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Bklyn. Svgs. Bk., 15 Abb. (N. S.), closure. Objection was made to the 297, distinguished.
sufficiency of the affidavits therein, Defendant requested the Court to and especially to the affidavit of pubcharge that if it exercised ordinary lication. This affidavit did not state care and diligence and paid in good in what paper the notice of the mortfaith, it was excused. This request gage sale had been published ; alwas refused.
though the affiant stated he was Held, no error; in the absence of foreman of a newspaper called the any rules assented to by its customers, “People's Journal.” The plaintiff a savings bank is to be governed by then offered to prove, aliunde, that the same legal principles which apply the notice was published
lished in the to other moneyed institutions. When “People's Journal.” The evidence it has prescribed rules and its deposi- was excluded, and the Court nontor has assented to them they are the suited the plaintiff for failure of agreement, and each party must keep proof. The plaintiff appeals. The it to preserve rights against the other. case has been twice to the Court of The duty of the saving bank will be Appeals. measured in some degree by the ex- Samuel Hand, for applt. tent or strictness of its rules. Ordi- Hughes & Northrup, for respt. narily it is bound to exercise reasona- Held, That the evidence was propble care and diligence, which will be erly excluded. When this case was a question of law or fact, as the proofs in the Court of Appeals for the first are conclusive or conflicting. time, 65 N. Y., 581, a very strict rule
Judgment of General Term, affirm- of construing such affidavits was ing judgment for plaintiff, affirmed. adopted. On the second appeal the
Opinion by Folger, J. All concur same rule was practically adopted by except Earl, J., not voting.
a majority of that Court. And since the Court then held, limiting the rule
excluding common law proof, that it EJECTMENT. EVIDENCE.
was not applicable to those affidavits N. Y. SUPREME COURT. GENERAL which are not mentioned in 2 R. S., m. TERM. THIRD DEPT.
p. 547, § 14, they by implication left Mowry, applt., v. Sanborn, respt. this rule in force as to those affidavits Decided September, 1877.
which are mentioned in that section The plaintiff, in support of his title, attempted (i. e., § 14). The affidavit of publicato prove a statute foreclosure. The affi- tion is defective, and it is mentioned davit of publication was defective. Held, in that section. We feel compelled That oral evidence was not admissible to hold, therefore, that the evidence to supply such defect in the affidavit; nor is such evidence competent with regard to
was properly excluded. any of the affidavits mentioned in 2 R. S., Judgment affirmed with costs. m.p., 547, § 14 (relating to statute fore- Opinion by Learned, P.J.; Bockes closures).
and Boardman, JJ., concur. The action was ejectment. It became necessary, in order to show the plaintiff's title, to prove a statute fore
CRIMINAL PRACTICE. committed, the prisoner might be conN. Y. SUPREME COURT. GENERAL victed. The Court added “the same TERM. THIRD DEPT.
being a sharp, dangerous weapon,”and The People, defts. in error, v. Casey, charged as requested. Thus the jury plff. in error.
must have found under this charge Decided September, 1877.
that the thing with which the assault The prisoner was indicted, under Chap. 74, was made was a sharp, dangerous
Laws of 1854, for an assault with a sharp, weapon. If the prisoner had desired dangerous weapon. No evidence was given the jury to find as to the character of as to the precise character of the weapon. I the weapon he should have made Held, That the jury might infer the character of the weapon from the nature of the in- proper requests. jury.
The conviction and sentence afThe defendant was indicted under firmed. Chap. 74, Laws of 1854, for an assault Opinion by Learned, P. J.; Bocker "with a sharp, dangerous weapon with and Boardman, JJ., concur. intent to do bodily harm.” No evidence was given as to the exact char
PARTITION.RECEIVER. acter of the weapon, and it was not proven that it was one of the
V. Y. SUPREME COURT. GENERAL mentioned in the statute of 1854. A
TERM. THIRD DEPT. physician testified to the nature of Dubois, receiver, respt., v. Cassidy, the injury, and that it was “ a pretty applt. severe wound.” At the close of the
Decided September, 1877. evidence the prisoner's counsel moved
A receiver, appointed in proceedings supple. the dismissal of the indictment, on
mentary to execution, cannot bring an action the ground that there was no evidence for the partition of real estate in which the to establish the offence charged. This
judgment debtor has an interest. was refused by the Court. The jury The plaintiff, a receiver in supplefound the defendant guilty as charged mentary proceedings, brought an acin the indictment.
tion for the partition of certain real John H. Colby, for plff. in error. property in which the judgment
L. E. Griffith and Melville Smith, debtor had an interest. A demurrer for defts. in error.
was interposed, one of the grounds of Held, That the jury might infer the which was that the plaintiff as receiver character of the weapon from the had not any estate of inheritance, as nature of the injury. There was evi- for life or years, in the real estate. dence before them from which they The demurrer was overruled. This might have decided that the weapon appeal is from the order overruling was sharp as well as dangerous. The the demurrer. prisoner's counsel requested the Court M. Schoonmaker and J. M. Cooper, to charge that the jury could not con- for applt. vict unless they found that the assault D. E. Keyser, for respt. was committed with one of the weap- Held, That the title of a receiver in ons mentioned in the statute, thus supplementary proceedings is not such admitting, by implication, that if so that he can bring an action for the partition of real estate of the judg- E. F. Bullard, for applt. ment debtor. 10 Hun, 68.
C. S. Lester, for respt. Order overruling demurrer reversed Held, That the word attachwith $10 costs, and judgment for the ment” in § 321, designates attachdefendant on the demurrer with costs. ment of the person, and not of prop
Opinion by Learned, P.J.; Bockes erty. and Boardman, JJ., concur.
But, further held, That that part of the order directing imprisonment
should be vacated. It is an absolute ATTACHMENTS AGAINST
commitment and not like a ca. sa. It THE PERSON.
is not warranted by 2 R. S., m. p., 535, N. Y. SUPREME COURT. GENERAL SS 4 and 5, and m. p., 537, § 19. The TERM. THIRD DEPT.
process ordered to issue would be Morrison, applt., v. Lester, respt. such as might be granted in case of a Decided September, 1877.
contempt under $$ 23, 24, 25 (supra). The phrase
There is nothing here showing the attachment," as used in § 321 of
Ile the Code of Procedure, designates attach assignee guilty of contempt. ment of the person and not of property. might be unable to pay. The statute The Court will not grant an absolute order seems to intend that when an attachimprisoning a party for non-payment of
ment is issued, the party on a return costs, under this section. The Revised Statates seem to intend that upon the return of thereto shall have an opportunity to an attachment, the party shall have an op- excuse himself for his alleged misconportunity to excuse his misconduct.
duct. § 19 (supra). This action was brought by Morri- Order reversed with $10 costs and son, and after it was at issue, one printing disbursements. Clarke took an assignment of the ac- Opinion by Learned, P. J.; tion and cause of action, althongh no- Bockes, J., concurs ; Boardman, J., tified that he would be held for the not acting. costs. The complaint was dismissed with costs. A motion was made under $ 321 of the Code of Procedure
NEGLIGENCE. PRACTICE. to compel Clarke to pay these costs. N. Y. SUPREME COURT. GENERAL He had refused to pay them, on de
TERM. THIRD DEPT. mand made. The Court made an
Wood, admrx., applt., v. Village of order that he pay them, and that pro- Andes. cess in the nature of an execution against personal property issue; it In actions for injuries produced by negligence,
it must be shown by direct proof, or from further ordered that upon the return
the circumstances, that the injured party of such process unsatisfied, the Sher
was not guilty of contributory negligence ; iff attach the body of said Clarke, in the absence of any evidence on this subcommit to the common jail, and de
ject, the plaintiff cannot recover. tain him there until he paid said The plaintiff's intestate was found costs. This appeal is from so much dead near or under a foot bridge in of the order as directs imprisonment the defendant's limits, under circumfor non-payment.
stances which led to the conclusion
that he had fallen from the bridge. grantor and a third party, whereby the latter
was to take up and cancel of record a morte Its condition was defective.
gage upon such premises. It was proved by the defence that the deed did not operate as an assignment of the deceased was intoxicated on the such promise. night of the accident, that he had
This action was brought for the been warned of the condition of the specific performance of an agreement bridge, and that there was a safe between one P. and defendant, by bridge within a few yards of this which P. was to give defendant a one. No one saw the accident. The
mortgage upon certain real estate for action is brought under the general $797, and defendant agreed by parol act. The plaintiff had a verdict.
to take up and cancel of record two John A. Scott, for applt.
mortgages upon the property, amountGeorge W. Clarke, for respt. Held, That in this class of cases it ing to $300, held by a savings bank,
Held, That in this class of cases it and advance the balance to P. The must be affirmatively shown by direct
mortgage was executed in accordance proof, given by the plaintiff or from with the agreement, and delivered to the circumstances, that the injured defendant. The premises were subparty was not guilty of contributory sequently conveyed to plaintiff by negligence, and where there is no warranty deed for a valuable considevidence on this point the plaintiff eration, subject to the mortgage to decannot recover. 58 N. Y., 248. The fendant. Defendant refused to indeceased was found dead, and there dorse a payment of $300 on his mortwas no proof that his own negligence gage or to cancel of record the other had not caused his death. This is a
Plaintiff did not strong case against the plaintiff; in know of this agreement when the crossing the bridge after he had been premises were conveyed to him. warned of the danger, and while he
R. B. Miller, Jr., for applt. was intoxicated, and when he could
Joseph Benedict, for respt. have safely crossed another bridge a
Held, That this action could not be few feet below, he was proved affirm- maintained; that the deed to plainatively to have contributed to the ac- tiff did not operate as an assignment cident.
of defendant's promise. It seems New trial ordered, costs to abide that the bank could have maintained event.
an action to enforce defendant's Opinion by Learned, P: J.; promise
. 20 N. Y., 268; 24 Id., 178. Bockes and Boardman, JJ., con- Order of General Term, reversing
judgment for plaintiff, and granting
new trial, affirmed, and judgment ab. SPECIFIC PERFORMANCE. solute for defendant on stipulation. N. Y. COURT OF APPEALS.
Opinion by Andrews, J.
All conMiller, applt., v. Winchell, respt. cur, except Rapallo and Miller, JJ., Decided September 18, 1877.
absent. An action cannot be maintained by the
grantee of real property to compel specific performance of an agreement between his
NEGLIGENCE. EVIDENCE. trial it was admitted that the defend
U. S. SUPREME COURT. ants owned the steamboat and elevaKellogg, plff. in error, v. The St. tor; that the mill was five hundred Paul and Milwaukee RR. Company. and eighty-eight feet from the eleva(Oct., 1876.)
tor, and that the nearest of the plainIn an 'action to recover damages for the de- tiff's piles of lumber was three hun
struction of buildings and property by fire, dred and eighty-eight feet distant from arising from defendant's negligence, the it. It was also admitted that there was question of title, as between the parties, to the ground on which the buildings and prop- conflict between the parties, plaintiff erty stood is immaterial.
and defendant, respecting the ownerWhere it is shown that the fire was communi- ship of the land where the mill stood
cated from one building to another, evidence and where the lumber was piled, both of insurance men, as experts, that the distance between them was such that the one
claiming under a common source of would not be considered an exposure to the title. The plaintiff had built the other in fixing the rate of insurance is inad- mill, and he was in the occupation of missible.
it, believing he had a right to be In order to warrant a finding that negligence,
there. or an act not amounting to a wanton wrong, is the proximate cause of an injury, it must
The Court refused to allow the appear that the injury was the natural and parties to try the title to the land probable consequence of such act or negligence, and ought to have been foreseen in upon which the mill and lumber had the light of the attending circumstances, and been placed, proof of title being, in that there was no independent, intermediate the opinion of the Court, immaterial.
The verdict of the jury was, 1st, that In error to the Circuit Court of the the elevator was burned from the United States for the District of steamer Jennie Brown; 2d, that such Iowa.
burning was caused by not using This was an action to recover com- ordinary care and prudence in not pensation for the destruction by fire landing at the elevator, under circumof the plaintiff's saw mill and a quan- stances existing at that particular tity of lumber, situated and lying in time; and 3d, that the burning of the State of Iowa, and on the banks the mill and lumber was the unavoidof the river Mississippi. That the able consequence of the burning of property was destroyed by fire was the elevator. uncontroverted. Plaintiff alleged the Held, That the proof offered was fire was negligently communicated perfectly immaterial to the issue befrom the defendant's steamboat Jen-tween the parties. By the law of the pie Brown to an elevator built of State of Iowa, "where an occupant of pine lumber and one hundred and land has color of title thereto, and in twenty feet high, owned by the de- good faith has made any valuable fendants, and standing on the bank improvements thereon, and is afterof the river, and from the elevator to wards in a proper action found not the plaintiff's saw-mill and lumber to be the rightful owner thereof," he piles, while an unusually strong wind is entitled to payment or credit for was blowing from the elevator to the value of his improvements. Code wards the mill and lumber. On the l of Iowa, SS 1976, 1977, 1978, 1979,