TENANTS IN COMMON Tenants in common of a farm- -a tenant who
sows and cuts oats on a piece of land is entitled to them, as against his co-tenants.]
1. This action was brought to recover damages from the defendants for carry-
ing away and converting to their own use a quantity of hay and unthreshed
oats from a farm, of which one Le Barren died seized in 1882, leaving him
surviving eleven children, one of whom was the plaintiff and another was the
wife of the defendant House. In 1885 the plaintiff cultivated a piece of land
on the farm and sowed it with oats, and when they matured cut them. While
they were lying on the ground the defendant House, acting by authority
derived from his wife and the other defendants, raked up the oats and drew
them away.
Held, that, as it was to be assumed that all of the heirs of Le Barren were
free and at liberty to go upon and occupy the premises jointly without being
liable to each other for the use and occupation of the farm, the plaintiff was
lawfully in possession and had the right to cultivate the ground and sow and
harvest the oats, and that as the oats were the product of his labor, rightfully
performed, he was entitled to maintain this action for their conversion.
2. But not to hay cured from grass growing thereon mowed by him.] The
plaintiff mowed some of the grass growing in the meadow on the farm, and
was proceeding to cure and gather the hay so cut, when the defendant House
went into the field and drew some of it away.
Upon the trial of this action the court charged the jury that when the
plaintiff entered upon the portion of the meadow on which he cut the grass
he took possession of that part of the premises, and by force of it acquired
the title to the grass which he cut, and that he had the right to protect such
possession and the title thus derived to the grass mowed there by him.
Held, that the court erred in so charging.
That as growing grass is a part of the realty until severed, and unlike other
farm crops is, in some sense, a self-supporting production, the hay in question
was not the product of the labor of the plaintiff, and that he acquired no addi-
tional right of property by the mere act of severing it from the land. Id.
Legacy to the brothers and sisters of the testator — when they take distrib-
utively as tenants in common, not as a class.
Husband and wife may hold personal property in common.
See KAUFMAN v. SCHOEFFEL
TENANT BY THE CURTESY - An action for partition cannot be
brought by a tenant by the curtesy Code of Civil Procedure, §§ 1538, 1557 and
1577- all the parties, including infants, are, however, bound conclusively by
the entry of a final judgment confirming a sale made in such an action-the
only remedy of the infant defendant is an action against their guardian ad
litem and his sureties the failure to give a separate bond to each infant is
only an irregularity.
TIME Rule for computing the time within which acts must be done — section
788 of the Code of Civil Procedure is not limited to actions in courts of record.
The rule for computing the time within which an act, in an action or special
proceeding, is required by law to be done, established by section 788 of the
Code of Civil Procedure, applies to acts to be done in actions or proceedings
in the Municipal Court of Rochester.
The reference made in section 788 to the preceding section was not made
for the purpose of defining and limiting the instances in which the rule of
computation should be applied, but for the purpose of making the rule appli-
cable to actions and proceedings originating in courts not of record.
Oral stipulation extending the time in which a justice of the peace may
render and docket his judgment — void for indefiniteness, if no time is fixed —
the authority of an attorney to make it must be shown the practice of so
enlarging the time condemned.
The failure of a board of police commissioners of New York city to
make an appointment of inspectors of election within the time prescribed by the
act (chap. 490 of 1887), does not deprice it of the power to thereafter make it, in
the absence of any prohibition to do so.
See PEOPLE EX REL. MCMACKIN v. BOARD OF POLICE...
To real property.
See REAL PROPERTY.
VENDOR AND PURCHASER.
TONAWANDA RAILROAD COMPANY:
TOWN-Action against a town, under chapter 700 of 1881-commissioner of
highways-duty of, to keep the highways in repair-1 R. S., 501-503, §§ 1-6,
as amended by section 7 of chapter 503 of 1880 - the duty rests upon the com-
missioner to see that his directions to an overseer are complied with as to
whether negligence can be imputed to an officer de facto, because of a failure to
See FARMAN v. TOWN OF ELLINGTON.
Hall-legacy to be used in the erection of a town-hall-construction of
the terms of the will as to the uses to which the building may be put.
See BUTTON v. ELY....
The expense of supporting indigent lunatics in State asylums is a town
and not a county charge-1874, chap. 446, tit. 1, art. 1, § 14.
See PEOPLE EX REL. RUSSELL v. SUPERVISORS..
Duty of, to repair bridges — burden of proof, question for the jury.
See GETTY v. TOWN OF HAMLIN
Town bonds issued under chapter 146 of 1880, to replace
outstanding bonds · the validity of the original bonds does not invalidate the
bonds issued to replace them presumption that public officers not concurring in
the proceedings met and consulted with the others.
See HILL v. PEEKSKILL SAVINGS BANK
TRIAL-Juror — disquaified in civil actions if in the least degree biased or
prejudiced- action for assault and ravishment.] 1. Upon the trial of this
action, brought to recover damages for an alleged assault and battery upon
the person of the plaintiff, and for forcibly defiling and carnally knowing
her, John Crouse, one of the jurymen, whose name was drawn from the box,
having been challenged by the defendant for favor, testified that he knew the
parties; that he had partially formed an opinion; that what he had heard had
created an impression upon his mind; that he then had that impression, and
that it would require evidence to remove it. On his cross-examination he tes-
tified that he thought he could sit and try the case fairly and impartially, and
render an impartial verdict from the evidence without being biased by his
previously formed opinion, but it would take evidence to remove the opinion
formed.
Held, that the decision of the trial court sustaining the challenge should be
affirmed.
That the rule established by chapter 475 of 1872. and section 376 of the
Code of Criminal Procedure, is limited to criminal trials, and has not changed
the common-law rule which is still to be applied in civil cases.
2 Specific acts of the plaintiff tending to show lack of virtue and chastity
admissible on the question of damages.] Upon the trial the defendant was
allowed, against the objection and exception of the plaintiff, to give evidence
tending to show specific acts in the life of the plaintiff indicating a want
of virtue and chastity.
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Held, that the evidence was admissible as bearing upon the question of
damages. Id.
3. Admissibility of the opinion of a physician as to whether pregnancy is
likely to follow ravishment.] The plaintiff having testified that previous to the
defendant's assault she had never had sexual intercourse with any man, and it
appearing that she had, after the assault, been delivered of a child, the
defendant called a physician and was allowed, against the plaintiff's objection
and exception, to put a hypothetical question, which was, in substance, an
inquiry whether, in his opinion, pregnancy would probably result from the
first intercourse in a case where the woman had been ravished and the act
accomplished against her will.
Held, that the evidence was properly admitted, as the opinion of learned
and experienced medical men on the subject of the inquiry would aid the
jury in disposing of the issue. Id.
That, in any event, the defendant was entitled to have the evidence received
as the plaintiff had herself given proof of the same character by a medical wit-
ness, who stated that, in his opinion, conception might follow the first inter-
course with a man under such circumstances. Id.
4. When the general good character of the plaintiff cannot be proved by her.]
Upon the trial the plaintiff's attorney offered testimony as to the general char-
acter of the plaintiff for the purpose of showing that she was a person of
good moral character, and as tending to prove her character for chastity
and veracity, and also for the purpose of rebutting any presumption which
might have been raised against her by the facts proved, and as bearing on her
character for truth and veracity.
Held, that as the plaintiff's general reputation for truth and veracity had not
been attacked by the defendant she was not entitled to sustain her case and
character by proof of her general good character. Id.
5. The failure of the plaintiff to disclose the assault to friends, after a
reasonable opportunity to do so, of itself tends to impeach her veracity.] The
plaintiff delayed disclosing to her female friends the conduct of the defendant
until she became satisfied that she was with child, although she met her most
intimate female friends the very day of the occurrence, and under such circum-
stances that she had a free opportunity to relate to them the outrage which
she alleges that the defendant had perpetrated. Id.
Held, that it was not error to charge that the silence, after a reasonable oppor-
tunity to expose the defendant's conduct to her female relatives and friends, was
a circumstance from which the jury might infer that her story was notreliable. Id.
Duty of a master to exercise due care in furnishing safe and suitable
machinery for the use of his workmen and to keep it in repair- the facts in this
case held to justify the court in submitting to the jury the question of the con-
tributory negligence of an infant, injured while in the employ of the defendant.
See CULLEN v. NAT. SHEET METAL ROOFING CO..
Action to recover upon a specific agreement-defense that another agree-
ment, specified in the answer, was the one made -
— a recovery cannot be had upon
an agreement not alleged in the pleadings of either party, and in conflict with the
allegations contained in each.
Action against a railroad by an employee, for negligence — when the ques-
tion as to whether the defendant had taken all proper steps to avoid the accident
should be submitted to the jury.
See SUTHERLAND . T. AND B. R. R. Co....
Policy insuring a dwelling-hounse against loss by fire-condition as to
its forfeiture if unoccupied — when the question of occupancy should be submitted
to the jury.
See VANDERHOEF . AGRICULTURAL Ins. Co..
A juror in an action to recover damages for an injury, incompetent by
reason of bias towards an expert witness.
See LEWKE . DRY DOCK, ETC., R. R. Co....
VENDOR AND PURCHASER Marketable title — when a grantor will be
presumed to convey all interests owned by him, either individually or as assignee
for creditors.] 1. In this action, brought to specifically enforce the perform-
ance of a contract for the purchase of ive lots upon the south-easterly side of
Thirtieth street, New York city, the defendant alleged, as one of his objections
to the title, that the vendor had not acquired the title to a strip of land about
fifty feet in depth, running through the lots from east to west, formerly known
as Stewart street. It appeared on the trial that on March 2, 1822, William
James Stewart, the owner of an undivided half of the property, executed a
deed assigning the property to John James Stewart, the owner of the other
undivided half, for the benefit of his creditors, under the non-imprisonment
act of 1819, and on September 5, 1825, John James Stewart executed and
delivered a deed to Alpheus Dimick, in which he conveyed " a certain lot, parcel
or tract of land in said ward and city, known or distinguished as Stewart
street, adjoining the aforesaid lot," and, also, an undivided fourth in two
other pieces of property described in such deed.
Held, that, from that circumstance and the general language cited above, it
was to be inferred that the object and intent of the grantor in the deed was
not only to convey his own undivided interest, but also that which he had
obtained under the assignment to him from William James Stewart, and that
the fact that no claim had ever been made by any person in the interest of
William James Stewart to his undivided half tended to warrant this construc-
tion of the deed. N. Y. STEAM Co. v. STERN...
When an assignment for the benefit of creditors will be presumed to have
been fully executed and to have no effect.] That an assignment made on May 11,
1812, by Matthias Ward, who then owned the property, to Anthony Dey,
which was also objected to as a defect in the title, might be assumed to have
been long since executed and completed in all its trusts, and to have ceased
to be in any manner operative or effective so far as this property was
concerned. Id.
3. 1875, chap. 545.] That this seemed to be the effect of chapter 545 of
1875, as it was considered in Kipp v. Hirsh (103 N. Y., 565), thereby over-
ruling McCahill v. Hamilton (20 Hun, 388). Id.
4. When the purchaser will be compelled to accept a title founded on
adverse possession.] All the premises included in the contract were owned by
Charles Smyth at the time of his death. His son Constantine, who inherited
the property, did not include in the description of the property conveyed by
him to one Swift all of the said premises, but omitted therefrom a strip on the
easterly part of the lot, four feet and nine inches in front and nineteen feet
ten inches in depth. The referee, before whom this action was tried, found,
however, that there had been such an adverse possession of the property, com-
mencing previous to the year 1848, and continuing to the time of the
commencement of this action on June 28, 1886, as vested the plaintiff with
the title thereto, and that the defendant should be compelled to accept such
title.
Held, that as this finding established an adverse possession of the property,
extending over a period of thirty-eight years, the statutes in force, at the time
when the possession commenced (secs. 3 and 16 of 2 R. S. [2d ed.], pp. 221 and
223), barred any entry on the part of Constantine Smyth, or his heirs-at-law,
whether he was living when the adverse possession commenced to run in 1848,
and died thereafter leaving infant heirs, or whether he died prior to that
time leaving such infant heirs, and vested the plaintiff, who succeeded to that
possession, with the title to the part of the property omitted from the
description.
That the title was such as to authorize the referee to compel the defendant
to accept it.
5. Title by escheat.] That, as the case appears by the evidence and the
findings of the referee, there was no probability that the people of the State
acquired any right, by escheat, in this piece of property on the death of Smyth
without heirs. Id.
VENDOR AND PURCHASER- Continued.
Conveyance of a lot with a right to use an underground drain·
right of the grantor to use the drain for adjoining bts owned by him is lost, unless ›
reserved by the deed - a purchaser is put on inquiry by an actual occupation
under an unrecorded deed. chat evidence is required to establish a right by pre-
scription to use an underground drain crossing a lot owned by another person
the collection of money for repairs of the drain does not constitute a grant or create
an estoppel.
See MUNSION v. REID.....
Restrictions as to the use of premises conveyed.
the owners of other Uts
held under like restrictions may enforce it -the original grantor cannot releas.
a lot owned from such restrictions-counsel fees and disbursements incurred in
examining a title found to be defective, may be recovered from the vendor.
See RAYNOR . LYON...
Cancellation of an invalid tax sale by the comptroller — 1855, chap. 427,
§ 85-grantees of the land conveyed to the purchaser are entitled to receive the
purchase-money as his assigns.
See PEOPLE EX REL. ÖSTRANDER v. CHAPIN.
Foreclosure of a second mortgage - -a purchase by the mortgagee does not
destroy or release the lien of a prior mortgage held by him - nor does his subsequent
conveyance of the right acquired by him on such purchase.
See CLEMENTS . GRISWOLD..
Definition of a first-class and a marketable title, given― evidence of the
common belief of the people of a place, as to the death of a former resident, is not
admissible.
County Court· it has jurisdiction of an action for the specific perform-
ance of a contract for the purchase of real estate.
See ADAMS v. Ash....
Representation as to the quantity of real estate to be conveyed at a sale at
when no warranty as to the quantity will be inferred.
See DENNERLEIN. DENNERLEIN..
Deed-what evidence is sufficient to establish delivery and acceptance
its effect cannot be destroyed by the unsupported testimony of the grantor that she
meant to execute a will.
See MESSELBACK V. NORMAN.
VENUE- Action in the nature of a quo warranto- Code of Civil Procedure,
1948-the attorney-general may designate the county in which the action is to
be tried.] The complaint in this action, brought by the People of the State
of New York against the defendant Thomas C. Platt, alleged that the defend-
ant had been appointed by the governor to fill a vacancy in the office of quaran-
tine commissioner; that his appointment had been confirmed by the senate,
and that the defendant thereupon entered upon, and has since held and occu-
pied, the office, and still continues to do so, and from that date to this has
acted as such officer, and still continues to do so. It then recites statutes tending
to show that a person, to be eligible to the oflice of quarantine commissioner,
ought, at the time of his appointment or during his continuance in office, or
both, to be a resident of the metropolitan district, and then alleged that the
defendant, all the time in question, did not reside in that district, but did reside
in the county of Tioga.
It also alleged that the defendant, as such officer, ought to have subscribed
and taken the oath of office before some one of certain officers named, and
ought to nave filed such oath in the office of the clerk of the county of New
York, but instead thereof that he subscribed and took the oath before a notary
public and filed it in the office of the secretary of state in Albany county.
Judgment was demanded that the defendant be adjudged guilty of usurp-
ing the office, that he has forfeited the office, that he be ousted therefrom and
pay a fine of $2,000.
Held, that the action was in the nature of a quo warranto, and that the
attorney-general was authorized, by section 1948 of the Code of Civil Procedure,
to maintain the action in the name of the people, and to designate the county
in which the action should be triable. PEOPLE . PLATT..
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