Imágenes de páginas

STOCKS. CONVERSION. all the parties intended was to se.

cure the differences which might N. Y. SUPREME COURT. GENERAL result from the changes in the TERM. FIRST DEPT.

subsequent market prices of the Annie F. Cunningham, respt., v. property. James Stevenson et al., applts. Alfred McIntire, for applts. Decided Oct. 8, 1884.

George S. Wilkes, for respt. A contract between a principal and his broker

Held: That this defence was not that stocks and shares should be bought by established by the evidence. That the latter for the former and held by him the evidence showed that the pursubject to orders which afterwards might be given for their sale, and, after they had pose and object of plaintiff been sold in that manner, that the differen. was that the stocks or shares ces which might result from the changes should be bought and held by in the market prices of the property should defendants subject to the orders be settled, is a proper and lawful one, and is not illegal as being a gaming contract.

which afterwards might be given When stocks held by a broker for his for their sale, and after they had

principal under such a contract are sold by been sold in that manner that the the former without authority, it is not neces

differences should be settled, and sary to prove a demand of the stocks in order to maintain an action for conversion; that such a transaction would be nor does it interfere with the right of the neither unlawful nor improper. 77 principal to maintain such an action that N. Y., 612; 79 Ill., 351; 72 Penn. the stocks were bought in the name of an

St., 155; 65 Me., 570; 39 Mich., agent.

337; 70 N. Y., 202 ; 54 id., 522; Appeal from judgment and 110 U. S., 499. from order denying motion for That it did not interfere with a new trial.

the right of plaintiff to mainOne L., as the agent of plaintiff, tain the action that the shares employed defendants, who were were purchased in the name of her stock brokers, to purchase certain agent and not of herself, for she shares of Pacific Mail

Stock. being the party beneficially inDefendants afterward reported terested in the purchases had the that they had purchased such legal right to avail herself of them. stock. They subsequently failed That it was not necessary that and never delivered this stock to there should be proof of a demand plaintiff. This action was brought of the stocks made of defendto recover for its conversion upon ants, for it was reasonably clear the ground that it had been sold that they had sold the stocks withby defendants without authority. out authority, and that of itself The action was defended upon the was a conversion. ground, among others, that the Judgment and order affirmed. transaction

unlawful be Opinion by Daniels, J.; Davis, cause it was not contemplated that P. J., and Brady, J., concur. any shares of stock should be, or were actually purchased, but that



facts that plaintiff's testator had

lived with defendant for a year N. Y. SUPREME COURT. GENERAL before its execution, and subseTERM. FIRST DEPT.

quently until his death, and also Sarah H. Peck, ex'r, respt., v.

that he told the attorney who drew Andrew J. Peck, applt.

the instrument that he and his

brother had had a settlement, Decided Oct. 8, 1884.

defendant rested. Plaintiff there. A written instrument, not under seal, ac

upon moved for the direction knowledging the receipt by one of the par

of a verdict in her favor upon the ties of $250 in full payment of all claims and demands which lie had against the ground that the instrument in other party by reason of a certain note for question, not being under seal, did that amount (not at present at hand) and not constitute a valid release, or also in full payment of any and all claims

an accord and satisfaction, and and demands that he had against the other in any way, they having made a settlement,

that since it purported on its face is not a release, but is in the nature of a re to specifically release all claims ceipt, and should not be construed as evi and demands on a certain note for dencing the payment of a larger by a

$250, it must, notwithstanding the smaller sum, nor as applying only to the note specifically mentioned in it. The fair general words also used, be limited import of its terms is that the parties had to the item so particularly specimade a mutual settlement of their respective fied. This motion was granted. claims and the payment of $250 was for the Luke A. Lockwood, for applt. balance found in favor of one of them.

Chas. M. De Costa, for respt. Appeal from, judgment entered Held, Error. That the instruon verdict directed by the court. ment in question should not be

This was an action on two prom- treated as simply evidencing the issory notes for $775 and $200 re.

payment of a larger by a smaller spectively. The making of the sum. That it was not technically notes was admitted, but the de

a release, because it was not under fense rested upon the following seal, but was in the nature of a reinstrument signed by plaintiff's ceipt, and since it declared upon testator : "I, Zachary Peck, here- its face that it was given on a setby acknowledge the receipt of $250 tlement, its fair import was that in full payment of all claims and the parties had made a mutual setdemands which I have against An- tlement of their respective claims, drew J. Peck, by reason of a cer and the payment of $250 was for tain note for that amount (which the balance of the claims fonnd note is not at present at hand) and in favor of the testator, and that also in full payment of any and all the language in reference to the other claims and demands that I note is not so controlling as to have against the said Andrew J. limit the actual payment to that Peck in any way, we having made particular indebtedness, because a settlement this day." After reasonable force must be given to proving the execution of this that part of the instrument which instrument and the additional declared that the parties had had

a settlement which resulted in the him surviving, 1 then give and be. discharge of all claims and de- queath the said $8,000 which I mands on payment of a note not

have hereinbefore directed to be then present, and for that reason paid unto the said Theo. D. Mead, to be specifically mentioned. to his surviving brothers and

Judgment reversed and new trial sisters in equal proportions, on the ordered.

death of the said Elizabeth J. Opinion by Davis, P. J.; Dan- Mead." iels and Brady, JJ., concur.

The execntor paid over the entire sum of $25,000 to Mrs. Mead in

1865. Theo. D. Mead reached the WILLS.

age of 21 years July 20, 1883, and

he and his mother are both living. N. Y. SUPREME COURT. GENERAL

He now claims that it was the duty TERM. SECOND DEPT.

of the executor, under the will, to In re estate of Theodorus B. retain the $8,000 to be paid to Denton, deceased.

him at his majority, and that the Decided Sept., 1884.

payment to his mother was un

justifiable. Testator by his will gave to his daughter the 'The executor claims that he was sum of $25,000, and directed that $8,000

not only justified in such paythereof be given to her son T. on his arriving at the age of 21 years, but in case he ment, but that he was required to should die before that age without issue, the make it to her by the terms of the sum " directed to be paid" to him was given will; that such payment discharged to his brothers and sisters on his mother's him, and that Mrs. Mead received death. Held, That the executor was required the same as trustee for her son. by the terms of the will to pay the whole sum of $25,000 to testator's daughter; that such

The Surrogate sustained the payment discharged him, and that she re

executor and gave him a full disceived $8,000 thereof as trustee for her


Vanamee & Vail, for applt. Appeal from decree of Surro D. P. & H. Gedney, for exr., gate on settlement of the accounts respt. of T. J. Denton, exr.

Held, No error. By the fourth The third clause of testator's clause of the will testator recogwill was as follows: “I give and nizes the gift as absolute to the bequeath to my daughter, Eliza- daughter in the first instance, and beth J. Mead, the sum of $25,000, directs that the several bequests and do order and direct that $8,000 before made to his daughters be of said sum be paid over to her subject to reduction for advances son, Theo. D. Mead, when he made to them respectively. It was shall arrive at the age of 21 years. the intention of testator that the * but in

my said gift should be absolute to Mrs. grandson, Theo. D. Mead, shall die Mead; that she should have the before arriving at the age of money; have the use and benefit of 21 without leaving lawful heirs lit during the minority of her son,



or during her own life, according defendant of certain premises beas he should live or die, and pay it longing to plaintiff's intestate. over in accordance with those The defense, among others, was events. Testator, in the language that for a portion of the time for quoted, does not give the sum of which such compensation was $8,000 to T. D. M., and does not claimed the premises had been speak of it as the sum given to occupied by the New Boston Coal him, but as the sum “which I Mining Company, which had paid have hereinbefore directed to be the rent therefor. Plaintiff paid unto Theo. D. Mead."

then made a motion to compel a Decree affirmed.

discovery of the receipts given for Opinion by Dykman, J.; Barn- such rent to

such rent to said company, of ard, P. J., and Pratt, J., concur. which defendant had been an offi

cer, and which receipts plaintiff

alleged were in the possession or DISCOVERY OF PAPERS. under the control of defendant, N. Y. SUPREME COURT. GENERAL

and that they were material to

show the length of time the occuTERM. FIRST DEPT.

pancy by the company continued, William P. Douglas, admr., and therefore to fix the length appll., V. Franklin H. Delano, of defendant's occupancy. Derespt.

fendant denied that such receipts

were in his possession, but admitDecided Oct. 8, 1884.

ted that certain of them had been In an action brought by an administrator to given to his attorneys by a third recover compensation for the use and occu.

person, who had been a stockholdpation of certain premises belonging to his intestate, in wbich the defense was that for a

er of such company, and were in portion of the period for which such com

their hands. pensation was claimed the premises had

John M. Bowers, for applt. been occupied by a corporation, and that such corporation had paid the rent there Frederick P. Forster, for respt. for, plaintiff moved for a discovery of the receipts given to such corporation for

Held: That the motion was propsaid rent, which he alleged were in the pos- erly denied, on the ground that the session of defendant, who had been one receipts sought were not in the of its officers. Defendant denied that such receipts were in his possession, but ad possession or under the control of mitted that certain receipts of that charac. defendant. ter were in the possession of his attorney. That, moreover, these receipts Held, That plaintiff was not entitled to a dis

were not required to enable covery of said receipts.

plaintiff to prove his alleged cause Appeal from order denying of action. That that would be motion for a discovery of certain done by showing the right of the receipts.

intestate to the property, its use This action was brought by and occupation by defendant plaintiff to recover compensation and the value of that use. That for the nise and occupation by the receipts could be only proper




to prove
prove defend-

Appeal from judgment in favor ant's defense, and it follows, there. of plaintiff entered on verdict and fore, that the object of the appli- from order denying a new trial. cation was to discover what evi. Action for trespass on

land dence defendant might be able upon which plaintiff had erected to produce upon the trial to prove a rough building. Defendant, his alleged defense, and that the claimed that this building was on law has not provided this proceed the street and that they removed ing to secure the attainment of it by direction of the commissionthat object. 2 Hun, 308.

ers of highways because it was an That neither $ 803 of the Code encroachment and obstruction to of Civ. Pro., nor Rule 14 of the public travel and so a public nuiGeneral Rules of Practice, nor 1 Civil Procedure, 179, sustain or The land as described in the sanction this practice.

complaint lays between the upper That to obtain a discovery of landing road and a lot belonging books and papers they must be re to one McE., and between the quired either to enable the appli- railroad and Water street. Plaincant to prepare his pleading or tiff claimed that the lot in question prepare for the trial of the action, was immediately north of the McE. or to take some other proceeding lot and between that and the landrequired by him for the presenta- ing road, and that it was 19 ft. 7 tion of his rights, and this was not in. on Water street, measuring an application within either of from the north-west corner of the these classes of cases.

brick wall of the McE. house. It Order affirmed.

appeared that the brick house had Opinions by Davis, P. J., and stood on the McE. lot thirty years, Daniels, J.; Brady, J.,

and there was a piazza on the curs.

north side 6 ft. wide. Plaintiff's building, which was 24 ft. north

and south, and 12 ft. east and west, HIGHWAYS.

was placed close to this piazza. N. Y. SUPREME COURT. GENERAL

The case was submitted to the TERM. SECOND DEPT.

jury, on the theory that the com

missioners of highways had no Pierre C. Van Wyck, respt., v. power to tear down the building Nathaniel B. Lent et al., applts. and abate the nuisance, provided

there was room left to drive past Decided Sept., 1884.

the building with teams, without

inconvenience or danger. The Highway commissioners have power to summarily remove a building which obstructs court charged as follows: “If you

highw even though sufficient space is find from the facts that there was left for teams to pass and re-pass, and neither

this opportunity to pass and rethey nor those assisting them can be held liable in damages for such exercise of offi- pass this building without injury cial power.

or inconvenience to these people,


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