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did not choose to rest his claim as When a plaintiff is taken by surprise by the to the value of his services upon

production of evidence proving a defense the ground that it was admitted

pleaded, the truth or falsity of which he

might have ascertained by communicating by not denying, but gave evidence with a third person in a foreign state, he upon the question, defendant should withdraw a juror and thus arrest ought to have been permitted to

the trial, and not proceed and take the re-but the same.

chances of success, and then move for a

new trial on the ground of surprise and The answer alleged that defend

newly discovered evidence. ant employed plaintiff as his attor- In an action by two partners upon a claim

a demurrer was interposed for a mis

ed payment, and proved a release and set

tlement with the former partner without joinder of parties, and that by rea

any knowledge of the previous dissolution son thereof he was compelled to pay of the firm, or that he had assigned his in$50 ; that plaintiff admitted that it

terest to plaintiffs. Held, That as plaintiffs was owing to his misjudgment and

might by communicating with such former

partner, have ascertained the truth of the wrong advice in the misjoinder of

matter, they were guilty of laches in going the parties, and that he promised to trial, and are not entitled to a new trial to repay the $50 so paid by de.

on the ground of surprise and newly disfendant which he pleads as a

covered evidence; especially when defend

ants' affidavits controvert the facts stated counterclaim. The court below

in plaintiffs' affidavits. held that there was no consideration for this promise and struck

Appeal from order of Special out the evidence thereof.

Term, denying motion for new Held, Error. If plaintiff was

trial upon the ground of surprise guilty of malpractice, and the and newly discovered evidence. same was settled between the part

Action upon a claim formerly ies by his agreeing to pay the owned by the firm of John Soule sum of $50, such agreement was

& Co., of which plaintiffs were supported by a good considera- members. The firm was dissolved, tion.

and John assigned his interest Judgment and order reversed in the claim to plaintiffs. Defense, and new trial ordered.

payment. Defendants put in eviOpinion by Haight, J.; Smith, dence a release executed by John P. J., Barker and Bradley, JJ.,

Soule & Co., and by John Soule, concur.

and proved that they conveyed property to John in settlement of

the claim, without any knowl. PRACTICE. NEW TRIAL. edge that the firm had been dis

solved and that John had assigned N.Y. SUPREME COURT. GENERAL his interest in the claim. The TERM. FIFTH DEPT.

court directed a verdict for de. David Soule et al., applts., v.

fendants. Samuel Oosterhoudt et al., respts.

Upon the motion for new trial

plaintiffs' affidavits stated that Decided Oct., 1884.

they were surprised at the trial

by the production of the re- | had informed them of the assignlease, as they had never seen or ment of all his interest in the coheard of its existence; that since partnership and in this claim to the trial they have been informed plaintiffs. by John Soule, who resides in Order affirmed. Michigan, that at the time he set Opinion by Haight, J.; Smith, tled with defendants he told P. J., and Bradley, J., concur; Oosterhoudt that he had assigned Barker, J., not sitting. his interest in the claim. John Soule also made affidavit that such was the case.

TENANTS IN COMMON. But the affidavit of Ooster

PARTITION. houdt showed that one of the N.Y. SUPREME COURT. GENERAL plaintiffs admitted that he knew

TERM. FIFTH DEPT. of the release before the trial ; and the affidavit of John Soule was Lucy Wainman, respt., v. Isaac controverted by Oosterhoudt's and Hampton et al., applts. his attorney's affidavit.

Decided Oct., 1884. Cary, Jewell & Rumsay, for

When one of several tenants in common is in applt. Bolles & Moulton, for respts.

actual possession his possession will, in the

absence of any act of ouster on his part, Held, That, as the answer alleged inure to the benefit of all, and any one of payment, they must have known them can maintain an action for partition. that no payment was made to

Consequently, it is not necessary to allege

that the plaintiff was or had ever been in them, but must have been made

possession. to the former partner, and they In an action of partition under the Revised were guilty of laches in not ascer Statutes the mere putting in of an answer taining the fact from him before claiming title to the whole premises did not trial. If they were in fact sur

prevent the court from ascertaining whether

any such title existed, or from determining prised by the production of the

whether there was a subsisting adverse posrelease, they should have moved session. So held of a claim that plaintiff to withdraw a juror and thus ar

contracted to convey his interest to defendrest 'the trial, and not to have proceeded and taken the chances of Appeal from an interlocutory success ; unless good reasons ap- decree in partition. Plaintiff and pear for taking the latter course. defendants became tenants in com48 How., 542; 48 Barb., 197. mon of the premises by descent.

The business having been trans. One of the defendants claimed to acted in the office of defendants' have purchased the interest of attorney, other matters connected plaintiff therein, and to be the with the business of the firm were owner thereof, and that the findthen settled, a conveyance was ing of the court to the contrary made in settlement of this claim, was against the weight of evidence. and it seems incredible that this Motion to dismiss the complaint should be done after John Soule was made upon the ground that it


contained no averment that plain- | counts of William C. Tallmage, tiff was or ever had been in pos executor. session of the premises; and that Decided Oct., 1884. the court could not determine in

Where a will bequeathed all of testator's perthis action whether a binding con.

sonal property, including money in bank, tract to sell had been consum to his two daughters absolutely, but by a mated.

subsequent clause provided that, in case of

the death of both without leaving any A. J. Abbott, for applts.

children surviving, the property should go James Wood, for respt.

to testator's sister; but in case of the death Held, That the court had power of either daughter without children that the to determine whether a binding

survivor should have and hold and be the contract of sale had been made,

owner of said property. Held, That the true

construction of the will was that the testaand that the finding was sustained

tor intended to give his daughters an absoby the evidence. The mere put lute interest in case they or either of them ting in of an answer does not oust

survived him, and that event having hapthe court of jurisdiction to ascer

pened no interest, present or contingent,

vested in the testator's sister; that the tain whether the claim of title is

clause in question should not be construed well founded, or whether the pos to limit the absolute bequest to a life insession is held adversely. 46 N.Y.,

terest. 182.

Appeal from a final decree of the Held also, That where the com- surrogate made upon the settleplaint alleges that the premises ment of the accounts of the ex . descended to plaintiff and the de- ecutor. fendants as the heirs of a certain Charles Tibbitts died leaving a person it sufficiently shows that will, which was admitted to probate plaintiff was in possession. Ten

Ten- and letters testamentary issued. ants in common are constructively He left him surviving two daughin possession, and when one of sev. ters, Elsie and Jane, both of whom eral is in actual possession his pos- are now living and of age. Jane M. session will, in the absence of any Tallmage was testator's sister, but act of ouster on his part, inure to died leaving her husband and the benefit of all, and any one of two daughters, Sarah M. Tallmage them can maintain a suit for par. and Gertrude T. Kiefer, her surtition. 14 N. Y., 235; 46 Id., viving. After bequeathing to each 182.

of his daughters specified shares Judgment affirmed.

of bank stock, all the money in Opinion by Haight, J.; Smith, bank, and all his personal prop. P.J., Barker and Bradley, JJ., erty, the testator, by the fifth

clause of his will provided : “In concur.

case of the decease of both of my WILLS.

said daughters, Elsie and Jane,

and without any children of theirs N. Y. SUPREME Court. GENERAL then surviving, then and in such TERM. FIFTH DEPT.

case I give and bequeath their said In re Settlement of the Ac- shares of said property aforesaid

to my sister Jane M. Tallmage; FIRE INSURANCE. but in case of the decease of either of my said daughters, and without N. Y. SUPREME Court. GENERAL

TERM. FIFTH DEPT. children, then and in such case the survivor of either of them Alphonso J. Aldrich, respt., v. shall have and hold and be the The Home Ins. Co., applts. owner of the whole of iny said Decided Oct., 1884. property." The daughters petitioned the A condition in a policy of insurance, that “if

the interest of the assured in the property surrogate for a distribution of the

be any other than the entire, unconditional estate, claiming that the bequests and sole ownership of the property for the to them were absolute and that use and benefit of the assured, it must be so they were entitled to the pos

represented to the company and so express

ed in the policy," otherwise it shall be void, session of the property. The dis

is not broken by reason of the existence of tribution was opposed by the ex mortgages upon the property, no questions ecutor and the daughters of Jane having been asked in reference thereto, and M. Tallmage, they claiming that

there being no fraudulent concealment. the former took but a life interest

Where the assured, immediately after the

fire, gave personal notice to the local agent, under the will.

who informed the company, and afterThe surrogate took the former wards the agent and the adjuster of the view of the case and decided in company called and examined the ruins, favor of the testator's daughters.

and plaintiff made a statement of his loss

to them; the agent said it was not necessary Delavan F. Clark, for applts.

to make out proofs of loss. Held, A waiver

of the condition requiring written notice Adelbert Moot and James C. and proofs of loss, and the company was Beecher, for respts.

estopped from setting up the breach.

An informality in the proofs of loss may be Held, No error; that it was the

waived by retaining it without objection, intention of the testator to give eg., where the venue stated in the affidathe property absolutely to his vit was in one county and the officer who

took the affidavit resided in another. daughters in case they survived but if one died before him leaving Appeal from judgment entered no clildren, then that the surviv- upon the report of a referee in favor ing daughter should take the of plaintiff. whole absolutely; but if neither Action upon a fire insurance survived him leaving children, policy upon buildings, which conthen his sister Jane should take it tained a condition, that “if the absolutely

interest of the assured in the 61 N. Y., 47; €8 id., 227; 19 W. property be any other than the Dig., 161; 81 N. Y., 356 ; 91 id., entire, unconditional and sole 464 ; 52 id., 118; considered. ownership of the property for the Decree affirmed.

use and benefit of the assured, it Opinion by Haight, J.; Smith, must be so represented to the comP. J., Barker, and Bradley, JJ., pany and so expressed in the polconcur,

icy.” Plaintiff was the owner in fee of the premises, which were

encumbered by two mortgages It appeared that there was an amounting to $1,300, but nothing informality in the proofs of loss ; was asked or said in regard to the that the venue of the affidavit was encumberances when the insur- in one county and it was sworn to ance was made.

by a justice of the peace residing Daggurt & Norton, for respt. in another connty. But the proofs E. W. Packard, for applt.

were retained by the company. Held, No breach of the condi Held, A waiver of the objection. tion. There was no evidence of 12 N. Y., 81; 81 id., 410. fraud or that plaintiff intentionally Judgment affirmed. concealed the fact of the encum Opinion by Haight, J., Smith, berance. If his attention had been P. J.; Barker, and Bradley, JJ., called to the matter he might have concur. disclosed the fact. 14 N. Y. 253; 32 Hun, 368.

PROMISSORY NOTES. The conditions required the insured forth with to give notice of N. Y. SUPREME COURT. GENERAL the loss of the company in writing. TERM. FIFTH DEPT. Plaintiff, immediately after the

Maria loss occurred gave verbal notice

Evans, respt., Charles thereof to the local agent of the

Deming, applt. company, the agent who delivered Deicded Oct., 1884. the policy, who said he would

Where a material alteration is apparent upon notify the company, which he did.

the face of a promissory note, evidence in About a month thereafter the explanation thereof must be given to enagent and the adjuster of the com title it to be put in evidence against defend

ant's objection. pany called on plaintiff and exam

Therefore, where the note (non-negotiable) ined the ruins, and plaintiff

produced showed an alteration in its date, inade a statement of his loss to and the insertion of figures in the body of them. He asked the agent if he the note expressing a larger sum than that should make out proofs of loss,

expressed in the words immediately follow

ing, and the larger sum was claimed. Held, and the agent told him it was not

That the alterations were material, and necessary, as Mr. Morgan, the ad

should have been explained before receiving juster, had appraised the property. the note in evidence, notwithstanding the Held, A waiver of the conditions,

written words would control.

Plaintiff having claimed payment of the larand that the company is estopped

ger sum and demanded it in her complaint, from relying upon the fact of non and thus rendered a trial and judicial de. compliance therewith. To hold termination necessary, it was too late to otherwise would enable the com

waive that sum and consent to take judg.

ment for the smaller sum. pany to practice fraud upon the

An offer by the maker before suit brought plaintiff by first inducing him not to

to pay the smaller sum, but without attengive written notice, and then not to tion being called to the alteration in the make proofs of loss by telling him

date, is no waiver of the alterations made. it was unnecssary. 68 N. Y., 434; Appeal from judgment entered 76 id., 415; 67 id., 283.

upon a verdict, and from order

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