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Action to recover damages for usual manner and with unaccusthe wrongful diversion and dis- tomed force and quantity upon charge of water by defendant upon plaintiff's land. plaintiff's land. A verdict was Jno. C. McCartin, for applt. ordered for defendant. The evi- O'Brien, Emerson & Ward, for dence tended to show the following respt. facts:
Held, That the case was erroneDefendant is owner of a farm ously taken from the jury and denorth of and higher than plaintiff's cided as a question of law. If farm. There was a low and there were streams running into swampy part of defendant's land, this pond on defendant's land he sometimes a pond, into which two had no right to change their course streams ran and where surface and pour their waters upon plainwater also collected. This swamp tiff's premises. naturally discharged its surplus The character of the streams waters to the west and not upon was a matter of proof on the trial. plaintiff's land. It was separated It was fairly before the court and from plaintiff's land by high ground jury and the court erred when it which is impenetrable to water. refused to submit to the jury Through this high ground defend whether plaintiff was not entitled ant dug a deep and wide ditch to recover on the facts proved, and to a point on his own land, some instead thereof directed a verdict 24 rods south of the deepest part for defendant. of the pond or marsh. Through this But assuming that the water in ditch defendant discharged the question was all surface water, dewhole of the waters of said pond | fendant would have no right by and marsh upon his own land, ditches and artificial channels to where the same was so gravelly as take it from its natural course and immediately to take up such waters accustomed channels and throw it and transmit them under ground upon plaintiff's premises to her indown upon plaintiff's land some 30 jury. There is no conflict of aurods below, where it again came to thorities upon this point. Wash. the surface and caused plaintiff on Ease., 2d ed., 432, 427—31, 439 ; damage. The jury found that an 26 Penn St. 407, 413; 47 Id., 155 ; increased quantity of water was 4 Lans., 47; 79 N. Y., 470. The thrown upon plaintiff's premises by case relied upon by the learned reason of the ditch made by defend justice at circuit, 86 N. Y., 140, anant and that plaintiff's premises nounces the same rule. At p. 147 had been damaged thereby in the the learned judge says the owner sum of $375, but it was not al- of land is the absolute owner of lowed to pass upon the main ques- surface water thereon, and he may tion, whether defendant had un- “get rid of it in any way he can, lawfully diverted waters from their provided only that he does not cast ordinary and natural course or had it by drains or ditches upon the discharged such waters in an un- land of his neighbor,” and again,
"The owner of wet and spongy
The facts sufficiently appear land cannot, it is true, by drains from the opinion. or other artificial means, collect Held, That the primary duty of the surface water into channels keeping bridges in repair is imposed and discharge it upon the land of upon the town. It is the duty of his neighbor to his injury. This the Town Commissioners of highis alike the rule of the civil and ways to keep the bridges safe and common law.” 16 Moaks Eng. Rep., in good repair. 1 R.S. 460. De299, note. Defendant may insist fendant is a village corporation that he dug this ditch and discharg- carved out of the territory of New ed this water upon his own prem- Castle and incorporated under ises, 20 rods or more from plaintiff's Chap. 291, Laws of 1870. Plainland, where it sank into the soil and tiff's horse was killed by reason of by percolation through the soil a defect in a bridge which was reached plaintiff's premises. Con- within the limits of the village, and ceding that to be true it does not re- the question is whether the village lieve defendant. The injury is the or town is liable for the injury. direct cousequence of the water * * * It is necessary to examine from defendant's ditch. Though the village charter act and deterdischarged at first upon his own mine whether or not the duty of land it ran of necessity immediate- keeping up safe the bridges is taken ly upon plaintiff's land, and it is im- from the town and imposed upon material whether on or above or the village, under circumstances below the surface.
like those in respect to defendant. Judgment and order denying The act permits the incorporation new trial reversed and new trial “of any part of any town” with granted, costs to abide event. certain population. Title 1, § 1.
Opinion by Boardman, J.; Har- The trustees have power “to make din, P.J., and Follett, J., concur. and repair all bridges which may
be necessary within the bounds of
the village” Title 3, § 1, sub. 25. VILLAGES. HIGHWAYS.
The village thus incorporated is a
separate highway district exempt N. Y. SUPREME COURT. GENERAL
from the superintendence of any TERM. SECOND DEPT.
one except the Board of Trustees, Elkanah Washburn, respt., v. who shall be commissioners of The Village of Mt. Kisco, applt. highways in and for such village Decided Feb., 1885.
and shall have all the powers of
commissioners of highways of Defendant is a village corporation carved out of the territory of New Castle, and
towns in this State subject to this incorporated under . Chap. 291, Laws of act.” By title 8, § 27, it is shown 1870. Plaintiff's horse was killed by rea- what the duty in respect to bridges defect in a bridge which was
really is intended to be and what within the limits of the village. Held, That the town and not the village is
the power over roads and bridges liable.
in villages is subject to. $ 27:
“Nothing in this act giving the that the bridge should never beboard of trustees of a village power come unfit for travel by the public. to make and repair bridges within Judgment reversed, and judgthe village bounds, or making them ment rendered that the village was commissioners of highways, or not liable to plaintiff. making the territory of the village Opinion by Banard, P.J.; Pratt, a separate highway district sub- J., concurs; Dykman, J., not sitject to the board of trustees alone, ting. shall be construed as divesting the commissioners for any town in
DIVORCE. ABATEMENT. which a bridge may be located of
N. Y. SUPREME COURT. GENERAL power or control over the same or
TERM. SECOND DEPT. as relieving such town from the expense of constructing or repair- Ella J. Hopkins v. Alexander ing any bridges within its bounds, Hopkins. though such bridge may be with
Decided Feb., 1885. in the territorial limits
limits of a village incorporated under this
It is improper after the death of a plaintiff
in an action for divorce for the attorney act. In the board of
to take further steps in the action in the trustees of any village so in- name of the deceased plaintiff. The accorporated shall think proper to
tion dies at the death of such party. construct or repair any bridge with- This was an action for a divorce. in the corporate limits, then the An order was made that defendant expense of such work shall be a pay to plaintiff or her attorney charge on the taxable property of fifty dollars for counsel fee therein. the village and be paid out of the Defendant was committed to jail corporate funds." The village is by reason of failure to make paynot bound to repair bridges. The ment according to the terms of the stipulation shows that it did not order, and remained there some do so before the accident. The five months. Then an order was town duty continued in full force. made, Dec. 10, 1883, discharging The breach of duty must be enforced him from further imprisonment. against the town and not the vil- On the 19th of May, 1884, another lage. The village could repair at order was made, vacating the order its own expense, but it was not of Dec. 10, 1883, and again combound to do so, and thus no duty mitting defendant to jail. When absolute and imperative is cast up- the order of May 19, 1884, was on the village. It had at best a made plaintiff was dead. An order right to spend its own money in was made Oct. 15, 1884, dischargrepairing a bridge, which it never | ing defendant from his imprisonexercised. The town commission- ment, and this is an appeal thereers were still bound to keep safe from. the bridge if the village did not Albert Day, for applt. elect to do so, and the town com- Max Hallheimer, for respt. missioners were bound to see to it Held, That the action died with
the plaintiff. She was a sole plain- from C., plaintiff's intestate, to S., tiff, and the cause of action did defendant's testator. It appeared not survive. It was improper after that on June 5, 1874, C. received her death for the attorney to take from a savings bank two checks of further steps in the action in the $1,000 each, payable to cash or name of the deceased plaintiff. At bearer. The next day S. had said the time of plaintiff's death the checks and used them with other attorney had no right to enforce money in his business. C. was not the payment of the fifty dollars by at that time engaged in business, any order of the court, and he but resided with S., in whose house could not get such a right after her he died March 1, 1875. The checks death. The case is not like Lach- in question were paid by the banks enmyer v. Lachenmyer, 17 W.
upon which they were drawn in Dig., 310; 65 How., 422. The at- the usual course of business. The torney in that case had a bill of
answer of S., sworn to in his lifecosts and expenses incurred in de- time, denied wholly the alleged fending a motion to vacate an order loan or advance, and set up counof arrest. He had the remittitur terclaims for which judgment was of the Court of Appeals, and the asked. One of these was for medparty, his client, died soon after- ical services stated in a bill of parwards. Then he had leave to issue ticulars furnished and running execution for the costs in his own back twenty years.
Another was name against defendant's property. for board and lodging from DeIn this case, as has been observed, cember, 1877, to March, 1875. A he had no right whatever.
third was for the payment of a Order affirmed.
note to one A., one-half of which Opinion by Barnard, P.J.; Pratt was the debt of C., and a fourth and Dykman, JJ., concur.
was a receipt by C. of moneys be
longing to S. upon a land contract. LOAN.
William Tiffany, for applt.
D. P. Morehouse, for respt. Poucher, admr., applt., v. Scott, Held, That plaintiff was not enexr., respt.
titled to recover ; that no loan was Decided March 3, 1885.
proved, there being a clear failure
of proof. In an action to recover an alleged loan it was shown that plaintiff's intestate re
A fraud or felony cannot be preceived certain checks, and that on the sumed ; if the transfer was direct following day they were in the possession it must be deemed a voluntary deof and used by defendant's testator, with
livery in payment or discharge of whom intestate resided. Held, That no loan was proved ; that if there was a di
an existing liability rather than a rect transfer it must be deemed a volun
loan. 78 N. Y., 290. tary delivery in payment of an existing Judgment of General Term, afliability rather than a loan.
firming judgment dismissing comThis action was brought to re-plaint, affirmed. cover an alleged loan of $2,000 Opinion by Finch, J. All concur.
granted were fatally defective in N. Y. SUPREME COURT. GENERAL
two particulars, one of which was TERM. FIRST DEPT.
that they failed to show that the
plaintiff was entitled to recover The Marine National Bank,respt., the sum stated therein over and v. Ferdinand Ward et al.
above all counterclaims known to Decided March 4, 1885.
plaintiff. The principal affidavit A person who has acquired a lien upon or
upon which the attachment was interest in property after it has been at- granted was made by one S., who tached may found a motion to vacate the was stated to be the vice-president attachment upon the insufficiency of the
and a director of the plaintiff, but papers upon which the warrant was granted.
who was not shown to have had An affidavit made for the purpose of ob- any special knowledge of or con
taining an attachment in an action in nection with the business affairs which a national bank is the plaintiff is
of the bank beyond what was imnot sufficient for that purpose when it is made by a person who is stated to be the plied by said statement. The statevice-president and a director of plaintiff, ment upon which the objection but who is not shown to have had any arose was in these words : “ And special knowledge of or connection with deponent further says that the the business affairs of the bank beyond what is implied by said statement, and plaintiff is, as deponent is informed the allegation in regard to counterclaims and verily believes, entitled to reis that “the plaintiff is, as deponent is cover of the defendant the sum of informed and verily believes, entitled to
$700,000 over and above all counrecover of the defendants the sum of $700,000 over and above all counterclaims
terclaims known to plaintiff or to known to the plaintiff or to deponent.” deponent. In order to warrant the granting of an at- T. H. Hubbard, for applt. tachment upon the ground that the de
F. N. Bangs, for respt. fendant has made a fraudulent conveyance of a portion of his property, such
Held, That there was no statefraudulent conveyance must be shown by ment, based upon the knowledge something more than allegations merely of any affiant, that the plaintiff upon information and belief.
was entitled to recover the sum Appeal from an order of Special named over and above all counterTerm, denying motion to vacate claims known to it. The affiant attachment.
merely stated that he was informed The motion to vacate the attach- and verily believed that such was ment in this case was made by one the case, and did not give the H., as the general assignee of the source of his information nor the defendant Ward for the benefit of grounds of his belief, nor state any creditors, claiming that as such as- facts from which the judge grantsignee he had an interest in the ing the attachment could see that property attached, which interest his belief was well founded. was acquired subsequent to the at- That while the affidavit in this tachment. The motion was made respect might undoubtedly be made upon the ground that the affidavits by an agent of the plaintiff or an upon which the warrant was officer of a corporation to whom