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covery of the judgments afterwards note and mortgage that they would showed Morrow was at that time a assign them to plaintiff to be held by creditor of Walker's.

her as security for an indebtedness of Held further, The proof sufficiently the mortgagor to her. showed that the conveyance was made J. A. Stull, for applt. by Walker to hinder and prevent

J. S. Garlock, for respts. Morrow from recovering the money Held, That plaintiff acquired a on any judgment he might recover in good title to the note and mortgage, the suit for the assault. This was 20 N. Y., 395; 32 Id., 543; and sufficient to give Morrow the right plaintiff, as assignee, was entitled to to have the real estate conveyed ap- recover the balance due her after deplied in satisfaction of his judgment. ducting all credits to the extent of ail

That the plaintiffs as sureties are that was due upon the note when so subrogated to all the rights of Mor- assigned. row, and are also entitled to have the Judgment of General Term, rereal estate applied in satisfaction of versing judgment of Special Term their judgment. 3 R. S., 5th ed., for plaintiff, reversed, and judgment 224, § 1; 28 N. Y., 271; Id., 275-6; of Special Term affirmed. 58 Id., 583.

Opinion by Rapallo, J. All conJudgment reversed and new trial cur, except Folger, J., absent. ordered, with costs to abide event. Opinion by Daniels, J.

ASSESSMENTS. ACTION TO

SET ASIDE.
MORTGAGE.
N. Y. COURT OF APPEALS.

N. Y. COURT OF APPEALS.
Hubbell, applt., v. Blakeslee et al.,

Boyle, applt., v. City of Brooklyn, respts.

respt. Decided October 9, 1877.

Decided October 2, 1877.

An allegation that the petition of property One who advances money to pay a note which

owners for the repaving of a street was not is secured by mortgage and, as a part of the same transaction, takes an assignment of

in fact made by a majority of the owners

of property fronting on such street, but was said note and mortgage, acquires a good title thereto, and may recover the balance due

fraudulently made up and had appended to

it a large number of names of persons who after deducting credits to the extent of the

did not sign it, but whose signatures were amount due on the note when so assigned.

taken from another document, is sufficient Reversing S. C., 3 W. Dig., 484.

to sustain an action to vacate the assessThis was an action for the fore

ment. closure of a mortgage which had Reversing S. C., 3 W. Dig., 321. been given as collateral to a note. It This action was brought to remove appeared that the debt had been paid a cloud from a title and to vacate by the wife of the mortgagor, with and restrain the collection of an asproperty belonging to her and money sessment for repaving in the city of contributed by plaintiff; that such Brooklyn. The complaint alleged payment was made pursuant to an that the proceedings appeared to be agreement between the mortgagor regular and a lien, but that the petiand his wife with the holders of the tion was not in fact made or signed by a majority of the owners of prop- Opinion by Rapallo, J. All concur, erty fronting on the street, but was except Folger and Miller, JJ., absent. fraudulently made up and had appended to it a large number of names SURETYSIIIP. SUBROGATION. of persons who did not sign it, but

N. Y. COURT OF APPEALS. whose signatures were taken from an

Morgan, respt., v. Smith, impl’d, other document. It also alleged that

&c., applt. a portion of the street is owned by

Decided September 25, 1877. certain persons in fee, and has never been legally taken as and for a public Where one co-surety has been released from

liability by the conduct of the creditor, the highway or street, and the persons

remaining co-surety is exonerated only as to signing the petition as owners front

80 much of the original debt as the dising thereon, were not. such owners charged surety could have been compelled and had not a right to be included to pay, had his obligation continued.

A release of one joint debtor by parol will among those who were entitled to

not operate to discharge the other, and can sign it, and without their names a only be pleaded by the one to whom it was majority of the owners had not given. signed the petition. Defendant de- Where there is a condition in a lease that

the lessee shall not sublet the premises murred, on the ground that the com

without the written consent of the lessor, plaint did not state any cause of ac- the giving of such written consent will not tion. The demurrer was overruled at discharge the sureties on the lease. Special Term, but that decision was

Where the rights of the creditor are reserved reversed on appeal to the General

against the surety, notwithstanding a new

agreement with the principal, and the sureTerm.

ty is compelled to pay, he is entitled to be Philip S. Crooke, for applt.

subrogated to the original rights of the Wm. C. De Witt, for respt.

creditor. Held, That the first allegation of Affirming S. C., 2 W. Dig., 346. the complaint was sufficient to entitle This action was brought against deplaintiff to the relief demanded; the fendants as joint sureties for the payproceedings being regular on their ment of rent. face, plaintiff would be obliged, in W. A. Butler, for applt. defending any claim or action based J. R. Flanders, for respt. upon the illegal assessment, to estab- Held, That one of two co-sureties lish by evidence that the signatures can only recover of the other the were fraudulently attached to the pe- amount he has paid in excess of the tition, as alleged; that the further al- moiety, which as between him and his legation of the complaint, if insuffi- Co-surety it was his duty to pay. 2 cient, might be regarded as surplus- B. & P., 268; 6 B. & C., 689; 1 sage, and that this allegation should Ch. R., 34; 2 B. & P., 270. When not vitiate or detract from the effect a co-surety has, by the conduct of the of the allegation first made.

creditor, been released from his liaJudgment of General Term re- bility, the remaining co-surety will be versed, and that of Special Term held exonerated only as to so much of affirned, with leave to defendant to the original debt as the discharged answer.

co-surety could have been compelled

185;

to pay had his obligation continued. GENERAL ASSIGNMENTS. 2 Bligh, 575; 6 Ves., 805; 2 Swanst., N. Y. SUPREME Court. ONONDAGA 2 Keen, 704. A release of one

SPECIAL TERM. joint debtor, by parol, will not oper

Edward B. Judson et al. v. Edate as a discharge to other debtors ward Abeel et al. jointly liable, and can only be pleaded

Decided October, 1877. by the debtor to whom it was given.

A general assignment for the benefit of credi.

tors, without preferences, which confers 2 J. R., 448; 7 Id., 209; 9 Wend.,

authority upon the assignee to sell the prop336.

erty “to the best possible advantage,” is It was provided in the lease that valid on its face. the lessees should not assign it, or let The only intent which will affect a general

assignment is the intent of the assignor at or under-let the whole or any part of

the time of making it; the subsequent mis. the premises without the written con- conduct of the assignee is no ground for sent of the plaintiff.

setting aside the assignment itself. Held, That the giving of such a This action was brought by the written consent by plaintiff would plaintiffs to set aside a general assignnot operate to discharge the defend- inent, without preferences, made by ants from their liability; that the Edward Abeel and Charles A. Fox to ground upon which a surety is hela John Yorkey, for the benefit of creddischarged when further time for itors. The first point raised related payment is given to the principal to the language used in the assigndebtor, is that the rights of the surety ment, immediately after the recital of are varied; but when the rights of the sale and conveyance of the propthe creditor are reserved against the erty to the assignee, and which lansureties, notwithstanding a new agree-guage was as follows, “In trust to ment with the principal, the situation sell and convey and dispose of the of the sureties is not varied, and the said real and personal estate and asrule does not apply. 18 Ves., 20. sets and to collect the judgments and When the creditor proceeds against choses in action, and to the best possithe surety in such case, and he pays, ble advantage to sell and dispose of he is then entitled to the place of the the real and personal property and creditor as it was originally, and may assets belonging to said first parties.” in turn enforce the agreement against

It was claimed by the plaintiffs the principal, who may not set up that the asignment was void on its against the surety the new arrange- face, for the reason that the words, ment with the creditor. 6 Ves., 805;" to the best possible advantage” 3 K. & J., 338; 16 N. & W., 126. vested in the assignee a discretion in

Judgment of General Term, affirm- relation to the manner of sale, and ing judgment on verdict for plaintiff, that in the exercise of that discretion affirmed.

he could sell on credit, if, in his judgOpinion by Folger, J. All concur, ment, such sale would be to the best except Rapallo, J., dissenting, and possible advantage, and therefore that Church, Ch. J., and Andrews, J., not the assignment contained an implied voting

authority to the assignee to sell on credit.

Upon the trial evidence was given is the intent of the assignor at the tending to show that the assignee sold time of making it; that the subsea stock of lumber, in pursuance of quent misconduct of the assignee is an advertisement for sealed proposals, not a ground for setting aside the asfor $2,501, on credit, which was the signment itself, but rather for removhighest bid, and refused to accept the ing the assignee. next lowest bid of $2,500 cash. Complaint dismissed.

The complaint did not ask for the Opinion by Noxon, J. removal of the assignee, but that the assignment should be set aside absolutely, as fraudulent and void.

APPEAL. PRACTICE. A. L. Johnson, for plffs.

N. Y. COURT OF APPEALS. Fuller & Vann, for defts.

In re petition of Pengnet. Held, That although the authority

Decided June 12, 1877. to sell on credit renders an assign

The Court of Appeals cannot re-examine a ment void, the principle has no ap

case and correct a remittitur upon affidavits plication to this case; the authority or extrinsic evidence, making a case differto sell and dispose of the property ent from that brought up by the appeal. “to the best possible advantage,” Rehearings upon motions and summary applishould be construed as giving the

cations are only ordered after a reversal of

an order. assignee the same power which is im

The Court of Appeals can neither direct action pnted to him by the law; that every of the Supreme Court in advance, nor regood assignment, which does not con- view its action upon an application for retain express words of this character,

lief, after the exercise of its discretion. confovs upon the assignee, by neces

Motion to correct a remittitur. sary implication of law, the right, and T. F. Neville, for motion. imposes upon him the duty of selling J. A. Beall, opposed. and disposing of the property“ to the Held, That the Court of Appeals best possible advantage;” that if two cannot re examine a case and correct constructions of this phrase are possi- a remittitur upon affidavits or other ble, that construction should be given evidence outside the record, making a to it which will render it legal and case different froin that brought up operative, rather than that which will by the appeal. render it illegal and void ; that with "It can reverse

, affirm or modify a in the principles of law settled by judgment or order, brought before it numerous decisions the assignment by appeal, but if the record shows no was valid on its face.

error, it cannot grant a new trial or a Also held, That although much re-hearing. Re-hearings upon moevidence was given tending to show tions and summary applications are want of good judgment and discre- only ordered upon a reversal of an tion in the assignee, still it did not order. An application for relief may establish the fact that the assignment be addressed to the Supreme Court, was made with the intent to defrand and the granting of it rests in the creditors; that the only intent which discretion of that Court, and the Court affects the validity of an assignment of Appeals can neither direct action

of that tribunal in advance, nor review edge, until the failure of the maker, its action upon such application after a prior indorser, who was solvent the exercise of its discretion.

when the notes matured and for more Motion denied.

than a year afterwards, having also Per curiam opinion. All concur. become insolvent.

A. P. Whitehead, for applts.

Jno. F. Seymour, for respt.
SURETYSIIIP.

Held, That by the agreement there
N. Y. COURT OF APPEALS.

was a clear intention to extend the Pomeroy et al., applts., v. Tanner, time for the collection of the notes, respt.

and the acceptance of the drafts and Decided September 25, 1877. the sale of the same to third parties An agreement by the holder of a promissory suspended the right of plaintiffs to note with the maker to accept drafts or

sue on the notes, and released defenbills to the amount of said note, and to extend the payment during the time said dant. 33 N. Y., 31; 38 Id., 96; 3 drafts were running, carried out without the Den., 512; 5 Hill, 463; 39 Barb., knowledge of the surety, will release such 614; 5 Id., 398, 520; 37 N. Y., 601; surety.

21 Wend., 502; 2 Den., 217. This action was brought against de- Judgment of General Term, affirmfendant as indorser of two promissory ing judgment disinissing complaint, notes of $2,500 each, which were affirmed. made and delivered as security for a Opinion by Müler, J. All concur. loan from plaintiffs to the makers. The referee found, that at and prior

ASSESSMENTS. INTEREST. to the date of the notes, the makers

N. Y. COURT OF APPEALS. were engaged in manufacturing

In re petition of St. Joseph's Asywoollen goods which were consigned

lum. to plaintiffs to be sold, with liberty to the makers to draw on plaintiffs for

Decided April 17, 1877. a certain proportion of their value,

There is nothing in thc Act of 1840 restricting

the comparison of value to the year in which which drafts were accepted and sold,

the assessment is made and the avails credited to the account Interest can only be charged from the time the of the drawers. That after the notes assessment is fixed according to law. in snit became due, it was agreed that This was an application to vacate if the makers would furnish and de- four assessments, numbered respectliver to plaintiffs drafts or bills drawn ively 1, 2, 3 and 4, on the ground that by them on plaintiffs to cover the loan it did not appear that the provision of $5,000, so that plaintiffs could be of Chapter 326 Laws of 1910, prohibkept in funds by the acceptance and iting an assessment exceeding one sale of snch drafts to the amount of half the value of the land as assessed the loan, the plaintiffs would extend by the ward assessors, was observed, the payment of the loan during the and the petitioner's counsel insisted times said drafts were running to that if the assessment had been within maturity. This arrangement was car- the prohibition of the Act of 1810, the ried out without defendant's knowl- I valuation of the ward commissioners,

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