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clared that he made a levy on the How, 88; Sheldon v. Loper, 14 J. right, title, and interest of Coxe, or R., 352. When an officer sells the anything else. On the trial at Spe- goods of a partnership on an execucial Term the complaint was dis- tion against one of the partners, he missed.

must proceed in the manner pointed Coudert Bros., for applt.

out by the statute cited, and sell as D. T. Walden, for respt.

much of the interest of the judgmentHeld, No error; that these acts did debtor as may be sufficient to satisfy not amount to an actual levy. In the execution. Here there was not a order to make a valid levy, it is not sale or delivery of any specific goods, necessary that there should be a re- but only of the interest of the judgmoval of the goods. Yet, there must ment-debtor in the partnership, which, be actual control or dominion of the if effectual, would pass not only the property. The officer did nothing title to leviable property, but to choses which would subject him to an action in action, and other property not leviof trespass, if the execution did not able. Such a sale was clearly illegal. afford him protection. The legal test Judgment affirmed, with costs. of a valid levy, therefore, was want- Opinion by Gilbert, J. ing.

The pretended levy was no levy at CONTRACT. RECISSION. all, for the officer was careful to

N. Y. SUPREME COURT. GENERAL avoid liability for his acts, in case it TERM. SECOND DEPT. shonld turn ont that the judgment

Patrick Cook, applt., v. Alfred debtor had no interest in the property. Reynolds, respt. Westervelt v. Pinckney, 14 Wend.,

Decided July 6, 1877. 123; Roth v. Wells, 29 N. Y., 471; Defendant sold a cow to one Carey, the purCamp v. Chainberlin, 5 Den., 198.

chase price to be paid in manure at a stipuThe sale, also, was irregular and lated price, and delivered it to plaintiff as void. Neither the right, title, and

agent; subsequently, defendant took said

cow from plaintiff's possession; Held, That interest of Coxe in the goods, nor the

the contract of sale was thereby rescinded, goods themselves were offered for

and plaintiff, as assignor of the claim, is sale, but the sale was of Coxe's inter- entitled to recover for the manure delivered. est in the firm. Such an interest is The plaintiff was the agent of John not the subject of a sale on execution. Carey. As such agent, he sold the If we conld infer that the officer defendant a quantity of manure and meant to sell Coxe's interest in the bought from him a cow.

The cow goods only, still large quantities of was valued at $65, and the price of the goods were not present, or within the manure, at $1.50 a load, was to be the view of those attending the sale, applied in payment for the cow, and nor were they offered for sale in lots if this price proved insufficient, the or parcels as required by statute balance was to be paid in cash. (2 R. S., 367, $ 22). To nphold such The cow was taken from defenda sale would not only violate the law, ant's residence during his absence by but would open a door for the gross the plaintiff. On his return, the deest frauds. Morgau v. Halliday, 48 fendant went to plaintiff, and refused

same.

to leave the cow unless the difference

SURROGATES. between the price of the cow and the N. Y. SUPREME COURT. GENERAL manure then delivered were then paid TERM. SECOND DEPT. in cash. There had been eighteen McNulty, adm'x., applt., v. Hurd, loads of manure taken, worth, at the respt. price agreed upon, $27. No more Decided July 6, 1877. manure was taken, and the defendant

Surrogates have no power to adjudicate with has since kept the cow. Carey as

reference to a disputed claim. This princisigned to plaintiff the claim for the

ple is not to be extended. manure delivered. This action was Surrogates have power to pass upon the ques. comienced in a Justice's Court, to

tion as to whether a judgment has been

paid, and to decree payment thereof. recover the value of the manure.

The Justice rendered a judgment Respondent is the owner of a judgin favor of the plaintiff for the amount ment obtained against the intestate of of the claiin, with costs. The defend the appellant. The Surrogate of ant appealed to the County Court, Kings made an order requiring the where the judgment was reversed. appellant to show cause why he The plaintiff appeals to this Court. should not be required to pay the

Held, That the County Court has fallen into error. There was but The appellant denied that respondlittle conflict before the Justice, and ent was the owner of the judgment; the facts were sufficient to justify claimed that it had been paid, and him in finding as he did in favor of denied the jurisdiction of the surrothe plaintiff. When the defendant gate to determine the issues raised. took the cow from the plaintiff, who The objection to the jurisdiction was in possession under the terms was overruled, and a decree for the of the contract, he (the defendant) payment of the amount due on the violated the contract, and his act judginent made. Testimony had esoperated as a recission of it on his tablished the judgment, the respondpart, and imposed the legal duty on ent's ownership thereof, and the him of paying for what manure he amount due. From this decree the already had. Defendant claims he appeal is taken to this Court. took the cow back as security. For Held, Surrogates' Courts are of what was he entitled to security ? limited jurisdiction. Their powers There was manure sufficient to satisfy are special, and are given and defined his claim, and he was bound to take by statute (2 R. S., 220, $ 1; 2 R. S., his pay in it. Other facts appear, 95, $ 71). These statutes have been but are controverted, and we leave construed to give no power to a surthem where the law does, and as the rogate to adjudicate upon a disputed trial court has found them.

claim. Such adjudications would inJudgment of County Court revers- volve tedious litigation, and intricate ed, and judgment of Justice affirmed. questions of law and of fact, and Opinion by Dykman, J. All con- would give to surrogates and their

courts labor and responsibility beyond the object of their institution. Though this rule may be considered settled,

cur.

REFERENCE. the reasons for it are not entirely N. Y. SUPREME COURT. GENERAL satisfactory, and are not so strong

TERM. FIRST DEPT. that the rule is to be extended.

Middleton Bell, respt., v. The There is reason neither in the analo

Mayor, etc., applt. gies of the law, nor in public policy

Decided July 6, 1877. why the surrogate should not have

An action where the jury will be obliged to entertained jurisdiction of this case.

examine a number of separate items constiThe original claim against the appel- tuting the damages for breach of contract, lant's intestate bad been liquidated, is not a referable action involving the ex. and freed by the judginent; and, there

amination of a long account. fore, to compel the claimant to estab- Appeal from an order directing a lish his judgment before any other

reference. tribunal would be idle ceremony, es

Action brought to recover the sum pecially as the validity of the judg- of $306,200, the amount of damages ment was not questioned. We do alleged to have been sustained by not think there was a disputed claim reason of the breach of defendants within the meaning of the statute. contract to deliver to the plaintiff's The judgment was the claim, and assignor the contents of the sinks and about it there was no dispute.

privies in this city from November True, the judgment is not conclusive 1st, 1872, to May 1st, 1875. upon the appellant. She might prove

The contract provided that the deits payment, and destroy its existence fendant should deliver at the Lodi as a claim. But should the surrogate Man'f'g Co. the contents of the sinks refuse to proceed with the respond- and privies of the city of N. Y., on

of ent's petition because of an allegation being paid therefor the sum of payment?

$1,000 per annum, payable quarterly, Whether the judgment was, or was and in consideration of the premises, , not paid in whole, or in part, and one Gallagher, plaintiff's assignor, whether it be owned by the claimant agrees with the defendant to receive or no, are questions relating to the the contents of the sinks and privies claim, which assume its existence,

of the city of N. Y., for the term of and this very class of questions, the ten years, and to pay the sum of statute in terms requires the surrogate

$4,000 per annum, quarterly. to settle.

The answers deny any breach on In Kidd v. Chapman, 2 Barb. the part of the defendant, allege deChan., 414, the chancellor held that fault and breach of contract on the the surrogate had power to decree part of plaintiff's assignor, and of payment of a judgment recovered plaintiff himself. against the testator in his lifetime,

W. P. Prentice, for applt. although the executor does not ask

Thomas IIooker, for respt. for a final settlement of his accounts. IIeu, This is an action sounding Decree affirmed with costs.

in damages. The plaintiff's case deOpinion by Dykman, J. All con- pends chiefly upon the number of cur.

loads or quantity of soil which could Vol, 5-No. 4*.

have been taken from the sinks and ty, when there is no intention on the one

side to sell and deliver, or on the other to privies during the period covered by

buy and take, but merely that the differthe contract.

ence shall be paid according to the fluctuaBut this proof does not involve the tion in market values, is a wager and void. examination of a long account. Affirming S. C., 4 W. Dig., 274.

The number of sinks and privies This action was brought to recover form one or two items, the average damages for the breach of a contract, size one, and therefore the property whereby defendant, in consideration another, the value per load of the of $250 paid him by B., plaintiff's quantity, aggregated and reduced to intestate, agreed to receive from him loads, another, and doubtless one or at any time within six months from two other matters of figures, which a date of the contract $2,500 in gold jury could readily handle and easily coin of the United States, and pay understand, under the direction of therefor in good current funds, at the the Court and a tabular statement rate of $195 in currency for every prepared for them. It is the com- $100 in gold, and the contract exmercial or financial account to which pressly declared that B. did not conthe Code relates, the account in trade tract to deliver the coin, but paid or in finance, and not a statement of $250 for the privilege of delivering it items or elements of damage for a or not, at his option. Defendant contract broken, which, if fulfilled claimed the contract was a wager, and prosecuted, might require an ex- and therefore void. The contract amination of items in detail.

was the only evidence of the intent It may be said, indeed, that there of the parties and of what took place is in this case no account whatever when it was made ; no prior dealings within the meaning of the Court.

of a similar nature were shown beThe action was not one in which a tween the parties. The breach of the compulsory reference should have contract was proved. The case was been ordered.

tried by a judge without a jury, who Order reversed, with costs to abide found the contract was not a bet or the event.

wager, and directed judgment for Opinion by Brady, J.; Davis, P. plaintiff. J., and Daniels, J., concurring.

A. P. Laning, for applt.
L. W. Thayer, for respts.

Held, no error; That the contract

on its face did not disclose an illegal OPTIONAL CONTRACTS.

transaction; that the burden was upN. Y. COURT OF APPEALS.

on defendant to show that it was ilBigelow, adınrx. &c., et al., respts., legal, and he failed to do so; that v. Benedict, applt.

mercantile contracts of this sort are Decided June 19, 1877.

consistent with a bona fide intention An executory contract for the sale of stocks or on the part of both parties to perform.

goods at a fixed price is valid, although the There is no inherent vice in such a vendor neither owns them nor has them in possession when the contract is made.

contract. 3 J. Ch., 81 ; 2 Sand, 240; But an optional contract for the sale of proper- | 43 N. Y., 240; 5 Lans., 180.

cur.

An executory contract for the sale Nov. 24, 1875, there remained due and of stocks or goods at a fixed price is unpaid $10,664.08. valid, althongh the vendor neither Some time previous to this day, Mr. owns them nor has them in possession Brown, the attorney of the Bank, had when the contract is made. 5 M. & an interview with Mr. Cassidy and W., 442.

several gentlemen in his interest, when When an optional contract for the it was agreed that, to lessen expense, sale of property is made and there is the property should be sold by the no intention on the one side to sell or referee, and bid in by the Bank for deliver the property, or on the other Cassidy’s benefit, so that he might pay to buy or take it, but merely that the off the amount remaining due and get difference should be paid according to back the property. the fluctuation in market values, the Under this agreement, on Nov. 24, contract would be a wager within the 1875, two parcels were put up, sold statnte. 75 E. C. L., 525; 34 E. L. and bid in by the Bank, one for $11,& Eq., 219; 1 Bos., 207; 13 Am. L. 000 and one for $3,000. In DecemR., (N. S.) 310.

ber following there was a sale of the Judgment of General Term, affirm- remainder of the land. Mr. Brown ing judgment for plaintiffs, affirmed. attended and bid for the Bank. A Opinion by Andrews, J. All con- Mr. Watson also attended and made

eleven bids, when Mr. Brown told

him he was injuring Mr. Cassidy, FORECLOSURE. SALE. RE

as the bidding was for his benefit. SALE.

Mr. Watson thereupon ceased bidding. N. Y. SUPREME COURT. GENERAL In November, 1876, Cassidy offered TERM. SECOND DEPT.

to the Bank the sun remaining due Abingdon Square Savings Bank, on the judgments and claimed the applt., v. Patrick Cassidy et al., respt. right to have the property conveyeol Decided July 6, 1877.

to him thereupon. The right was

denied. A motion was inade for a Inadequacy of price of itself may furnish

grounds sufficient to justify a suspicion of resale and granted, and from the fraud or mistake and to set aside a judicial order this appeal is taken.

Held, It is safe to lay down as a In May, 1871, the defendant Cassi- general rule that judicial sales may

be dy made to the plaintiff and appellant set aside in all cases of fraud, miscontwo mortgages, one for $10,000 and duct, surprise or well grounded misone for $5,000. In December, 1871, apprehension. he made a third for $8,000.

It has been said and written that On the 4th day of June, 1873, judg- mere inadequacy of price will not of ments of foreclosure and sale were itself be a sufficient reason for the inentered in actions to foreclose these terference of the courts. mortgages. The amount then due on This has, however, come to be reall these was $23,596.61. Defendant garded as a mere form of expression. Cassidy immediately commenced mak- Certainly the price may be so grossly ing payments on these judgments. On inadequate as of itself to furnish good

sale.

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