Imágenes de páginas

dence in other particulars. The court found the deed fraudulent and void as to plaintiff, and directed judgment that the lien of plaintiff's judgment is paramount to the conveyance.

E. W. Gardner, for applt. Henry M. Field, for respt. Held, No error. Although defendant had the right to take a deed from G. for the sole purpose of securing his own debt, 61 N. Y., 626; 56 id., 621; 76 id., 213; 7 Hun, 591; 14 id., 172; 30 id., 192; 48 Barb., 344; Wait Fr. Conv., & 390; yet that rule must be limited to a sale solely to pay the debt and of property sufficient only to pay it. 26 Hun, 554. Such a conveyance is a valuable consideration. 19 N. Y., 417, 421; 7 Hun, 146, 148-9; 4 Abb. Dec., 314; 89 N. Y., 452. The notice of the grantor's fraudulent fraudulent intent to bind the grantee must be actual. 79 N. Y., 102; 93 id., 118, 126. The evidence warrants the conclusion that G. and defendant combined and intended to defraud plaintiff. The fraudulent deed cannot be treated as security for the debt due to defendant or for the money he advanced on the purchase so as to take priority over plaintiff's judgment. 87 N. Y., 620.

Judgment affirmed, with costs. Opinion by Bradley, J.; Smith, P. J., Barker and Haight, JJ.,



N. Y. COURT OF APPEALS. Weston, applt., v. Ives, respt.

Decided Nov. 25, 1884.

The provisions of the constitution and the laws of the New York Stock Exchange are obligatory upon its members as a contract.

The proceeds of the sale of a member's seat

cannot be appropriated to the payment of such debts as are, by the constitution and laws excluded from participating therein, nor has the governing committee power to admit a claim on such a debt. Reversing S. C., 14 W. Dig., 413.

This action was brought by plaintiff, as assignee of W., to recover from defendant $6,000, the proceeds of W.'s seat in the New York Stock Exchange. It appeared that said Exchange was a voluntary association, organized for the purpose of conducting and regulating the business of dealing in stocks in the city of New York; that W. having failed, his seat was sold under a rule of the constitution of said Exchange, which provides that "If any suspended member fails to settle with his creditors within one year from the time of his suspension, his membership shall be disposed of * * * and the proceeds paid pro rata to his creditors in the Stock Exchange." Claims not filed before a transfer of the right of membership were excluded from participating in said proceeds, as was also any difference "growing out of a claim on a put or call notified for and reduced to a contract after failure." Claims of members were filed and proved against W. amounting to more than the proceeds of sale, all of which were on "puts" and "calls" notified for and reduced to a contract after failure.

James R. Marvin, for applt.

Robert Sewell, for respt.

Held, That plaintiff was entitled to recover; that W., having assented to the appropriation of his property in a particular way, and to the payment of certain debts to the exclusion of others, by that assent only had defendant the power to convert his property into money, and no application can be made of it to which he has not in like manner assented. It was immaterial whether the contracts under which the claims were made were valid or not.

The provisions of the constitution and laws of the New York Stock Exchange are obligatory upon its members as a contract.

Article 3 of the constitution of the Exchange vests governmental control in the governing committee, and gives it the power necessary, and makes its decision final. Article 19 declares "All debts, without distinction, are binding upon the members of the Exchange, and the governing committee will take cognizance of them upon complaints properly made and presented. It is claimed that the decision of that committee admitting the claims against W. to share in the proceeds of the sale of his seat is final.

[ocr errors]

concur, except Rapallo, J., absent.

Held, Untenable; that said committee could have no power beyond that given by the contract, nor admit a claim the constitution excluded by its terms.

Judgment of General Term, affirming judgment on verdict for defendant, reversed and new trial granted.

Opinion by Danforth, J.



Exceptions taken by defendant at trial and ordered heard at General Term in first instance.

Defendant makes farm implements. ments. Its business office is on the ground floor of its factory building, and opens directly on the street. There are the engine-room, a machine shop and a wood-room on the same floor, the last two opening directly on the street. The elevator, which was operated in the building, had its landing on the floor of the wood-room, and the landing place was unguarded. Several days before the accident deceased had talked with the superintendent of the works about getting work there, and the latter promised to engage him as soon as certain material came, which was expected soon. When first seen at the building on the day of the All accident deceased was in the en

Elizabeth Pierce, admrx., v. The Rawson Mfg. Co.

Decided Oct., 1884.

P. went to defendant's office to ask the superintendent for work; not finding him he went into another room of the factory, and was there killed by a descending elevator. Held, on suit by P.'s personal representative, that it was error to leave the question to the jury whether deceased was lawfully in the factory, and it was error to charge the jury that deceased had right to look for the superintendent wherever he could be found so long as he violated no established rule of the company.

gine-room talking with the engineer. After that he was seen passing from the street into the woodroom, and while he was passing through that room the elevator descended and injured him fatally.


The elevator was in good order and N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

was operated with proper care. The superintendent was in the building, but had no conversation with deceased, and it was not proved that deceased inquired for him. The evidence tended to show that on all the outer doors except that of the office was printed "No Admittance." The judge charged that if deceased applied at the office for the superintendent to get work and did not find him he had the right to go where he could find him, provided he did not infringe any of defendant's rules, and that the question whether deceased was lawfully in the wood-room was a question of fact for the jury and not of law.

William E. Bonham, for deft. M. Rumsey Miller, for plff. Held, That whether deceased was lawfully in the wood-room was a question of law to be ruled upon by the court and given to the jury as their guide, to be applied as they might find the facts, whether there was an implied invitation to deceased when on the premises in search of work to enter the workshops to find the superintendent. The deceased was not free to seek the defendant everywhere, even though there was no established rule as to that. See 10 Allen, 368; See 10 Allen, 368; 41 N. Y., 525; 30 Hun, 596. New trial ordered, costs to abide


Vol. 20.-No. 11b.

Opinion by Barker, J.; Smith, P. J., Bradley and Corlett, JJ.,


John N. Graville, respt., v. The N. Y. C. & H. R. RR. Co., applt.

Decided Oct., 1884.

Entries in a train sheet of a railroad company as to the passage of trains at a station other than that at which it is kept are not admissible against strangers unless verified by the station-man and telegraph operator at the station in question.

Appeal from judgment in favor of plaintiff, entered on the report of a referee.

Action to recover the value of two horses which were drowned in the Erie Canal, at Rome, on August 8, 1875, by reason of the negligence of the defendant in managing one of its trains.

It becoming necessary on the trial, according to defendant's claim, to show what freight trains passed Rome eastward between 11 and 12 o'clock of the night of August 7, 1875, the train sheet and train record of that day, both kept at Little Falls, were offered in evidence. The train sheet shows the starting of all trains from De Witt and West Albany and when they pass the several stations between. At Rome the station-man times each train as it passes and gives it and the number of the engine to the telegraph operator at Rome, who telegraphs it to Little Falls, and it is there entered on

the train sheet. Neither the sta- | Still for aught that appears the witnesses necessary to verify the entries in question could have been readily produced. More difficulty in that regard would often be experienced by banks or other corporations and even by some firms.

tion-man nor operator at Rome were called as witnesses nor their absence accounted for. The train despatcher at Little Falls described the manner in which the sheet was kept there, but had no knowledge of what occurred at Rome. The referee excluded the evidence offered.

D. M. K. Johnson, for applt.
M. D. Barnett, for respt.

Held, No error; that the train sheet, so far as the Rome entries were concerned, was not suffi ciently proved. The same rule applies to the train book. In Angell & Ames on Corp., § 679, the general rule is said to be that entries in corporation books of matters relating to any property or right claimed by them can never be evidence for them unless made so by act of the Legislature. See also 1 Greenl. Ev., § 493; 45 N. H., 355; 63 Barb., 112. Entries without verification do not affect strangers. Whart. Ev., § 662; Stark. Ev., 10 ed., 455; 59 Barb., 355. The rule stated in 7 Hun, 612, would at least require the verifying evidence of the Rome station-man and operator or its equivalent. 31 Hun, 241. See 55 N. Y., 440.

The entries as to the times of the passage of trains generally at Little Falls were not as such offered. It is at least doubtful whether they were sufficiently proved, as the parties who made the entries that night there did not verify them, except the entry as to one train, which was in fact received.

Also held, That the opinion of the witness P. as to whether or not the book was correct, whether the sheet was so correct that he could tell what trains passed at Rome, was properly excluded. He had already given all his knowledge on the subject.

The witness R. was asked the following questions: Are you able to tell what stock trains passed Rome that night going east? State, if you know, what stock train did pass Rome the night of August 7, 1875, going east, between 11 and 12? These questions were objected to and excluded.

Held, No error. It was quite

Furness v. Cope, 5 Bing., 114; 2 patent at that stage of the case M. & P., 197, distinguished. that the witness had no personal knowledge on the subject. It was not claimed that he had, and very evidently he was called upon to speak from the entries in the train sheet and book. That being improper the exclusion did not injure defendant.

The argument of defendant's counsel seems to be that by reason of the extent of the business of defendant and the difficulty of furnishing strictly verifying evidence the rule ought to be relaxed in the present instance.

Judgment affirmed.

Opinion by Merwin, J.; Hardin, P. J., and Follett, J., concur.



Bennett et al., respts., v. Culver, applt.

Decided Nov. 25, 1884.

Plaintiffs' ancestor, B., sold certain land to a

cemetery association by deed, which provided that the grantee should pay to B. a certain sum for each lot sold by it for a burial place; that B. should be entitled to the grass and products of all parts which remain unsold until all the lots were sold and had interments therein, and that in case the grantee should fail to fulfil any of the premises on which the land was granted, the right of soil of all lots without interments should revert to B., his heirs, &c. No lots were sold and B. and his heirs remained in possession until dispossessed by defendant, claiming under a deed executed on sale under execution against the association. Held, That no title passed to the grantee under this deed to which judgments against it could attach; that the deed was not absolute but conditional.

This was an action of ejectment. It appeared that in 1825 one B. became the owner of certain premises. In January, 1853, he joined with the trustees of Washington Cemetery, a duly organized corporation, in the execution of an agreement, whereby, "in consideration of the sum of ten dollars (and the premises hereinafter stated)," B. granted, sold and conveyed to said cemetery and its assigns forever said land. The "premises" referred to in the consideration clause were declared to be that the cemetery should pay half-yearly from the date of the

conveyance to B. "or his assigns. during his lifetime, or to his attorney, agent, *** heirs, legatees, executors or administrators after his decease," forty dollars for each lot sold by the cemetery for a burialplace, the sales for such purposes being limited to a fixed rate. It was also provided that B. should be "entitled to the grass, wood, timber and other produce of the soil of all parts of said land which may remain unsold in conformity to the conditions of this deed, until all such lands shall be sold as aforesaid and have interments therein." It was also provided that in case the cemetery should not fulfil "any of the premises on which this conveyance is given the right of soil of all lots without interments shall revert to the party of the first part, his heirs, assigns, executors, administrators or legatees, but which reversion shall not prejudice the right of the cemetery or corporation to sell said land *** in conformity to said premises;" then follows this clause: "to have and to hold the above * * described premises, with the appurtenances, unto the said party of the second part and assigns forever, in conformity to the premises hereinbefore stated." Then follows, among others, a covenant by B. "that the said party of the second part and assigns shall quietly have, hold, use, occupy, possess and enjoy" the said land "subject and in conformity to the premises hereinbefore stated and agreed upon.' No lots were sold by the cemetery and none of the land was used for cemetery purposes. B. continued

* *

[ocr errors][ocr errors][ocr errors]
« AnteriorContinuar »