The only defense made on the trial was, that the mortgage was not a valid lien on the mortgaged premises; and that the taking of said bond and mortgage by Hasbrouck, while trustee, was "in contravention of the trusts expressed in said trust deed." tenements," and, with the exception sale of the interest of the mortof the two lots in question, he was gagors in the premises, and to a to sell the same and pay debts, &c. judgment for the deficiency. The As to these two lots, he was "to sale to be subject to the trusts in pay all taxes on the same, to rent favor of James Jansen, the grantor the same from year to year" during in the trust deed. the lives of the grantors, and "to apply the rents, after deducting all expenses and costs of executing, the trusts in relation thereto, to the use and benefit of the grantors and the survivor of them," and upon the death of the grantors, to convey, transfer and deliver the said two lots of land to the defendant James H. Jansen, "his heirs and assigns, to have and to hold the same to his and their use, benefit and behoof, forever." Hasbrouck, at the time he took the mortgage in question, was in the execution of this trust, and so remained until his death, in July, 1875. Nothing was paid upon the mortgage during his life. After the commencement of this suit was appointed by the Court, to succeed the D. M. De Witt, for applt. Held, That the mortgagor had a vested interest in remainder in the mortgaged premises, at the time he gave the mortgage, to commence in possession on the determination of the precedent estate, created at the same time, by the same instrument. That it was not necessary to his a trustee right to mortgage that the mortSupreme gagor should have a present right of deceased possession. It was sufficient that trustee. James Jansen, the grantor he had a vested interest in the in the trust deed, was still living. premises. The plaintiff obtained the bond and That the mortgagor had a mortgagmortgage, by assignment from able interest in the mortgaged Hasbrouck's administrator, as a premises at the time he executed portion of her share as one of the next of kin of Hasbrouck, her father. The court decided, as matter of law, that the mortgage was a valid and subsisting lien on the premises, and capable of being enforced as against the mortgagor; that the taking of the bond and mortgage was not in contravention of the trusts expressed in the trust deed; and that the plaintiff was entitled to a decree of foreclosure and for the the mortgage. That the taking of the mortgage by the trustee was not, in any respect, in contravention of the trust, as it could not operate to the injury of the trust. That the lien of the mortgage was subject to the trust and to its proper and just execution. Judgment affirmed, with costs. Opinion by Bockes J.; Boardman, J., concurring. DEED REFERRING TO MAP. N. Y. SUPREME COURT. GENERAL thereof, and had the right to do whatever was done on the premises; and also alleged that the plaintiff had no right, title or interest in the premises described in the complaint, nor in or to the possession. In 1866, C. Hathaway, being the owner of a farm situated within the James Boyd, respt., v. Robert Sin- limits of the village of Delhi, caused clair, applt. Decided April 8, 1880. the same to be mapped and laid out into village lots, with intervening streets. The lots were marked on the map, and the streets were projected thereon and named, one of which was Cross street, being One H., the owner of a farm, caused the same to be mapped and laid out in village lots and streets, and sold one of said lots to plaintiff's grantor, the deed describing it by express reference to the projected street, and con- the street here in controversy. The taining a diagram, a transcript from the map, showing the adjacent streets. Held, That the map being referred to in the deed and being identified, the grantee acquired the right to the use of the street laid down on the map as an easement appurtenant to the lot conveyed, by virtue of the grant itself, and that the grantor and those claiming under him were estopped from denying such right. Appeal from a judgment entered upon the decision of Justice Murray, before whom the cause was tried without a jury. lots and streets, or some of them, had been surveyed, and were staked off on the ground as represented on the map. Hathaway conveyed one of the lots designated on the map to Mrs. Northrup, the deed to her describing the lot by express reference to the projected streets; and the lot and its boundaries were pointed out to her. And the deed had a diagram indorsed upon it, showing the situation of the lot conveyed, with the adjacent streets laid down The complaint alleged that the and named thereon, which diagram plaintiff had a right of way across was a transcript, on a smaller scale, a certain strip of land in the village of the map of the larger tract. The of Delhi, between Clinton and plaintiff succeeded to the rights of Franklin streets, and that the de- Mrs. Northrup under this deed. fendant had unlawfully dug up and The defendant, for and in behalf of obstructed this right of way. The his wife, claimed exclusive right to plaintiff demanded a judgment for the occupancy of Cross street, by damages, and that the defendant title derived from the devisees of might be required to restore said Hathaway, and proposed to close right of way to its original state, the street, which bounds the plainand be restrained from obstructing tiff's lot on one of its sides. the same. The answer denied the complaint, and alleged that the wife of defendant was the owner, in fee, of this land, and was in possession The judge found and decided that the plaintiff was entitled to judgment that the defendant be forever restrained and enjoined from dig ging up or building on said Cross RELIEF FROM STIPULATION. street, or interfering therewith as a N. Y. SUPREME COURT. GENERAL street, and that he be directed to remove all the obstructions he had placed therein, and restore the street to its former condition. Judgment was entered accordingly. Davie & Arbuckle, for applt. Held, That the question to be decided was not one between the pro prietor of land and the public, but was between a grantor and grantee, or by those claiming under them, with the same rights. That Mrs. Northrup and the plaintiff, claiming through or under the conveyance to her, made their right by virtue of the grant. That Mrs. Northrup thereby secured an easement-a right to the use of the street-which, by force of the grant, became attached to her lot; and the plaintiff, her successor in title, might be protected in his enjoyment of it. That the map being referred to in the deed, and being identified, the grantee acquired the right to the use of the street delineated on the map as an easement appurtenant to the lot conveyed, by virtue of the grant itself. That the decision might also be placed on an application of the doctrine of estoppel in pais. Judgment affirmed, with costs. Opinion by Bockes, J.; Learned. P. J., and Boardman, J., concurring, TERM. FIRST DEPT. The court in the exercise of its discretion may Appeal from order setting aside stipulation signed by the respondent's counsel. This action, which was brought by the plaintiff to annul certain leases from the plaintiff to the defendant, was tried and a decision rendered in favor of the plaintiff. Thereafter the defendants made a motion for leave to reopen the case and introduce certain evidence with fund at certain dates, and such aprespect to the amount in the sinking plication was granted. Afterwards a stipulation was prepared by defendant's counsel admitting, among other things, the amount of the sinking fund at certain dates, which stipulation was signed by the plaintiff's counsel, but the plaintiff's attorney, and the counsel for the corporation, declined to sign such stipulation, and made a motion to be relieved from such stipulation, upon the ground that it would have the effect to seriously prejudice the plaintiff's case, and would operate as an estoppel against plaintiff's asserting certain legal propositions. The application was granted, and the defendant was left to introduce such evidence as he saw fit under the order giving him leave to introduce further evidence with respect to the sinking fund. B. D. Silliman, for applt. the acceptor of a draft. The court. below found that one S., on the 4th Held, The court, in the exercise of of April, 1872, at Montreal, Canits discretion, may relieve litigants ada, made his bill of exchange, from stipulations signed by counsel dated on that day, and directed to when either unadvisedly or inad- the defendant, and thereby required vertantly signed, or when under cir- the defendant to pay to the order cumstances revealed the stipulation of himself $3,000 in gold three should not be held. months after date; that the defend This rule should be followed par- ant accepted the bill in writing, and ticularly in a case in which a muni- that the acceptance was without cipality is one of the parties, and consideration and for the accommothe stipulation is signed by counsel dation of the drawer. That on the representing it. If there be any difference made in the application of the rule, it should be more liberally extended under such circumstances. We think the discretion was properly exercised, and the order made should be affirmed, with $10 costs and disbursements. Opinion per curiam. PAYMENT AND PURCHASE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. L. Tourville, applt., v. J. Gregory Smith, respt. Decided April 7, 1880. fifth of April, 1872, it was discount- Jas. McKeon, for applt. Held, By the payment under the circumstances disclosed the plaintiff was not subrogated to the rights of the bank to which the payment had been made. Unless the bill was The payment to the holder, by an outsider, for his own benefit, of the amount of an acceptance in suit, together with the costs of suit, where nothing was said or done to show that the holder intended to sell the acceptance to the person paying the money, extinguishes the debt. The person paying the money does not take the rights of the holder, and cannot bring an action upon the debt thus extinguished by payment. Appeal from judgment rendered transferred by the bank-such beat Special Term dismissing the ing the intention of the parties at complaint. the time the payment was madeAction upon an acceptance against the plaintiff is not entitled to re cover. The officers of the bank bark was seriously damaged and were under no obligation to make a disabled by the perils of the sea, transfer of the bill, and there is and without funds or means to meet nothing in the circumstances de- the necessary expenses of repairs tailed by the witnesses from which an intention to do other than accept the payment of it and discharge it can be inferred. Judgment affirmed. Opinion by Brady, J. MARINE INSURANCE. TERM. FIRST DEPT. Gustavus G. Wright et al, respts., v. John S. Williams, applt. Decided March 5, 1880. and supplies. Also, that after making such advances at the port of Rio de Janiero to the master, and after the bark had set sail for Baltimore, plaintiffs procured a policy of insurance, "on advances on vessel and cargo, free of general and particular average, and without reclamation. " That afterwards said bark became seriously damaged and disabled and was obliged to put into Bahia in the empire of Brazil, and that after having arrived at Bahia the said bark was found to be irreparable, unfit, and unable to proceed on her said voyage, and on or about the 6th day of December, 1867, was duly condemned and sold, and never did arrive at the port of Baltimore, and that the plaintiffs thereby lost their lien and interest upon and in the said vessel, and their said advances to the extent to which they were chargeable to said vessel. That the cargo of said bark Flora was removed and reshipped on board the schooner Lundi, and after As a contract of indemnity to the assured a policy of marine insurance is to be liberally construed, and where the language of the promissor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promissee. The terms" on vessel and cargo," in a policy of insurance, insuring advances thereon, may be interpreted and construed as insurance upon the advances on the vessel and cargo severally and not jointly, in case the language used is indeterminate and the promissee probably so understood the expression used. While it is a general rule in insurance free of wards arrived in safety at the port particular average that the underwriter is of Baltimore. the policy as a total loss where the value to the owner is gone, although there may not have been an absolute total loss of the thing. only liable for total loss, yet there may be a The demurrer was on the ground total loss which will permit a recovery upon of insufficiency, and the points made were that the insurance was upon advances on both vessel and cargo unitedly, as an integral subject, and as the cargo arrived in safety no recovery could be had, and furthermore, that as the policy was upon the advances free of particular average, no recovery could be had, as there was not a total loss. Appeal from an order of Special Term overruling the defendant's demurrer to the plaintiffs' complaint. Action upon a policy of marine insurance. The complaint alleged advances by the plaintiffs to the master of the bark Flora while such Treadwell Cleveland, for applt.. |