Page images
PDF
EPUB

faith, of a draft so effected, is no payment at all, as to the true owner. Graves v. Bank, 17 N. Y. 205. It was the defendant's business to see to it that its depositor's moneys were expended according to its directions; and every expenditure was at the defendant's risk of the direction being valid, and the indorsement convey ing title to the holder genuine. Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74, 81. Counsel says the proper remedy was to sue for the deposits. That is not so. Here the cause of action is the breach of the implied and conceded contract to pay out the plaintiff's funds according to its drafts and order. The remedy was to sue for the breach, and to recover against the defendant in an amount equal to the amount of the plaintiff's drafts which were refused payment. That the plaintiff repaid to W. & Co. the moneys they had paid to it to obtain these drafts, and thereby reacquired the paper, is wholly immaterial as long as the action is not upon the drafts themselves. If the plaintiff was suing upon this paper through a derivative title from W. & Co., it would be a very different question indeed. But the payment back of the moneys to W. & Co. established the damage, and its extent, to which the defendant's act subjected the plaintiff. The acquisition thereby, and the holding and exhibition of the dishonored drafts, are evidences of the facts constituting the cause of action. In recent cases this court has passed upon similar questions as to the rights of drawers of checks, to which we may in fact liken this paper. In Bank of British N. A. v. Merchants' Nat. Bank, 1 N. Y. 111, the case shows the payment by the defendant bank of a check given by the plaintiff bank to H., and made payable to her order. Her indorsement was forged, and the money collected by another person. When the facts of the forgery and of the payment were discovered, the action was commenced. It is true the only defense was the statute of limitations; but Earl, J., in his opinion, which was concurred in by all the judges, said: "When the defendant paid the check upon the forged indorsement, it paid its own money, and discharged no part of its indebtedness to the plaintiff. * * *The plaintiff lost none of its rights by receiving, under a mistake as to the facts, the check as oue properly paid and charged to its account by the defendant." But later, in the case of Viets v. Bank, 101 N. Y. 563, this rule was laid down, that "the refusal to pay on presentation of the check, which pre. sentation is equivalent to a demand of payment, gives to the drawer a right of action, in case he has funds in the bank to meet the check, and the refusal to pay is without his authority." This doctrine, I find, has the distinct support of a decision of the King's Bench in the case of Marzetti v. Williams, 1 Barn. & Adol. 415. That was an action by the drawer of a check against his bankers for failing to pay it to the payees named therein on presentation. The dishonor was through some inadvertence of the bankers; and, as a matter of fact, the check, being presented the next day, was then paid. Lord Tenterden held that the action was maintainable as one founded on the banker's implied contract with his customer that he will pay checks drawn by him, provided he has moneys of the customer, and a breach of that contract was created when the defendants would not pay the check. Nominal damages were awarded the plaintiff in that case, though he might not have sustained a damage in fact. Justices Parke, Taunton and Patteson agreed with Lord Tenterden, holding that it was immaterial whether the action was, in form, tort or assumpsit. The rule is well supported in principle as by the authorities, and governs this case. The damage to the plaintiff here was not merely nominal, for the dishonor of its drafts, but actual, for the amount represented by them, and which the plaintiff had to make good to the payees. (2) In a suit on such cause of action, a complaint which, after describing the draft, and the proceedings up to protest.

66

alleges that at the time of defendant's refusal to pay it had on deposit enough of plaintiff's money to pay such draft, and that by reason of such refusal, plaintiff has been compelled to pay the amount due, though seeming to ground the action upon the draft itself, instead of upon the refusal to pay, is sufficient, as containing a plain and concise statement of the facts constituting the cause of action," as required by the Code of Civil Procedure of New York, section 481. (3) In such an action, where the only plea is payment, evidence that the plaintiff has made a settlement with the forger of the indorsement is inadmissible in defense. Jan. 28, 1890. Citizens' Nat. Bank v. Importers & Traders' Nat. Bank. Opinion by Gray, J. Affirming 44 Hun, 386.

CONSTITUTIONAL LAW-LOCAL LAWS-LEGISLATIVE POWERS.-(1) Laws of New York, 1887, chapter 205, entitled "An act to legalize the acts and proceedings of the town board and the town board of auditors of the town of Attica, in relation to the erection of a certain irou bridge in said town, and the acts and proceedings of the annual town meeting of said town held February 22, 1885, in relation to said bridge, and the acts and proceedings of the highway commissioner of said town in relation to said bridge," provides that the town shall not be required to pay the contract price of said bridge, nor the amount audited by said town board therefor, but authorizes the contractor to sue the town for a reasonable compensation for the bridge. Held, that it is not in conflict with the Constitution of New York, article 3, section 16, which prohibits the Legislature from passing any local or private bill having more than one subject, which shall be expressed in its title. In re Mayor, 99 N. Y. 569. (2) The fact that a just claim against a town has been declared invalid by the courts, because founded on informal corporate action, does not prevent the Legislature from validating the claim by legalizing the defective proceeding. Town of Guilford v. Supervisors, 13 N. Y. 143; Cole v. State, 102 id. 48. Jan. 28, 1890. Wrought Iron Bridge Co. v. Town of Attica. Opinion by O'Brien, J. Affirming 2 N. Y. Supp. 359.

CONTRACTS-RESTRAINT OF TRADE-RECEIVERS.—(1) Plaintiff, a manufacturer of carbons for electric lights, entered into a contract with a third person, and other carbon companies, whereby the third person was made trustee for all the parties thereto for the management and control of the business of manufacturing and selling carbons. The several companies leased their factories to the trustee, and agreed to operate them uuder his direction, he to designate the kind of goods to be manufactured, fix the prices at which, and persons to whom, they should be sold. At the time the contract was made, plaintiff had an outstanding contract to furnish carbons to an electric light company, which contract was assigned to the trustee, who assumed the performance. In performance of the contract the carbons were manufactured and delivered to the electric light company, billed in the name of the trustee. Afterward plaintiff repudiated the contract with the trustee, and refused to continue in the combination. A receiver having been appointed for the combination, which was insolvent, the electric light company paid into court the money due on the carbons delivered to it by the trustee. Held, that the fact that the contract employing the trustee was illegal as in restraint of trade could not be relied upon by the plaintiff in an action against the receiver to recover the amount thus paid into court. (2) Plaintiff's repudiation of the contract after the delivery of the carbons did not constitute it the vendor thereof. (3) The receiver being the representative of the creditors of the combination as well as the trustee, his right to the money paid into court cannot be defeated on the ground that the trustee had no right thereto because of the illegality of the

contract.

The general rule is well established that a receiver takes the title of the corporation or individual whose receiver he is, and that any defense which would have been good against the former may be asserted against the latter. But there is a well-recognized exception, which permits a receiver of an insolvent individual or corporation, in the interest of creditors, to disaffirm dealings of the debtor in fraud of their rights. Gillet v. Moody, 3 N. Y. 479; Porter v. Williams, 9 id. 142; Curtis v. Leavitt, 15 id. 9, 108. Assuming that the trustee could not have recovered of the Brush Electric Light Company, for the reasons suggested, it would be a very strange application of the doctrine that no right of action can spring from an illegal transaction which should deny to innocent creditors of the combination, | or to the receiver who represents them, the right to have the debt collected, and applied in satisfaction of their claim. The just rule of the common law, that the courts will not lend their aid to enforce illegal transactions at the instance of a party to the illegality, would be misapplied if permitted to be used to prevent the recovery and application of the fruits of the transaction for the payment of honest creditors. Jan. 14, 1890. Pittsburgh Carbon Co. (Limited) v. McMillin. Opinion by Andrews, J. Reversing 6 N. Y. Supp. 433. CORPORATIONS-STOCKHOLDERS-FALSE REPORTSVALUE OF PROPERTY.—(1) Under Laws of New York, 1875, chapter 611, section 21, providing that, if any certificate or report made by an officer of certain business corporations" shall be false in any material representation," the officers signing it shall be liable for all debts of the corporation contracted while they are officers thereof, and section 14, requiring property received for stock to be received at its fair value, directors certifying that the capital stock is all paid in full are so liable where the payment is in land at much more than its fair value, and it is not necessary that they should have known its falsity. Torbett v. Eaton, 113 N. Y. 623. (2) A request to charge that by the requirement that property in subscription for stock be received "at its fair value" is meant its fair value for the purposes of the corporation, and not its actual market or intrinsic value, was refused by the court, saying that he knew of no value other than intrinsic or market value, but charging that, in determining its fair value, the jury could consider its value and adaptability for the uses to which it was to be put. Held, no error. (3) lu au action to enforce the individual liability of directors on the ground that they have made a false certificate as to the payment of the capital stock, the books of the corporation are admissible in evidence, so far as the entries relate to the matter in issue, and also to show that the debt sued for was a debt of the corporation. Bank v. Tidele, 84 N. Y. 655; Blake v. Griswold, 103 id. 429. (4) In an action to enforce the individual liability of directors, the jury need not give them the

benefit of all reasonable doubt, a preponderance of evidence being sufficient. (5) The act making directors individually liable for the corporation's debts for making a false certificate is constitutional. (6) On a question as to the value of seaside property, evidence of the value of other seaside property, and opinions of witnesses founded on their knowledge of transactions in other seaside property not in the vicinity, are not admissible, though the property in question is without a market value, and its value depends on its advantages and capacity for improvement. Gauge v. Roberts, 53 N. Y. 619. (7) The price received for land at judicial sale is evidence, though slight, of its value when re. ceived by a corporation in payment for stock. (8) Authority to indorse a note for a corporation may be shown either by prior authority or subsequent ratification, and by general course of business, as well as by resolution. Second Division, Jan. 28, 1890. Huntington v. Attrill. Opinion by Bradley, J.; Potter, J., dissenting. Affirming 42 Hun, 459.

CORPORATIONS-STOCKHOLDERS-FALSE CERTIFICATE -TRIAL-VERDICT.—(1) Under Laws of New York of 1875, chapter 611, sections 4 and 5, providing for the issuing of a license to open books for subscription to the capital stock, on formation of a corporation, and that no subscription shall be received unless the subscriber pay at the time ten per cent of the par value of the stock subscribed for, and that when one-half of the capital stock has been subscribed the commissioners shall call a meeting for electing directors, the report of the commissioners stating the opening of the books, the subscriptions received and that each subscriber paid in cash ten per cent of his subscription, is competent evidence in an action to enforce the individual liability of directors for making a false certifi cate. (2) An opinion as to the value of land given in payment for stock subscribed, given without objec tion, cannot be stricken out as incompetent after a cross-examination of the witness, but an instruction may be required to give it no consideration. Gawtry v. Doane, 51 N. Y. 84; Marks v. King, 64 id. 628; Platner v. Platner, 78 id. 91; Stokes v. Johnson, 57 id. 673. (3) In an action to enforce the individual liability of directors for making a false certificate as to the payment in full of the capital stock, when it had in fact been paid in land at far more than its actual value, evidence is not admissible that the certificate was made at the suggestion of a director, formerly a plaintiff in the action, for the purpose of relieving the stockholder who conveyed the land from liability under Laws of New York of 1875, chapter 611, section 37, making stockholders liable for debts until a certificate is recorded showing payment in full of their stock. (4) It is proper, where there is no contest as to the amount of plaintiff's claim, if he is entitled to recover at all, when the jury return a verdict for plaintiff, but for less than the amount of the debt sued for, to send them back, with directious to find for the full amount in case they find for plaintiff. Second Division, Jan. 28, 1890. Hutch v. Attrill. Opinion by Bradley, J. Potter, J., dissenting. Affirming 41 Hun, 642.

EMINENT DOMAIN-STREET RAILWAY.-Under the New York Railroad Act of 1850, which allows a railroad corporation to condemn such land as is "required for the purposes of its incorporation," a company or ganized to construct and operate a street railroad along certain specified streets cannot condemn land for the purpose of constructing a railroad line, no part of which runs on said streets. Jan. 21, 1890. South Beach Ry. Co. v. Byrnes. Opinion by Finch, J. Affirming 6 N. Y. Supp. 172.

MASTER AND SERVANT-NEGLIGENCE-UNSAFE MA CHINERY EVIDENCE.-In an action against a master for the death of his servant, alleged to have been caused by the negligent use of unsafe mining ma chinery, whereby part of the machinery fell down the shaft and killed the servant, proof that the machinery fell upon the servant and broke is not sufficient proof of negligence, in the absence of any direct evidence that the machinery was insecure or unsafe. Jau. 28, 1890. Dobbins v. Brown. Opinion by Ruger, C. J. Reversing 48 Hun, 617.

MUNICIPAL CORPORATIONS-EXTENSION OF STREETS -CONDEMNATION-TITLE.-(1) In condemnation proceedings for the purpose of building a sewer across cer tain lands in the city of Yonkers, which it was claimed was a continuation of one of the city streets, it appeared that in 1840 the street terminated some distance east of the shore-line of the river, which at that place formed a bay; that prior to that year the city had built a pier several hundred feet south of the south line of the street extended, and running out into the river seven hundred feet; that afterward a railroad company built solid embankments from the northern headland of the bay, through the river, to the pier, st

a distance of three hundred and fifty feet from the old shore-line, leaving merely a culvert four feet wide, through which the water of the river could flow, which embankment practically formed a new shore-line. The bay between the old shore-line was partially filled in, and in 1856 the street in question was extended to a point one foot east of the railroad embankment. Subsequently filling in was done on the west or river side of the embankment, under a grant of lands under water, made by the State to the present owners' grantor. In 1870 land had been filled in to a distance of two hundred and forty-five feet west of the embankment, and in that year the owner of the land dedicated a portion of it, extending to a point five feet west of the west line of the railroad embankment, for a public street, and the street in question was extended to that point. Held, that as in fact the street never reached the old shore-line of the river, the filling in of the lauds could not operate to extend the street to the new shore-line. (2) Proceedings for the condemnation of lands for public purposes cannot be made the means of trying the title to such lands, as between the public and the owner. People v. Lambier, 5]Denio, 9, distinguished. Jan. 14, 1890. In re City of Yonkers. Opinion by Peckham, J.

NEGLIGENCE-DANGEROUS PREMISES.— Plaintiff, a customer in defendant's store, fell in going down in the day-time a flight of stairs leading from one department to another. The stairs were properly built, about fifteen feet wide, and carpeted to a width of nine feet in the center, but on the uncarpeted part, next to the railing, was a form for exhibiting clothing, and there were no footholds, brass plates or rubber pads on the steps. Held, that there was no evidence of defendant's negligence to submit to a jury. Jan. 31, 1890. Larkin v. O'Neill. versing 1 N. Y. Supp. 232.

ment of the insecurity of the platform would not excuse defendants if the failure to ascertain the defect before that was due to want of proper or competent inspection, is not erroneous. Dec. 20, 1889. Murray v. Usher. Opinion by Andrews. J. Affirming 46 Hun, 404.

PARTNERSHIP-ASSIGNMENT-EXECUTION-FRAUDEVIDENCE.-(1) Au assignment of the assets of a general partnership, consisting wholly of personal property, for the benefit of the partnership creditors, when expressed to be made by the firm, and signed in the firm name by one of the partners, is not void on its face. Klumpp v. Gardner, 114 N. Y. 153. The case at bar is not like Sutherland v. Bradner, 116 id. 410, in which an attempt was made to validate an assignment by amendment after a creditor had acquired a lieu on the assigned property. (2) When such an assignment is attacked by creditors as fraudulent, evidence that one of the partners never said any thing about the assignment to the partner who signed it, except "It is pretty tough,” and “If we must do it, then we must;" and that another partner questioned the validity of the assignment as to part of the assets, but turned over to the assignee, the firm assets left in his hands after winding up his branch of the business—is insufficient to sustain a finding that the assignment was made without the authority or assent of the partners who did not sign it. Second Division, Jan. 31, 1890. Hooper v. Baillie. Opinion by Follett, C. J. Reversing 44 Hun, 623.

claimed was Opinion by O'Brien, J. Re

-EVIDENCE- INSTRUCTIONS.

(1) In an action for a defective crossing it appeared that as plaintiff was driving his load of straw off of platform scales ou a curve, and cramping the wagon, a hind wheel was forced into a hole, and the load upset. Held, that defendant could show that on the next day, as the wagon was being turned when loaded, the bolster dropped down behind the hound, nearly causing the upsetting of the wagon, as tending to show a defect contributing to the accident. Quinlan v. City of Utica, 11 Hun, 217; affirmed in 74 N. Y. 603; Hill v. Railroad Co., 55 Me. 438; Dougan v. Transportation Co., 56 N. Y. 7; Darling v. Westmoreland, 52 N. H. 401; Cocheron v. Ferry Co., 56 N. Y. 656; Kent v. Lincoln, 32 Vt. 591; Smid v. Mayor, etc., 49 N. Y. Super. Ct. 126. (2) The issue being as to whether the proper part of the crossing was selected by the driver, an instruction that mere error of judgment in that matter would not be negligence is erroneous, as not limiting it to the judgment of a man of ordinary and common prudence. Second Division, Jan. 31, 1890. Hoyt v. New York, L. E. & W. R. Co. Opinion by Potter, J. Bradley, J., dissenting. Reversing 42 Hun, 657, mem.

OF FELLOW-SERVANT ACTION-EVIDENCEINSTRUCTIONS.-(1) In an action for personal injuries caused by the negligence of a fellow-servant, who is made a party defendant, where, on the trial, no exception is raised to the maintenance of the action as against the servant, such question cannot be raised for the first time on appeal. (2) Evidence to the effect that defendants paid the expenses of support of the person injured, and upon his death from such injuries, paid the funeral expenses, is inadmissible in bar or in mitigation of damages, in the statutory action by his administrator, given by act of New York of 1847. (3) Where the injury is caused by the falling of a platform, an instruction that the sudden develop

|

-

ACCOMMODATION

PLEADING COUNTER-CLAIM PAPER-EVIDENCE.-(1) In an action on a promissory note, where defendant set up as counter-claim a note executed by plaintiff in his favor, and which plaintiff an accommodation note merely, and without consideration, it appeared that plaintiff and defendant had been in the habit of exchanging notes from time to time, each of the same date and amount. It was also shown, that on the date the note set out by defendant as a counter-claim was executed by plaintiff, defendant had given him a note of the same amount in exchange, which note plaintiff had discounted, and allowed to go to protest, whereupon defendant, as maker, had been obliged to pay it. Held, that this evidence tended to show that the note held by defendant was not accommodation paper merely, but was given for the consideration of defendant's note of equal amount in favor of plaintiff. (2) In such case another note, made by defendant in favor of plaintiff, a short time before the note counter-claimed became due, is not admissible to show that on that date defendant received the amount named in such note to apply in payment of the counter-claim. (3) The sole issue being whether the counter-claim was without consideration, notes given by defendant to plaintiff, after the counter-claim became due, being immaterial to the issue, are not admissible. (4) Under such an issue, evidence as to whether defendant ever claimed that plaintiff was indebted to him is immaterial. Jan. 14, 1890. Cohn v. Husson. Opinion by Finch, J. Affirming 6 N. Y. Supp. 897.

RAILWAYS-STREET STATUTES. (1) Under Laws of New York of 1874, chapter 478, requiring the Eighth Avenue Railroad Company to extend its route, and providing that when the extension shall be completed it shall use and operate its road "subject only to the provisions of the General Railroad Act of this State, with its amendments," that company is not relieved from its agreement to pay license fees to the city, as Laws of 1854, chapter 140, providing that common councils of cities shall not permit the construction of railroads, beginning and terminating in the city, for transportation of passengers, without consent of property owners on

LICENSE-CONSTRUCTION OF

the street, being in pari materia, will be considered as an amendment of the general act, and by this statute the common council is given power, when property owners consent, to grant authority to establish a street railroad upon such terms, conditions and stipulatious as it sees fit. (2) Though the grant of authority by a common council to operate a street railway on payment of certain license fees was invalid for lack of authority in the council, yet the grant and contract with the company having been ratified by Laws of New York of 1854, chapter 140, under which act, in part, the company was incorporated, the agreement to pay the license also became valid. (3) The passage of an ordinance imposing a penalty for failure to procure a license will not prevent the city from suing for the license fee. Second Division, Jan. 28, 1890. Mayor, etc., of New York v. Eighth Avenue Railroad Co. Opinion by Haight, J. Affirming 43 Hun, 614.

[merged small][ocr errors][merged small]

(1) Laws of New York of 1870, chapter 321, section 2, requiring claimants to "file their claims in the office of the canal appraisers within two years from the time said damages shall have accrued," does not, in case of continuous injury, bar a claim for damages accruing within the two years next preceding the filing of the claim. (2) Under Laws of 1883, chapter 205, section 10, giving the Court of Appeals jurisdiction where the amount in controversy is $500, an appeal from the board of claims will not be dismissed, though a large part of the claims presented are barred by the statute of limitations, where it appears from their dates that an award may be made exceeding $500. Second Division, Jan. 31, 1890. Folts v. State. Opinion by Potter, J.

STATUTE OF LIMITATIONS-CONVERSION-INSTRUCTIONS. Where in an action for the conversion of bonds by a bailee, the statute of limitations is pleaded, and there is some evidence that defendant received from plaintiff a letter demanding the return of the bonds before the statutory period was begun, it is reversible error to refuse to instruct the jury that if such demand was made the plaintiff could not recover. Second Division, Jan. 31, 1890. Northrop v. Smith. Opinion by Vaun, J. Reversing 54 N. Y. Super. Ct. 562.

TOWNS RAILROAD AID BONDS APPLICATION OF TAXES.--(1) Laws of New York of 1869, chapter 907, section 4, as amended by Laws of 1871, chapter 283, providing that all taxes, except school and road taxes, collected by certain towns from a railroad in aid of which they should issue bonds, shall be paid into the sinking fund for the benefit of the towns, is constitutional. Following Clark v. Sheldon, 106 N. Y. 104. (2) Under such act, taxes, State as well as county, collected by the town from the railroad, and diverted to other uses by the county supervisors, may be recovered in an action by the town supervisor. Newman v. Supervisors, 45 N. Y. 676. (3) The town is not estopped by the acquiescence for many years of its member of the county board of supervisors in the diversion of the taxes to other purposes, though such use has pro tanto diminished its proportion of taxes for those purposes, the other members of the board being equally cognizant of the diversion, and the town liable to pay its proportion of the judgment recovered against the county. (4) An action for the taxes diverted to other uses is, in effect, for money had and received, and comes within the Code of Civil Procedure of New York, section 382, limiting actions upon contracts, express or implied, to six years. Roberts v. Ely, 113 N. Y. 128; Butler v. Johnson, 11 id. 204; In re Neilley, 95 id. 386. Jan. 28, 1890. Strough v. Bourd of Supervisors. Opinion by Andrews, J. Modifying and affirming 3 N. Y. Supp. 110.

TRIAL-SEALED VERDICT.—(1) In an action by a real estate broker for commissions, defendant contended that payment of commissions was conditional on the completion of the contract by the purchaser, but no question was raised as to the amount. The court charged, that if the jury found for plaintiff, he was entitled to the amount sued for. A sealed verdict finding for plaintiff, without specifying the amount, was delivered, and the jury discharged. Held, that the court properly amended the verdict by inserting the amount sued for. (2) In such case the affidavits of the jurors may be considered, to show what they intended to be understood as their verdict. Jan. 28, 1890. Hodgkins v. Mead. Opinion by Peckham, J. Ruger, C. J., dissenting. Affirming 5 N. Y. Supp. 433.

VENDOR AND PURCHASER-EXPENSE OF EXAMINING TITLE.-A vendor who fails to convey land according to contract, because the owner has failed to convey it to him as agreed, is liable to his vendee for the latter's expense in examining the title, though the vendee knew, when the contract was made, that the vendor had not yet acquired title. Conger v. Weaver, 20 N. Y. 140; Cockcroft v. Railroad Co., 69 id. 201; Leggett V. Insurance Co., 53 id. 394. The implied warranty of title in the vendor, which usually attends an executory contract for the sale of real property (Burwell v. Jackson, 9 N. Y. 535), is not applicable to this case, as the plaintiff was advised that the defendant did not have it when he made the contract. But it is not seen that such fact necessarily has any importance upon the question under consideration. The expectation and belief, on the part of the plaintiff, of performance by the defendant, which must be assumed in this case, may have furnished the same reason to the plaintiff for ascertaining the condition of the title as would have existed and induced him to examine it if the vendor had assumed to be the owner at the time he made the contract. The vendee in such a contract as this is not required to take any thing less than a good marketable title, and the precautionary means of ascertaining about it, by examination, before parting with the purchase-money and accepting conveyance, are properly made available by way of protection; and unless an understanding, in some manner, appears to the contrary, the examination of the title by the vendee, and the reasonable expense of making it, may be regarded as in the contemplation of the parties, and treated as properly incidental to the con tractual situation; and consequently the amount of such expense may, in the event of failure of the vendor to convey, be deemed special damages resulting from the breach, and recoverable as such. Bigler v. Morgan, 77 N. Y. 312. While the facts alleged in the answer, if established, may have relieved the defendant from liability for this expense of investigating the title, the facts as represented by the evidence do not furnish any reason for the modification, as applicable to this case, of the doctrine before stated. The defense is not aided by Dey v. Nason, 100 N. Y. 166. There the contract to sell and convey the land referred to in it never became binding as such, and whether it should become effectual was made dependent upon the approval by a third party designated by the contracting parties. And in that view Judge Andrews, in delivering the opinion of the court, very properly remarked: "If the defendants had owned the land described in the complaint, Tevis might not have approved of the exchange, in which case the same expenses might have been incurred by the plaintiff, and the same loss sustained, of which he now complains." In the case at bar the contract was, so far as appears, made by the parties in good faith, and they respectively assumed the obligation to perform it. The consequences of the breach were such as to justify the result given by the trial court. Second Division, Jan. 31, 1890. Northridge v. Moore. Opinion by Bradley, J.

WILLS CONSTRUCTION-RIGHTS OF SURVIVING DEVISEE. A testator devised land to his three sons, "and the survivor and survivors of them," and declared, that in case either died before him leaving issue, the share of such son should go to his issue. Two sons died before the testator; the first died childless, and the second left three children. Held, that the surviving son took two-thirds of the estate, as the word "survivor" relates to a class of which the sons constitute the whole. Second Division, Jan. 31, 1890. Davis v. Davis. Opinion by Parker, J. Affirming 44 Hun. 365.

[merged small][merged small][ocr errors][merged small]

Where the signatures of the testator and the subscribing witnesses, also deceased, are proved, and the provisions of the will are such as the testator would be

likely to make, the fact that one of the subscribing witnesses, who drew the will, kept it concealed for years after the testator's death, and denied that it had been made, will not prevent the will from being admitted to probate. (2) Where, upon a contest over a will, it is shown, to impeach a subscribing witness, that after the testator's death he said he would fabricate a will for the testator, it is competent to rebut this evidence by showing that before testator died, when the witness had no motive for deception, he said that the testator had made a will. Robb v. Hackley, 23 Wend. 50; 1 Greenl. Ev., § 469; Whart. Ev., § 570; Dudley v. Bolles, 24 Wend. 471; Gilbert v. Sage, 57 N. Y. 639; Hotchkiss v. Insurance Co., 5 Hun, 90; Assurance Co. v. Warner, 62 N. Y. 651: Wray v. Fedderke, 43 N. Y. Super. Ct. 335. Jan. 14, 1890. In re Hesdra's Will. Opinion by Ruger, C. J. Affirming 2 N. Y. Supp. 82.

CORRESPONDENCE.

LIMITING APPEALS TO UNITED STATES SUPREME COURT.

Editor of the Albany Law Journal.

An examination of the last volume of the United States Supreme Court Reports will convince any one that a large part of the time and energies of the court is expended upon cases that do not involve important principles of substantive law. For example, four cases, occupying thirty-seven pages, turn solely upon the question whether they were properly removed from the State courts; in nine cases filling sixty-four pages, portions of our beautiful tariff statutes are construed; while sixty pages are devoted to the consideration of ten patent cases, in all but three of which the patents were held invalid, eight of the patents being declared invalid because they did not cover any patentable subject-matter. Thus it will be seen these three topics fill one hundred and sixty-one of the seven hundred and one pages of the volume. It seems a pity that our highest court must have its calendar loaded down with such cases. Might not a careful study of the questions litigated in this court suggest methods of relieving it that would not call for a change in its composition? Yours respectfully, F. M. BURDICK, CORNELL UNIVERSITY, SCHOOL OF LAW, March 19, 1890.

[merged small][merged small][merged small][merged small][ocr errors]
[ocr errors]

lish? "Proven "-"Affiant" and " Expiry are bad enough, but they have some authority.

It is to be hoped that a newspaper report of a recent important opinion is responsible for some of the following:

*

*

[ocr errors]

* * ** *

it was simply a declaration of the way that the people wanted the government run. the enactment of the electric statute.". the Legislature had more chance of so determining than an appellate court."

People "run" hotels, gin mills, cotton mills and race horses; and in this country candidates run, though in England they "stand." But even this is recent and half slaugy, except as to candidates and horses; and if a government is to be "run" it might be well to teach it to walk first, then to trot, before starting it off on a full gallop.

The word "chance" used instead of " means" or "opportunity," might be considered a fling at prevailing methods of legislation but for the entire seriousness of the whole opinion, and the evident comparison of the chances of the Legislature to be well informed with the chances of the courts to do the same useful thing.

'The death penalty must be accompanied by pain, and is tolerated only because it is necessary for the protection of society." Governments tolerate minor offenses, the habitual violation of absolute statutes, and dissent from an established religion. But they inflict capital punishment. It may be inflicted reluctantly, with regret, and only "because it is necessary," but it is not tolerated either by government or by society, for society, in this sense, is government. If another power were to kidnap and hang our citizens, or subject them to the "chances" of an "electric statute, we might or might not tolerate such outrages.

[ocr errors]

After the distinct judicial determination that "the death penalty must be accompanied by pain," we, a little further on, have the following:

"On the contrary all agree with the (court below, that it removes every reasonable doubt that the application of electricity to the vital parts of the human body under such conditions and in the manner contemplated by the statute must result in instantaneous and consequently painless death."

NEW YORK, March 22, 1890.

SQUIB.

[merged small][merged small][merged small][ocr errors]

I think you put the verses in the rhetorical way and not in the poetical way

Story's poem, "Advice to a Young Lawyer," is a legal topic treated better in verse than it could have been in prose. The trouble with those lawyers who condemn the lawyer-poets is, they were not littered with the brush," and they seek to ridicule it out of fashion.

[ocr errors]

Yours,

J. B. DALEY.

PRATTSVILLE, N. Y., March 24, 1890. [The correct version of Story's couplet is: "Here shall the press the people's right maintain, Unawed." etc.

ED.]

« PreviousContinue »