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performance. Plaintiff has not

cannot be modified by parol executory

agreement, yet the complete execution been placed in a situation which is

of the parol agreement may operate as a a fraud upon him unless the con- satisfaction of the undertakings in the tract is executed. 2 Story Eq. Jur., lease. $ 761 ; 1 Johns. Ch., 149; 14 Johns.,

Appeal from judgment on refer15; 66 N. Y., 227; 17 W. Dig., 104; ee's report. On April 1, 1879, 45 N. Y., 589; 52 id., 494. The plaintiff by his agent B. made a revocation by W. of his will was a

lease under seal of certain premises mere failure to transfer his prop- to defendant, for three years, rent erty by will to plaintiff. The lat

payable in monthly instalments. ter lost nothing; he simply failed

In this action plaintiff recovered to acquire by will the estate of his

judgment for the rent for April brother. He was deprived only of

and May, 1879. When the lease an expectancy. The element of

was made one D. was in possession fraud which equity will recognize of the premises under a prior lease in support of the right to execution

which terminated March 31, 1879. of a contract within the statute

D. remained in possession until does not appear in this case. 103

May 1, 1879. The evidence fairly Mass., 408.

authorized the referee to find that Johnson v. Hubbell, 2 Stockt.

D.'s possession was continued at Ch., 332 ; S. C., 5 Am. Law Reg., the request of plaintiff's agent B. 177 ; Parsell v. Stryker, 41 N. Y.,

with the understanding that such 480 ; Podmore v. Gunning, 7 Sim., possession through April should be 644; Stephens v. Reynolds, 6 N. | taken as satisfaction of the rent as Y., 454; Williams v. Fitch, 18 N.

against defendant for that month, Y., 546 ; Todd v. Weber, 95 N. Y., and that at the end of the month

Re O'Hara’s will, id., 403 ; l of April that agreement became Sherman v. Scott, 27 Hun, 331,

executed. There was conflict of distinguished.

testimony as to whether B. promJudgment affirmed, with costs.

ised to make repairs. When deOpinion by Bradley, J.; Haight, fendant took possession on May 1, Angle and Childs, JJ., concur.

repairs were made which defend

ant paid for. B's agency was eviLEASE.

denced by a power of attorney un

der seal giving him merely power N. Y. SUPREME COURT. GENERAL

to lease the premises and collect TERM. FIFTH DEPT.

the rents. Robert Simpson, respt., v. George

Patrick McIntyre, for applt. B. Swikehard, applt.

W. H. Whiting, for respt. Decided Jan., 1885.

Held, By the terms of the lease The lessor in a lease under seal in which defendant was liable to pay rent there is no undertaking on his part to

from its date and plaintiff was not make repairs is not chargeable with the expense of repairing.

chargeable with repairs. . 45 N. Y., While the covenants in a lease under seal 119; 3 Duer, 464 ; 52 N. Y., 572.

181 ;

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The term of the lease could not the judgment the amount of April
before breach be substantially rent with interest. Then judgment
modified nor surrendered by parol so modified affirmed without costs
executory agreement of the parties of appeal.
to it. 21 Wend., 629; 3 Rob., 7, Opinion by Bradley, J.; Barker,
16 ; 7 id., 544 ; S. C., 36 How., 275; Haight and Rumsey, JJ., con-
30 N. Y., 306 ; 72 id., 141. But

cur. the complete execution of that agreement might operate to satisfy

PRACTICE. pro tanto the undertaking to pay. 14 Johns., 330; 21 Wend., 632; 6

N. Y. SUPREME COURT. GENERAL
Duer, 208 ; 12 N. Y., 141: 15

TERM. FIRST DEPT.
Wend., 400; 2 Barb., 180; 25 Hun, Henry S. Manning, respt., v.
116. The parol lease for April to Henry Case, impld., applt.
D. was valid between the parties,

Decided Jan. 9, 1885.
and when executed might be treat-
ed practically, if not strictly in a

An exception to the refusal of the Court to

submit to the jury any other question legal sense, as a surrender of so

than the amount of plaintiff's recovery much of the term demised to de

is not equivalent to a request to submit fendant. 10 Adol. & Ell., N. S., to them a particular question for their 944; 2 Barb., 180; 15 Wend., 400;

consideration. In order to take advan

tage of an error of the Court in failing to 30 N. Y., 453. The arrangement

submit a particular question to the jury was within B.'s agency. 21 Wend., there should be a distinct request that 279 ; 3 Hun, 591.

such question be submitted to them as Defendant is not entitled to be

one of fact for them to consider. re-imbursed for repairs. It was Appeal from judgment entered not within B.'s agency to bind plantiff for repairs, and it is not Action for goods sold and delivimportant that defendant was not ered to a copartnership composed actually advised of the extent of of defendants. The defense of apB.'s power. 25 N. Y., 595 ; 3+ id., pellant was that he was not a co30. Agreement by the landlord to partner of the other defendant. repair will not be implied. Nor The trial judge, however, held that would a bare parol promise to that the partnership was established by effect, made after the execution of the evidence and submitted to the the lease, bind the landlord. 2 jury only the question of the value Rob., 214 ; 37 How., 5 ; 45 N. Y., of the goods sold.

of the goods sold. Appellant ex119; 43 How., 333. Moreover the cepted to the refusal of the Court question whether B. promised to to submit any other question to make repairs was answered in the the jury. negative by the referee, whose E. S. Clinch, for applt. finding is conclusive.

G. H. Fletcher, for respt. Judgment reversed with new Held, That the evidence upon trial, costs to abide event, unless the question of partnership was plaintiff stipulate to deduct from neither clear nor very satisfactory,

upon verdict.

but still there was evidence upon Defendant was convicted for viothat subject quite sufficient to go lation of a city ordinance relating to the jury.

to the sale of jewelers' goods at That the exception to the refusal auction. The ordinance provided of the Court to submit to the jury that all sales of watches, jewelry, any other question than that of etc., at public auction by an aucthe amount of plaintiff's recovery tioneer shall be made in the daywas not equivalent to a request to time and between sunrise and sunsubmit the question whether or set, and it shall, after the passage not the partnership was establish- of this ordinance, be unlawful for ed to the jury. That if defendant any person to expose for sale at desired to go to the jury upon that public auction any goods of the question as one of fact for them to class specified after sunset of any consider, there should have been a day, under a penalty of $50. It distinct request to submit that par- was decided that the only authorticular question. That upon the ity for the Common Council to evidence, however, the jury would pass this ordinance was derived probably have found against him from this provision of the charter: and that finding would have been 'To regulate the ringing of bells sustained.

and the crying of goods and other Judgment affirmed.

commodities for sale at auction, or Opinion by Davis, P. J.; Daniels, otherwise, and to prevent disturbJ., concurs; Brady, J., dissents. ing noises in the streets." The

question was whether this pro

vision warranted the passing of MUNICIPAL CORPORATIONS.

such an ordinance. N. Y. SUPREME COURT. GENERAL

C. M. Allen, for applt.
TERM. FIFTH DEPT.

J. N. Bleckley, for respt.
The City of Rochester, respt., v. Held, That the charter does not
Ernest M. Close, applt.

confer any authority on the ComDecided Jan., 1885.

mon Council to regulate or propower to regulate the ringing of bells and hibit a sale of goods at auction the crying of goods or other commodities within the store or building of the for sale at auction, or otherwise, relates seller, but that it relates solely to solely to the manner of advertising a sale by public outcry, and authorizes the Com

the manner of advertising a sale mon Council to regulate that custom or

by public outcry, and authorizes manner of advertising, but confers no au- the council to regulate that custom thority to regulate or prohibit a sale of

or manner of advertising, but not goods at auction within the store or build

to interfere in any manner with ing of the seller. Therefore, an ordinance prohibiting the sale of jewelers' goods at

the sale, whether at auction or in auction after sunset, under a penalty, is any other manner adopted by the unauthorized and void.

seller. That the charter was inCertiorari to review the trial and tended to authorize the council to conviction of defendant by the pass such ordinances relating to Police Justice of Rochester.

the matters aforesaid as would in

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sure the peace and quiet of the ing the year, but failed to pay the
public and prevent such noises and rent.
disturbances in the streets of the The lease contained a covenant
city as would cause annoyance and that all of the products of the farm
discomfort to the inhabitants. and the live stock raised thereon

An ordinance passed by a city should be and remain the property must be made to conform strictly of the lessor until the rent should to the provisions of the charter. be fully paid, and under this cov43 Barb., 48; 6 N. Y., 92.

enant the only defense is interJudgment reversed, with costs, posed. and plaintiff ordered to restore to Defendant called and proved by defendant the sum of $50 collected plaintiff that he had taken none from him on execution.

of the products and did not know Opinion by Childs, J.; Haight, what had become of them. DeBradley and Angle, JJ., concur. fendant then offered to show that

the products of the farm during

the year exceeded $300 in value. LEASE. SURETY.

This was excluded by the court on N. Y. SUPREME COURT. GENERAL the ground that it would not conTERM. FOURTH DEPT.

stitute a defense unless defendant George Clarke, respt., v. Richard proposed to go further, and the Quinn, applt.

court intimated what should be

shown. Defendant did not state Decided Jan., 1885.

that he proposed to go further and Proof that the value of the products of a offered no further evidence and

farm exceeded the rent, and that the
lessor did not take them will not consti- thereupon the court directed a ver-
tute a defense to an action against the

dict for the amount of rent due.
surety on the lease under a covenant that James Parks, for applt.
the products should be the property of J. I. Sayles, for respt.
the lessor until the rent is paid. It must

Held, No error. Defendant did appear that the lessor took them or was negligent in not doing so.

not offer to show that plaintiff An action may be maintained against the took any part of the crops, or that

surety on a lease without joining the he was in any respect negligent in principal.

not taking them; thus failing to Appeal from judgment in favor bring the case within the rule that of plaintiff, entered on verdict di- a surety is discharged if the credirected by the court.

tor surrenders or negligently loses Action brought against defen- collateral security of sufficient dant as surety on a lease to recov- value to pay the debt. A creditor er the rent remaining unpaid. may sue the surety before resortPlaintiff leased a farm to one D. | ing to any collateral security he for one year from April 1, 1879, for may have. 6 Ves., Jr, 714 ; Burge $300 payable at the commencement on Suretyship (1 Am ed.) 324. of the term, defendant signing as Wright v. Austin, 56 Barb., 13, surety. D. occupied the farm dur- distinguished.

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It is claimed that the action can- Soon after taking the drinks the deceased

came into the bar-room of the saloon not be maintained against the

which they kept and the prisoner at once surety without joining the princi

commenced to quarrel with her, struck pal.

her in the face and pushed her against a Held, Untenable. As between table. Her mother interfered and also the creditor and the surety the

the son of deceased, a boy. The prisoner

knocked them both down. He then surety is severally liable. “With

knocked the deceased down and kicked respect to the rights of two or more her until remonstrated with by a by. persons joining in a contract as stander. Thereupon he left deceased, creditors the general rule of con

walked around a corner of the saloon, a

distance of eighteen feet, got behind the struction is to the effect that a

bar, took out a revolver, cocked it and contract will be construed to be fired a shot at the deceased from which joint or several according to the she soon died. He showed no remorse, interests of the parties if the words

and did not seem much excited and not

at all irrational. The jury found him are capable of that construction,

guilty of murder in the first degree. Held, or even if they are not inconsistent

That the questions whether the verdict with it; if the words are ambi- was supported by the evidence and of guous or will admit if it, the con

premeditation were rightly decided by

the jury. tract will be joint if the interest be joint, and it will be several if the Appellant was convicted of murinterest be several.” Leak's Cont.,

der in the first degree for killing 457. The interest of the surety in

his wife on July 3, 1884, at Troy. this contract was not a joint, but

Wm. J. Ludden, for applt. several one, and the suit is proper

L. W. Rhodes, for respts. ly brought.

PECKHAM, J. Under $ 527, Code Judgment affirmed, with costs. Crim. Pro., as amended by Ch. 360,

Opinion by Follett J. ; Hardin, Laws of 1882, this court must reP. J. and Boardman, J., concur. view the decision of the Oyer and

Terminer and must grant a new

trial if the verdict be against law MURDER.

or if justice requires a new trial, N. Y. SUPREME COURT. GENERAL whether any exception be taken TERM. THIRD DEPT.

or not. This section grants new James Horace Jones, applt. v.

and extensive powers and they The People, respts.

should be exercised with great

circumspection. A case must be Decided Feb., 1885.

very clear to authorize a court to The prisoner was much younger than his grant a new trial because justice wife, for whose murder he was convicted. They lived on bad terms, and had been requires it. The whole theory of married eighteen months. The prisoner

our law is based upon the great had beaten her and had fired a pistol at weight to be attached to the verher on two occasions. He was a man of dict of a jury. It is claimed here bad temper and occasionally drank to ex

that the verdict is against the evicess. On the morning of the murder he had taken two or three drinks of whiskey dence, and also that there could with a customer, but appeared rational.

not be a conviction for an offense

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