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Ahern v. Goodspeed, IV, 6, Affirmed, Jan. Dolan v. The Prest., &c., of the D. & H. 15, 1878.

C. Co., IV, 35, Affirmed ......... .V, 413 Alexander v. Dutcher, II, 415, Affirmed. V, 114 Driggs v. Bliss, III, 435, Affirmed, Feb. Baggerly v. The Farmers' Joint Stock

22, 1878. Ins. Co., III, 113, Affirmed, Jan. 29, Evans v. Cleveland, V, 292, Reversed, 1878.

Feb. 12, 1878. Barry v. Brune, III, 339, Affirmed. . .V, 437 Ferguson v. Crawford, II, 336, Revers Bastable v. City of Syracuse, III, 467, Ap.

.V, 116 peal dismissed..

...V, 520 Frost v. The Yonkers Savings B'k, III, Beardsley v. Duntley, II, 490, Affirmed. V, 59 262, Modified......

V, 162 Besel v. The N. Y. C. & H. R. RR. Co., Garvey v. McDevitt, V, 73, Affirmed, Feb. IV, 276, Reversed..

.V, 325 19, 1878. Bigelow v. Benedict, IV, 274, Affirmed.V, 82 Harrison v. Glover, IV, 88, Reversed, Feb. Boyle v. City of Brooklyn, III, 321, Re- 12, 1878. versed..

.V, 219 Higgenbotham v. Stoddard, III, 554, AfBrown v. Sigourney, III, 16, Appeal dis- firmed, Jan. 15, 1878. missed, Jan. 15, 1878.

Hiler v. The Burlington, &c., RR., IV, Bruce v. Griscom, III, 529, Affirmed, Sep. 425, Affirmed..

.V, 45 25, 1877.

Hill v. The Newichawanick Co., III, 387, Burrows v. Whittaker, III, 502, Affirmed, Affirmed, Oct. 9, 1877. Nov. 27, 1877.

Horn v. Pullman, IV, 388, Affirmed, Jan. Cameron et al. v. Seaman et al., III, 214,

29, 1878. Reversed..

......V, 157 Horton v. Town of Thompson, II, 434, Campbell v. Smith, III, 210, Affirmed. V, 181 Reversed, Jan. 15, 1878. Chase v. James, IV, 433, Appeal dis- Hưbbell v. Blakeslee, III, 484, Reversed V, 219 missed, Nov. 20, 1877.

Hunt, IV, 287, Affirmed, Jan. 29, Comstock v. Drohar, III, 302, Affirmed.V, 248 1878. Cordell v. The N. Y. C. & H. R. RR. Co., In re Peugnet, III, 518, Reargument deIV, 33, Reversed ... .V, 60 nied ....

.V, 199, 222 Coughlin v. The N. Y. C. & H. R. RR. In re Security Life Ins. Co., IV, 503, ApCo., II, 564, Reversed... .V, 562 peal dismissed.......

.V, 311 Cushman v. The U. S. Life Ins. Co., I, In re will of Hathaway, IV, 17, Affirm111, Affirmed....

86 ed...

.....V, 387 Delamater v. The Fonda, J., &c., RR., Kapelovitz v. Kersburg, IV, 303, ReversIII, 295, Affirmed, Oct. 2, 1877.

ed....

..V, 547 Dolan v. The Mayor, UJI, 396, Affirm- King v. Livermore, III, 576, Affirmed,

.V, 160

Nov. 27, 1877.

Hunt v.

ed..

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Latham v. Richards, V, 412, Appeal dis- The City of Rochester v. Montgomery, IV, misscd, Feb. 5, 1878.

146, Affirmed....

.V, 573 Leonard v. Reynolds, II, 327, Affirm- The Marine Bk, of Buffalo v. Fiske, III, ed.. 561 504, Affirmed.

.V, 433 McKay v. Barnes, III, 52, Affirmed, Feb. The Merchants' Bk. of Canada v. Gris12, 1878.

wold, IV, 104, Affirmed, Feb. 12, 1878. McNulty v. Hurd, V, 80, Judgment and The People v. Casey, V, 210, Affirmed, decree modified, Feb. 19, 1878.

Feb. 5, 1878. McParlin v. Boynton, III, 521, Affirmed, The People v. Smith, III, 569, ReversNov. 27, 1877.

ed....

.V, 200 Macauley v. Potter, II, 113, Affirmed..V, 348 The People v. Stephens, II, 515, Affirmed, Matthews v. Coe, III, 291, Affirmed... V, 46 Jan. 15, 1878. Matthews v. Sheehan, III, 355, Affirm- The People ex rel. Clapp v. The Mayor, ed....

88 I, 180, Reversed, Feb. 5, 1878. Merwin v. The Star Fire Ins. Co., III, The People ex rel. McKeone v. Green, V, 208, Affirmed, Feb. 5, 1878.

44, Appeal dismissed, Feb. 12, 1878. Miller v. The Long Island RR. Co., III, The People ex rel. Munday v. Fire Comrs., 323, Reversed......

.V, 528 V, 486, Affirmed, Feb. 5, 1878. Morgan v. Smith, II, 346, Affirmed. ...V, 220 The People ex rel. Richardson v. County Mowry v. Sanborn, V, 209, Reversed, Court of St. Lawrence Co., III, 261, Feb. 19, 1878.

Appeal dismissed, Nov. 13, 1877. Nash v. Mitchell, III, 300, Reversed...V, 388 The Standard Sugar Refinery v. Dayton, Nicholson v. Waful, II, 250, Reversed..V, 55 III, 104, Affirmed.....

..V, 136 Onthank 0. The Lake Shore RR., II, The Town of Pierpont v. Loveless, I, 57, 557, Affirmed

...V, 318

Reversed, Jan. 29, 1878. Parhan v. Moran, I, 61, Affirmed, Oct. 10, The Troy & Lansingburgh RR. Co. v. 1877.

Kane, IV, 307, Affirmed, Feb. 19, 1878. Parrott v. Colby, I, 462, Affirmed, Nov. Thompson v. Taylor, V, 98, Affirmed.,V, 518 13, 1877.

Tilton v. Ormsbee, IV, 193. Affirmed, Sept. Peck v. Collins, III, 338, Affirmed....V, 246

18, 1877. Peck v. The N. Y. C. & C. RE., III, 503, Underwood v. The Farmers' Joint Stock

.V, 201

Ins. Co., III, 243, Affirmed, Nov. 27, Peyser v. The Mayor, &c., of N. Y., III, 1877. 345, Reversed.

. V, 127 Van Valkenburgh v. The Am. Pop. Life Pierce v. Keator, IV, 272, Affirmed.... V, 111 Ins. Co., IV, 171, Affirmed. .....

V, 89 Quinn v. The People, V, 236, Affirmed, Verdin v. Slocum, IV., 47, Reversed..V, 435 Jan, 15, 1878.

Vilas v. The N. Y. Central Ins. Co., IV, Randel v. Von Ellert, V, 253, Reversed V, 476 24, Affirmed, Feb. 22, 1878. Reid v. Sprague, III, 558, Affirmed, Feb.

Ward v. The A. & P. Tel. Co., IV, 50, 12, 1878.

.V, 231 Rockwell et al v. McGovern et al., I, 393,

Waring v. Sanborn, V, 291, Appeal disAffirmed......

V, 153 missed, Dec. 4, 1877. Shakespeare v. Markham, IV, 489, Affirm

Weeks v. The N. Y., N. H., &c., RR., ed, Feb. 5, 1878.

III, 587, Affirmed, Jan. 15, 1878. Shaw v. The Republic Life Ins. Co., II,

White v. Miller, II, 368, Reversed, Nov. 212, Modified and affirmed..... .V, 2

13, 1877.

Wilcox Silver Plate Co. v. Green, IV, 93, Steele v. Lord, II, 225, Affirmed......V, 166

Affirmed, Jan. 15, 1878. Taber y. The D. & H. C. Co., I, 90, Af- Wilkinson v. 1st Natl. Fire Ins. Co., IV,

504

244, Affirmed, Feb. 19, 1878. The Chittenango Cotton Co. v. Stewart, Wood v. The Erie R. Co., III, 586, AfIII, 318, Affirmed, Oct. 2, 1877.

firmed, Jan, 22, 1878.

Afirmed.....

Reversed.....

firmed....

THE

NEW YORK WEEKLY

DI GEST.

VOLUME V.

LEASE. ESTOPPEL. not embody the contract between the

N. Y. COURT OF APPEALS. parties. Defendant objected to plainThomas, respt., v. Nelson, applt. tiff's showing the parol agreement to Decided March 20, 1877.

lease on the ground that such a lease In an action to recover rent under an alleged was not alleged. The Court overruled

lease, an amendment to the complaint by the objection, saying that if necessary averring a verbal letting for seven years is an amendment to the complaint would

allowable. Where the keys of the premises have been sent

be allowed. After a verdict for plainto the lessor without his request or assent, tiff, defendant moved for a new trial a mere retention of them by him will not upon the minutes. Plaintiff was per

amount to a surrender and acceptance. mitted to enter judgment; a stay was When the lessee remains upon the premises until an arrangement is made by which he ordered, and the motion adjourned for is to repair a defective flue at the lessor's about a month, when it was heard and expense, a failure to repair estops him from denied, and the Conrt then ordered complaining of the flue.

that the complaint be amended by This was an action to recover rent averring a verbal letting for seven under an alleged lease from plaintiff years. to defendant. The allegations of the Henry D. Birdsall, for applt. complaint implied . a valid written N. P. O'Brien, for respt. lease for a term of seven years. Plain- lield, No error; that under the tiff put in evidence a memorandum, complaint as originally drawn the versigned by himself, as follows: “I am bal contract could have been proved; to give Mr. Nelson a lease of building that even if this .were not so, the allow 271 Broadway, for seven years, first ance of the amendment was proper. three years at $1,400 per year, and While a parol contract for leasing four years at $1,500 per year.” This for a longer term than one year is writing was not intended to and did Ivoid, if the tenant enters under it and

Vol 6–1.

occupies he may be compelled to pay The life of plaintiff's husband was for the use and occupation of the insured in the H. L. Ins. Co. On premises. 2 Cow., 660 ; 8 Id., 226 ; Nov. 26, 1872, defendant received 23 Wend., 616; 31 N. Y., 514; 33 from him his note for $54.75, and Id., 245; 22 Conn., 425.

interest, payable in 40 days, and gave When defendant left the premises him a paper by which it acknowlhe sent the keys to plaintiff in a letter, edged the receipt of the H. policy, and he claimed, because they were not describing it, and agreed to “issne its .returned, that plaintiff accepted the policy of the same amount, and desurrender of the premises. The Court liver the same within a reasonable held that the mere retention of the time, and in the meantimę keep the keys, they having been sent without insurance good.” Before the next plaintiff's request or assent, did not of annual premium became due, defenitself amount to a surrender and ac- dant had refused to take payment of ceptance.

the note, and repudiated the whole Hel, No error.

arrangement, and was only willing to There was a defective flue which negotiate on the basis of a new armade the occupancy of the premises rangement stated by its agent. No extreinely uncomfortable and incon- payment was made after this on the venient. Defendant reinained until policy. The insured died September it was arranged that he was to repair 22, 1873, and plaintiff brought this the fine at plaintiff's expense.

action to recover the ainount of the Held, That defendant was estopped policy. froin complaining of the flue if he F. A. Lyman, for applt. failed to repair it under the agree

E. W. Gardner, for respt. ment.

Held, That plaintiff was entitled Judgment of General Term, affirm- to recover; that the note given by ing judginent for plaintiff on verdict, the insured was the note of a third attirmed.

person, and furnished an adeqnate Opinion by Earl, J. All concur. consideration for the agreement with

defendant; that the latter, having LIFE INSURANCE. repudiated the agreement and all N. Y. COURT OF APPEALS. obligation to plaintiff, a iender of Shaw, respt., r. The Republic Life the premium by her was not necesIns. Co., applt.

sary. Decided April 10, 1877.

Where one party to a contract deA note given by the insured in payment of clares to the other party to it that he

premium, although not paid at maturity, is will not perforın on the future day an adequate consideration to issue a policy fixed therefor, and does not before

of insurance. Where one party to a contract declares to the the time arrives for an act to be

other that he will not perform on the future done by the other party withdraw his day fixed therefor, and does not withdraw declaration, the other party is exsuch declaration before such time, the cused from performance on

his other party is excused from performance or

part, or offer to perform, and may offer to perform on his part. Affirming S. C., 2 W. Dig.,

212.

maintain his action for a breach of

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the contract when the day has passed. denying a motion for a new trial on 6 B. & C., 325; 5 Cow., 506; 23 the minutes. Wend., 66; 6 E. L. & Eq., 230; 20 Id., Action on a bill of exchange, drawn 157; 7 L. R., Ex. Ch., 111; 42 N. Y., by George R. Mills on N. F. Mills, 246.

care Morgan, Stoddard & Co., No. It is no more incumbent upon a 114 South Main Street, St. Louis, party to a contract to offer perform Mo., payable to the order of the deance of the conditions precedent, fendant Chapman, and indorsed by because they are many and of peri- him and the defendant Higby, and odical recurrence than upon the other accepted by the drawee. The departy who has but one act to per- fendants Higby and Chapman anform. 34 Barb., 378.

swered, and denied that the draft was Judgment of General Term, affirm- duly presented for payment or proing judgment for plaintiff on verdict, tested, and alleged that the draft was affirmed after deducting the amount usurious. At the trial, the plaintiff of the premium due September 15, read in evidence, under objection and 1873.

exception, the certificate of a notary, Opinion by Folger, J. All con. stating among other things, that he car, Andrews, J., in result.

presented the draft "at the place of business of N. F. Mills, St. Louis, to

the person in charge thereof," &c. NEGOTIABLE PAPER. PRO- It appeared by evidence, introduced TEST.

by plaintiff, that N. F. Mills had two N. Y. SUPREME COURT. GENERAL places of business at St. Louis, one TERM. FOURTH DEPT.

of which was at No. 114 South George M. Brooks, respt., v. Harris Main Street, and the other was elseS. Higby et al., impl’d, &c., applts.

where. The defendant moved for a Decided June, 1877.

nonsuit on the ground that there was

no evidence that the draft was preA draft addressed to the drawee at a particular sented at the place where it was pay

place in a city must be presented and a demand of payment made at that place in able. The motion was denied, and order to charge the endorsers.

the defendant excepted. The deWhere the acceptor of such draft has two fendants called George R. Mills, the

places of business in such city, the certifi- drawer of the draft, as a witness, who cate of a notary that the draft was pre- testified that the draft was discounted sented and payment demanded “at the place of business” of the acceptor, is no under an agreement with the plainevidence of presentment at the place where tiff to pay him one-half of one per it was payable.

cent. for exchange, and two and a half A new certificate of the notary showing that

the draft was presented at the proper per cent. (or at the rate of fifteen per place cannot be first produced on the argu- cent. per annum) for interest and ment on appeal to conclude the endorsers ; discount. This evidence was controthey are entitled to meet it on the trial.

verted on the part of the plaintiff. Appeal from a judgment entered At the close of the testimony, the deon a verdict for the plaintiff, ordered fendants' counsel asked that the case by the Conrt, and also for an order | be submitted to the jury, which was

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