poration which occupied a store under a lease assigned to it by a former
lessee, applies to the landlord for a renewal lease running to the corporation,
and thereafter another director applies to him for a lease in his own name,
and the landlord, after a full investigation, refuses to execute a lease to the
corporation and executes one to the latter director, containing a provision
against assigning or subletting, the corporation is not entitled to maintain
an action against the director to secure the benefit of the lease to the same
extent as though it had been made to it, as the court has no power to compel
the landlord to accept the corporation as a tenant against his will.
CRITTENDEN & COWLES Co. v. COWLES.....
2. Principal and agent-right of a woman to compel a reconveyance of
property sold by her agent to himself for an inadequate consideration.] Where
a woman advanced in years, physically weak and of inferior mental capacity
and without business ability and experience, places a parcel of real estate
in the hands of a shrewd and able real estate agent with instructions to find
a purchaser, and such real estate agent induces her to sell the property for a
grossly inadequate consideration, without disclosing to her the fact that he
intended to become the purchaser, she is entitled to maintain an action to
compel the real estate agent to reconvey the property to her.
3. Effect of her receiving payment of a mortgage given back by the agent
to her.] The fact that, after she learned that the agent was the purchaser and
had requested him to reconvey, she accepted payment of a mortgage exe-
cuted to her by the agent in part payment for the property, does not estop
her from subsequently assailing the transaction where it appears that at the
time she accepted such payment she informed the agent that she intended
to insist upon a reconveyance of the property. Id.
Damages in an equity case.] Damages awarded in an equity case
should be computed to the time of the trial and not to the time of the
decision. MILLER . EDISON EL. ILLUMINATING CO.
Action for conversion, not maintainable to enforce equitable rights aris-
ing out of stock in a corporation.
See CORPORATION.
See INJUNCTION.
ESTATE- In real property.
See REAL PROPERTY.
ESTOPPEL- Ratification of town bonds.] A town, which has issued bonds
in aid of a railroad, cannot, by any subsequent act of its officers or other-
wise, ratify such issue or estop itself from questioning the validity of the
bonds. OSWEGO COUNTY SAVINGS BANK v. TOWN OF GENOA..
330
EVIDENCE - Assesssment of damages in a negligence case- under what
allegations as to injury proof of barrenness and insomnia and impaired eyesight
is inadmissible.] 1. Under a complaint in an action to recover damages for
personal injuries which describes the plaintiff's injuries as follows, frac
turing the bones of her face and body, and bruising, hurting, wounding
the plaintiff about her head, body, arms and limbs, whereby the life of this
plaintiff was greatly endangered;
* * that her health has been
greatly and permanently impaired, and her body greatly and permanently
injured," evidence is inadmissible that, in consequence of the injuries
inflicted upon the plaintiff, who was a young married woman, she had
become barren; that her womb was displaced and lacerated; that there was
a disturbance of the nerve center at the base of the brain which regulates or
affects the distribution of the blood; that her sight was affected; that her
nervous system was impaired by the severity of the shock, and that she
suffered from inability to sleep.
Where considerable evidence concerning the alleged barrenness of the
plaintiff and the injury to her eye was introduced, and the attention of the
jury was pointedly directed to such evidence by a discussion of its admis-
sibility, the Appellate Division considered that the effect produced by the
introduction of such testimony was not destroyed by a charge to the jury
that no recovery could be had on account of such injuries.
LEWIN . LEHIGH VALLEY R. R. Co....
2. Requiring the submission to the jury of the question whether a dress-
maker's bill was incurred on the credit of the wife or of her husband.] In an
action against a married woman to recover a balance of a dressmaking bill,
in which the question litigated is whether the services were performed and
the materials were furnished upon the faith and credit of the defendant or
upon the faith and credit of her husband, evidence given on behalf of the
plaintiffs tending to show that the goods were furnished to the defendant at
her request and at prices agreed upon; that the account kept by the plain-
tiffs was in the defendant's name and that every item of the account was
invariably charged to her; that each one of the bills had been sent to her
and that she personally paid some money on account of the indebtedness
and on one occasion wrote to the plaintiffs as follows: I am sorry to have
kept you waiting for the money I owe you, and I regret that I shall have to
ask you to wait until the 10th of December, when I shall surely pay you,"
and on another occasion wrote to them stating that she was sorry not to be
able to settle the entire bill, but would send some more money as soon as
possible, and that the defendant never mentioned her husband in any of the
transactions which the plaintiff's had with her, is sufficient to require the
case to be submitted to the jury, and renders it improper for the court to
direct a verdict in favor of the defendant. O'CONNELL v. SHERA.....
467
3. Insurance-proof of usage as to a notice terminating liability under
a binder"] Upon the trial of an action brought upon an insurance
binder evidence was given by the secretary of the defendant insurance com-
pany to the effect that at the time the binder was issued there was in exist-
ence a custom or usage, well known to brokers and insurance companies,
with reference to the termination of risks under binders similar to the one
in question, which was that, on notifying the broker that the risk was
declined, all insurance under the binder terminated, and that a notice, one
similar to which had been given in the case at bar, was at that time and for
a long time prior thereto had been in common use for the purpose of termi-
nating liability under such binders.
Held, that such evidence required that the case be submitted to the jury
upon the question as to the termination of the insurance effected by the
binder, and rendered it improper for the court to direct a verdict in favor
of the plaintiff. UNDERWOOD . GREENWICH INS. Co....
4. A conjectural verdict, set aside.] Where contractors with the city
of New York claim to be entitled to compensation for 15,000 cubic yards of
additional filling at thirty cents a cubic yard, which they claim to have
furnished in place of a quantity of filling which had been washed away
by reason of leaks in the Croton water main, and it appears that there were
three separate causes for the loss of material, requiring the use of the addi-
tional filling, namely, the action of the tides, the sinkage or shrinkage of the
material and the leaks in the Croton water main, and it does not appear what
amount of loss of material could be ascribed to any of the three causes, a
verdict of $1,750, which would pay for about 5,800 cubic yards of additional
filling at thirty cents a cubic yard, will be set aside as conjecturai.
THILEMANN. THE MAYOR.....
5. Insufficient proof of damage.] A verdict of $4,500 in favor of the
contractors for the expense of rehandling filling material, in consequence of
the erection by a corporation with the consent of the city of telephone and
telegraph poles upon the line of work, cannot be sustained where the only
evidence as to the amount of material rehandled was a statement by one of
the contractors in the following language: “15,000 yards, I should say.” Id.
6. Promissory note - evidence of a contemporaneous cral agreement that
it should be paid, not in cash, but in carriage hire, is inadmissible.] In an action
upon a promissory note, payable by its terms three months after date, given
by the defendant, a cab company, to the plaintiff in payment for a carriage,
allegations contained in the answer that contemporaneously with the making
of the note the defendant entered into an oral agreement with the plaintiff,
which agreement was a condition precedent to the giving of the note, that
the note should be paid, not in cash, but by the plaintiff using the horses and
carriages of the defendant until the hire of such carriages equalled the amount
of the note, do not constitute a defense to the cause of action, as evidence of
the contemporaneous oral agreement would not be admissible.
ZINSSER . COLUMBIA CAB Co..
7. Criminal conversation — what statements made by the plaintiff's wife
to him are competent.] In an action for criminal conversation, brought by
a husband, oral declarations or statements made by his wife to him, or in his
presence, in the absence of the defendant, before the commencement of the
action, indicating the state of his wife's feelings toward him, are, in the
absence of proof of collusion, competent solely for the purpose of proving
the state of such feelings and as bearing upon the question of damages, and
such declarations or statements may be testified to by the plaintiff or by any
other person who may have heard them. BILLINGS . ALBRIGHT......
8. What statements made by her to third parties are not competent.]
Declarations or statements made by the wife to third parties, in the absence
of both the plaintiff and the defendant, which were not made in explana-
tion of or to characterize any act which is part of the res gestæ, are not com-
petent for any purpose. Id.
9. Evidence as to plaintiff's adultery, his treatment of his wife, etc.]
The defendant may, if he alleges such facts in his answer as a partial defense
and in mitigation of damages, prove the commission of adultery by the
plaintiff, the relation which he sustained towards his wife, whether affection-
ate or otherwise; that his treatment of her was cruel; that his habits were
bad, and any and all facts which tend to show the character of the plaintiff
before the commencement of the action. Id.
10. Proof required of the plaintiff - the basis of damages.] Semble, that
it is only necessary for the plaintiff to prove his marriage and the criminal
conversation, and that the latter took place without his consent, in order to
entitle him to nominal damages, but that the gist of the action and the basis
for substantial damages is his loss of consortium. ld.
11. — Insurance of a factory on leased ground — knowledge of that fact by
the agent before his appointment· - when imputable to the company-burden of
proof] In an action brought upon a policy of insurance, in which it is
claimed that the agent had knowledge that the premises insured were erected
upon leased land, the burden of proof that the agent had such information in
mind when he issued the policy is upon the plaintiff, and where the agent
denies that he received such information and states that at the time he
issued the policy he had no knowledge or information that the building was
erected on leased land, the jury, in the absence of any evidence contradict-
ing the agent's testimony, has no right to find that he did have such knowl-
edge at the time the policy was issued.
SERGENT . LIVERPOOL & L. & G. INS. Co........
12. Libel — the application thereof to the plaintiff may be shown by proof
of his circumstances, but not by the opinions of witnesses.] In an action of libel
based upon a newspaper article, which does not allude to the plaintiff by
name, it is competent for the plaintiff to give proof showing that the par-
ticular circumstances to which the article adverted were descriptive of
the plaintiff and his surroundings, but he is not entitled to prove that the
article referred to him by asking witnesses whom they identified as the person
to whom the article referred. STOKES v. MORNING JOURNAL ASSN.
13. Notes obtained by the payees by fraud-bought for four-fifths of their
face value.] Proof which does not establish bona fides in an indorsee of notes
obtained by the payees by fraud, where such indorsee buys the notes for
four-fifths of their face value without inquiry as to their origin, considered.
WRIGHT v. BARTHOLOMEW..
14. Testimony as to a transaction with a decedent.] The fact that a
servant of a decedent is called to testify to a conversation between such
decedent and the plaintiff does not entitle the plaintiff to testify as against
the decedent's executrix. HEALY. MALCOLM...
15. Expert evidence—when the jury and not the expert should draw the
conclusion.] When the facts, the proper subject of expert testimony, can be
easily presented to the jury, they and not the expert should draw the conclu-
sion. CRAMER . SLADE..
Of negligence and contributory negligence.
See NEGLIGENCE.
EXCEPTION On appeal.
![[ocr errors]](https://books.google.com.bd/books/content?id=6okLAAAAYAAJ&output=html_text&pg=PA655&img=1&zoom=3&hl=en&q=payment&cds=1&sig=ACfU3U0368OXFuzQrkZiZb0sgZoamjWdeQ&edge=0&edge=stretch&ci=384,400,7,5)
EXECUTION -- Conversion destruction of a check, while in the hands of the
constable to whom it has been given in payment of a judgment, by the drawer
thereof — measure of damages.] 1. An execution debtor gave to the constable
to whom the execution had been delivered his check in settlement of the
judgment, fees and expenses. When the constable presented the check at
the bank where it was payable it was discovered that "two hundred dollars
and ninety-five cents," was written in the body of the check and $210.95 in
the margin. The cashier offered to pay the amount stated in the body of
the check, but refused to pay the amount stated in the margin. The
constable thereupon took the check to the execution debtor and asked him to
rectify the mistake, and the latter snatched the check out of his hands and
destroyed it.
Held, that the execution creditor might maintain an action for the conver-
sion of the check, and that the measure of damages was the value of such
check;
That in view of the offer of the cashier of the bank to pay the amount
stated in the body of the check it could not be said that it had no value.
2. Sureties upon a constable's bond — liability of, where exempt property
is seized and sold under a judgment — objection is unnecessary] The sureties
upon the official bond of a constable, who, under an execution against a
householder, seizes a stove, sewing machine, linen and wearing apparel and
other personal property, the value of which amounted to less than fifty dol
lars, and which comprised all of the household furniture belonging to the
householder, and was, therefore, wholly exempt, are liable to the house-
holder for the value of the property, notwithstanding the fact that the latter
did not forbid the sale. GRIEB v. NORTHRUP...
3. Judgment obtained in part for exempt property.] The fact that the exe-
cution, under which the levy was made, was issued upon a judgment against
the householder, obtained in part for exempt personal property, does not
relieve the sureties from liability. Id.
4. The constable need not be first sued.] The official bond of the con-
stable covers his illegal acts, and it is not necessary to sue the constable first
in order to enforce the liability of the sureties thereon. Id.
EXECUTOR AND ADMINISTRATOR — Reference of a claim against a
decedent's estate-when the existence of a counterclaim thereto does not give a
justice of the peace jurisdiction thereof costs including disbursements, awarded
by the referee where the recovery because of the counterclaim is less than $50.] 1.
A claim of $114 and interest against a decedent's estate for the use of a right
of way having been rejected by the administratrix, a reference of the claim
was ordered pursuant to the statute. The referee allowed the claim of the
plaintiff in full, but credited the defendant with the amount of a note, which
she held against the plaintiff and a third party, on which there was con-
cededly due the sum of $113.86. He, therefore, rendered judgment in favor
of the plaintiff for the balance of her claim "besides the referee's and
stenographer's fees and the disbursements of the action." The counterclaim
grew out of a transaction entirely independent of the claim presented.
On a motion for retaxation the Special Term granted costs to the defend-
ant and disallowed the disbursements allowed by the referee to the plaintiff.
Held, that the original taxation should be confirmed;
That section 2863 of the Code of Civil Procedure, as amended by chapter
527 of the Laws of 1895, which gives a justice of the peace jurisdiction of a
demand against an executor or administrator "where the amount of the
EXECUTOR AND ADMINISTRATOR― Continued.
claim is less than the sum of fifty dollars, and the claim has been duly pre-
sented to the executor or administrator and rejected by him," did not render
it incumbent upon the plaintiff to bring the action in the Justice's Court, as
it was entirely optional with the defendant whether or not to offer the note
as a counterclaim;
That the provision of section 2718 of the Code of Civil Procedure, requir-
ing the claim to be supported by an affidavit "that no payments have been
made thercon and that there are no offsets against the same to the knowledge
of the claimant," does not establish that the amount, of the claim is the sum
remaining unpaid after deducting existing offsets or counterclaims;
That section 317 of the Code of Procedure, providing that on a reference
pursuant to the statute, "the prevailing party shall be entitled to recover
the fees of referees and witnesses and other necessary disbursements to be
taxed according to law," has not been repealed and is still in force.
2.- Power of the Special Term over the costs and disbursements.] Quære.
as to the power of the Special Term on a motion for retaxation of costs to
strike out the allowance of disbursements to the plaintiff and award costs to
the defendant. Id.
![[ocr errors]](https://books.google.com.bd/books/content?id=6okLAAAAYAAJ&output=html_text&pg=PA656&img=1&zoom=3&hl=en&q=payment&cds=1&sig=ACfU3U30bxa6XuEEzaWS9pZ4D3EB0BCP8A&edge=0&edge=stretch&ci=692,614,6,4)
Dividend stock, refused by a cestui que trust entitled to the income of
an estate, and paid for by the executor out of his own money · when the Statute
of Limitations runs in his favor what decree does not change his relation from
that of executor to that of trustee.] A testator who died in 1864 directed that
the use and income of his property should be paid to his widow during her
life, with remainder to his daughters. The estate included thirty-five shares
of the stock of a railroad company. In 1869 a stock dividend of twenty per
cent was declared upon such stock, upon terms requiring the payment of
$50 for each share of dividend stock. The widow declined to take advan-
tage of the offer of the railroad company, whereupon the executor of the will
accepted the seven shares of dividend stock, paying therefor the sum of $350
from his individual moneys. After the death of the widow in 1878 the exec-
utor rendered an account of his proceedings in the Surrogate's Court, upon
which the auditor who state the account found that the title to the seven
shares of dividend stock was disputed between the residuary legatees and
the heirs of the widow, and that the executor still retained said stock and
should retain it "for the present." The report was confirmed by a decree
which directed that the seven shares of dividend stock should remain in the
executor's hands "until the dispute is settled."
In 1897 an administrator with the will annexed of the widow instituted a
proceeding to compel the executor to account for the seven shares of divi-
dend stock, alleging in his petition that the executor had been frequently
requested to deliver such stock both before and after the decease of the
widow.
Held, that the right of the widow to enforce her claim upon the stock
accrued upon the refusal of the executor to deliver the same to her, and that
as she died in 1875 the proceeding was barred by the ten years' Statute of
Limitations;
That the decree rendered in 1878 did not operate to change the executor's
relation to the seven shares of dividend stock from that of executor to that
of a trustee of an express trust. MATTER OF SMITH..
Surrogate's decree settling an intestate's estate — a brother of the intes-
tate, not notified of the proceeding, is not entitled to a new accounting but may
have the decree opened.] Where the estate of an intestate has been divided
among her cousins, in pursuance of a decree made upon the judicial settle-
ment of the accounts of the administrator adjudging them to be the sole
heirs at law and next of kin of the intestate, a brother of the intestate, who
was not cited to appear on the accounting, is not entitled to maintain a
proceeding to require the administrator to account de novo, but his remedy
is to make a motion to have the original accounting and decree reopened.
Costs.] If he mistakes his remedy and institutes a proceeding to
compel the administrator to account de novo, the surrogate may properly
impose costs upon him personally. Id.
|