titled to it the refusal of the directors to
act.- Murdtfeldt et al. v. The N. Y., W. S. make an assessment and pay the award & B. RR. Co., 534. one of them is not a “wilful refusal ” within Chap. 739, Laws of 1857.- Smith v. 5. In an action to recover damages for injury Robbins et al., 301.
committed by cattle trespassing upon plain
tiffs' land, plaintiffs and other witnesses 2. Before the making of such an assessment
were permitted to testify, in the absence of could be claimed as a duty plaintiff must
defendant, after describing the nature and show, under $ 7, that the loss exceeded the
extent of the injury, that “I would put or cash funds of the company.-Id.
assess the damage to the oats at from $6 to 3. The decision of the committee of reference
$8,” and the justice rendered judgment for appointed under $ 6 by the county judge is
the smaller sum. Held, That this was not final only as to the amount of the loss and
legal proof of the amount of damages does not preclude the company from any
plaintiffs were entitled to recover.- Dimick defence it may have or take away the right
et al. v. Haskins, 567. to a jury trial.- Id.
1. If the declarations of a party may be reSee HIGHWAYS, 4, 5, 13.
ceived to raise a trust or create an interest
in lands in another they must be clear and TRADE SECRET.
explicit, and point out with certainty the
subject-matter and extent of the beneficial 1. A cosmetic, made and sold by defendant's interest.— Crouse et al, v. Frothingham et
igency, being an infringemeni of plaintiffs' al., 22.
2. If both parties to a deed, apparently de.
signed as a voluntary settlement, are present, and the usual formalities of execution take place, and the contract is to all appearances consummated without any conditions or qualifications, it is a complete and valid deed, although it be left in the custody of the grantor.
If such a deed has been actually delivered to the grantee the rights of the cestui que trust attach and the effect of the delivery cannot be impaired by any mental reservation or any oral condition repugnant to the terms of the deed. — Walluce v. Berdell et al., 170.
so doing, defeated the trust.- Welsh v.
Welsh et al., 369. 9. Testator by his will devised the use and
income of his house and lot to his wife in lieu of dower and provided on her death they should become a part of the residue of the estate. The residue was devised to the executor in trust to receive the rents, &c., and pay them to beneficiaries named during the lives of two persons who were strangers to the trust. Held, That the trust was valid and did not unduly suspend the power of alienation ; that no trust was created during the life of the widow in the property devised in lieu of dower, and that on a refusal by the widow to accept the devise it became inoperative.
- Bailey v. Bailey et al., 465. See WILLS, 2, 4, 9, 12.
3. Such a deed is irrevocable after taking
effect, and no act of the grantor or omission of the trustee to perform his duties
can affect its operation.-Id. 4. To constitute a declaration of trust the
acts or words relied on must be unequivocal. The question is mainly one of intent. -Butler v. Duprat, 350.
5. As a rule the remittance of funds with
instructions to pay them over will not be constru as constituting an irrevocable trust so long as the funds are at the risk of the remitter. The treasurer of a corporation cannot so remit funds as to constitute an irrevocable trust without special au
thority.-Id. 6. Funds remitted to a trust company, with
instructions to pay them to the holder of a negotiable obligation of the remitter, which is by its terms payable there, remain at the
latter's risk.-Id. 7. An appropriation not amounting to a dec
laration of trust will not be held irrevo. cable, except to protect some one who has parted with value on the faith of it.-Id.
TRUSTEES. 1. Where a trustee who has been removed
refuses to pay over the trust moneys to his successor he is guilty of a breach of trust and is not relieved from liability therefor by the acceptance of his promissory note by such successor, without the approval of the Court or the cestui que trust. - White v.
Betts, 180. 2. Such a liability is not affected by a dis
charge in bankruptcy. -Id. See CORPORATIONS, 9, 12, 14; EXECUTORS,
2, 5 ; LEASE, 7, 8.
UNDERTAKING. See ABANDONMENT, 4; APPEAL, 15, 16.
8. The testator bequeathed his half of the
partnership business carried on by himself and his brother C., to said C., in trust to keep the same and the proceeds thereof invested in the same business and to pay one-half the net income and protiis thereof to his brother W. until he should attain the age of 25 years, and at that time to pay over to said W. the said trust property, provided said W. should be or become engaged in said business immediately after the death of testator, and should continue in said business until he should attain the age of 25 years, and in the event of said W.'s not becoming engaged in said business, or of ceasing to continue in it, or of dying before he arrived at the age of 25. the will directed that the trust property should fall into and become a part of the residuary estate. Held, That the trust created was conditional and depended upon the fact of W.'s immediate and continued engagement in said business, and that his failure to so continue, caused by sickness which permanently incapacitated him for
USAGE. 1. The plaintiffs had been accustomed for
two years frequently to send to the de. fendant notes and drafts upon a merchant residing in the town where it did business for collection, and when they were presented to the said merchant he had almost invariably drawn upon merchants in Cin. cinnati for the amount, and such drafts had been accepted by the defendant in payment of the notes, &c., presented, and forwarded to the plaintiffs, who had never returned any of them. Held, That the defendant was relieved by this custom from any liability for accepting in payment of a note seni it for collection such a draft which was not accepted or paid — Espy et al. v. The Bank of America, 25.
VARIANCE. See FORGERY, 5.
1. A motion made under $ 319 of the Code of
Civ. Pro. to remove a cause from the City Court of New York to the Supreme Court,
Nanse and L. in fe - Te
and to change its place of trial, is not too late when made two days after joinder of issue, although between the notice of such motion and its argument defendant signs a stipulation to take evidence out of the State. - In re petition of Granger v. Sheble,
92. 2. Said section of the Code does not require
that any demand should be made for a change of place of trial prior to an application therefor made thereunder.-Id.
3. Whether such an application should be
granted or not is purely a matter of discre
tion.-Id. 4. To insure the granting of such an applica
tion something more is required to be shown than the mere fact that the defendant is not a resident of New York County.-Id.
See HIGHWAYS, 7; NEGLIGENCE, 10.
See DEEDS, 3 ; ESTOPPEL, 2 ; FIRE INSUR
ANCE, 2, 3, 6, 7, 16 ; NEGOTIABLE PAPER, 6, 7.
1. Where a will bequeathed all of testator's
personal property, including money in bank, to his two daugters absolutely, but by a subsequent clause provided that, in case of the death of both without leaving any children surviving, the property should go to testator's sister ; but in case of the death of either daughter without children, that the survivor should have and hold and be the owner of said property, Held, That the true construction of the will was that the testator intended to give his daughters an absolute interest in case they or either of them survived him, and that event having happened no interest, present or contin. gent, vested in the testator's sister; that the clause in question should not be construed to limit the absolute bequest to a life
interest.-In re accounting of Tallmage, 69. 2. Testator by his will gave to his daughter
the sum of $25,000, and directed that $8,000 thereof be given to her son T. on his arriv. ing at the age of 21 years, but in case he should die before that age without issue, the sum “directed to be paid ” to him was given to his brothers and sisters on his mother's death. Held, That the executor was required by the terms of the will to pay the whole sum of $25,000 to testator's daughter ; that such payment discharged him, and that she received $8,000 thereof as trustee for her son.-In re estate of Denton,
84. 3. The will in question was in the hand
writing of testator and contained the usual attestation clause. One of the witnesses testified that all the statutory requirements were complied with ; the other testified that he signed at the request of testator, but did not know what the instrument was. Held, That the proof was sufficient to estab
lish the will.-In re will of Bogart, 141. 4. A will devised certain real estate to the
executors in trust to receive rents, &c., and to pay to two of testator's grandsons or to the survivor of them a specified sum on becoming twenty-one, the trust to continue until testator's son C. arrived at the age of 25, he to have the income less said sum during life, and if he should die leaving lawful children said real estate to be theirs on arriving at the age of 21. Held, That there was no unlawful suspension of the power of alienation.-Radley et al.v. Kuhn et al., 178.
WARRANTY. 1. Where a horse is waranted to be "r
good, kind and gentle, suitable for family use, the warranty is a general one, and the measure of damages resulting from the horse's running away is the difference between the horse's value as she was and her value if she had been as waranted ; injuries to the driver, buggy and harness cannot be included.
Rich v. Smith, 36. 2. When the designation by which an article
is sold signifies that it is designed to be used for a particular purpose, a warranty that it is suitable for such purpose may be implied from the designation itself.- The
Jefferson Iron Co. v. Thompson et al., 317. 3. When billets of iron made expressly to be
used in the manufacture of steel are sold, and the understanding of both parties is that they were purchased for such use, a warranty is implied on the part of the seller that they are reasonably and fairly proper
for that purpose.—1d. See AGNCY, 2-4; MARINE INSURANCE, 1.
WASTE, 1. It seems, That a person having only an
equitable contingent interest in premises may maintain an action for waste. - Lee v. Whallon et al., 366.
5. A will devised certain real estate to testa
tor's widow for life, with remainder to plaintiffs ; it then gave the residue to plaintiffs in equal shares, subject to dower," the same and all other property given and devised to them to be to their sole and separate use,” &c. Then followed a habendum clause for life, with remainder to plaintiffs' respective lawful issue or on failure thereof to the survivor. Held, That the habendum
See NEGLIGENCE, 2.
clause applied only to the residuary estate and that plaintiffs took estates in remainder in fee simple in the premises first devised.
— Temple et al. v. Sammis, 311. 6. Where the testator gave to his wife “$9,100
absolutely, in lieu of dower,” and specific sums were given to other persons, a subse. quent clause that if a sufficient sum was not realized from a sale of his real and personal estate to pay all of the said sums, then my said legatees to be paid their shares in the same ratio as hereinbefore bequeathed, and should there be a larger sum realized than the total amount of legacies, then the surplus to be applied to cach share in the same proportion, Held, that it was not intended to abate the legacy of the wife in case of land selling for less than a given sum, but such legacy was an absolute gift to free the land and estate, if accepted.
Mehl v. Hilliker et al., 416. 7. Where an estate is devised to the widow
for life, and she is appointed executrix with power to sell the same or so much as may be necessary to supply her wants, the power is a beneficial one, since no person other than the donee has, by the terms of its creation, any interest in its execution ; and her estate is changed thereby into a fee simple absolute in respect to the rights of creditors and purchasers, but subject to any future estate limited thereon in case the power should not be executed, or the land should not be sold for the satisfaction of debts.—Leonard V. The Am. Baptist
Home Mission Soc. et al., 439. 8. In such case, the Court will not entertain
a suit at the instance of the executrix for the purpose of ascertaining and determining whether or not the contingency upon which a sale was authorized had not happened within the true intent and meaning of the will. It is not for the Court to ascertain and determine whether it is necessary that any portion of the real estate should be sold, and, if so, what portion, since that power is conferred upon the executrix her
self.-Id. 9. One C. died in 1845, leaving a will which
devised certain real estate to trustecs for the benefit of M., her married aughter, and provided that it should not be liable
for M.'s husband's debts, and that he should in no event have any interest therein. The devise was subject to the power and authori:y of M. to dispose of the real estate by grant or devise. Held, That the trust and power were both valid and operative, the power related only to the remainder, and could be delegated. -Crooke v. Prince,
474. 10. In 1855 M. procured the trust estate to
be conveyed to her, and on her death devised all her real estate to her husband for life in trust for her children, and author. ized him to sell and convey the same
'either in fee or lesser estate,” and invest the proceeds. Held, That the wife fully and completely disposed of the whole estate ; that the power granted to the husband did not unduly suspend the power of
alienation.-ld. 11. A testator gave his wife the income of
his estate for life and in addition authorized her to use such part of the principal as she might from time to time, in her judgment, require to maintain her in a manner suitable to her station in life. This provision was stated to be in lieu of dower. He then gave the remainder of his real and personal, after her death, to certain nephews and nieces. Held, That the wife might use, if necessary in her judgment, the whole principal; ibat a surrogate could not require her to account for her expenditures made under the above clause, and that for such expenditures she was not accountable to the remainder-men. – In re estate of
Dickerman, 493. 12. Testator, by his will gave all his estate to
his executors with power to receive rents, &c., sell, mortgage and convey bis estate, upon trust to divide and distribute the estate, after payment of debts, among testator's four children equally. Held, That no valid trust in the real estate was created by the will; that the children are vested with the title as devisees in fee, and that a receiver appointed on the removal of the executors had no authority to execute the power of sale.- Cooke v. Platt et al.
impld., 498. See EXECUTORS, 1, 7, 8; HUSBAND AND
WIFE, 1; MORTGAGE, 13, Trust, 9.
Ex. es. c. ci