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assignee of De Leon, to enforce wrote December 10:
wrote December 10: “Accepted. De Leon's rights under an order for Reed & Co.” Defendants wrote a the delivery of goods which has note to Messrs. Raisin: “We will been accepted by defendants. The deliver to Mr. P. M. De Leon, on action was for damages for non- your order dated December 7, acdelivery, in the amount of the value cepted by us to-day, one cargo, say of the goods. The jury gave a ver- 500 tons to vessel, to begin leading dict for this amount.
about the 19th of December, and These are the material facts: the remainder of the 1,000 tons to a Defendants signed an agreement, vessel to load the latter part of De“We have to-day sold to Messrs. cember or early in January, 1882; Raisin 1,000 tons of super-phos- vessels to be furnished by De Leon." phates at $24 a ton on a cash basis, Messrs. Raisin took the accepted goods to be delivered free on board order and the note, delivered them buyers' vessels and in bulk. Set-to De Leon, who thereupon, on lements are to be made on delivery December 10, paid the price agreed to buyers of bills of lading by their to be paid by him, under his connotes.” This was also signed by tract with the Messrs. Raisin. On the vendees. The Messrs. Raisin
The Messrs. Raisin the same day the Messrs. Raisin had contracted to sell and deliver delivered to defendants their notes, to De Leon 2,000 tons of phosphates the agreed price of the goods, unof their own manufacture, and der their contract, and defendants they proposed to De Leon that in accepted them in payment. On the place of the 1,000 tons of the December 16 the Messrs. Raisin & kind to be delivered under their Co. became insolvent. Defendants contract, he should accept the 1,000 gave notice to all parties that the tons which were to be delivered order and acceptance were void under defendants' contract. This on that ground, also contending offer was accepted. Messrs. Raisin that title to the phosphates did not told defendants that they had sold pass, as they were to be manufacto De Leon phosphates that they tured and did not exist at the time had not on hand to deliver, and of giving the sold note. they would have to take the goods Sullivan & Cromwell and W. J. under defendants' contract and de- Curtis, for appits. liver them to De Leon under his E. Louis Lane, for respt. contract. Defendants assented to Held, That the judgment must this. Afterwards the following be sustained. While De Leon was was presented to them for accept- holder of the accepted order the
condition upon which defendants “December 7, 1851. Messrs. were to deliver, namely, payment Reed & Co.- Gentlemen : Please in the manner provided by the condeliver to P. M. De Leon 1,000 tons tract, had been performed, so far of ammoniated super-phosphates as contract obligations were consold to us. R. W. L. Raisin & cerned. All that was left to the Co.” Upon this order defendants vendors was what may be called a contingent right to keep possession. Defendant's testator on May 1, The vendor may waive this right, 1869, conveyed a lot in the village or the facts may show that the of Ithaca with covenant of warspecial contract excludes it. In ranty to one T., who Aug. 29, this case they have no right to as- 1876, conveyed with covenant of sert it against De Leon. The ac- warranty to plaintiff. In 1881 ceptance was something more than plaintiff enclosed the whole lot, a a promise to Raisin & Co., who strip of which, twelve feet in width, drew it for the benefit of Raisin & the village claimed had long been Co. It was made for the benefit appropriated for a public street. also of De Leon. It was intended The village then brought action to to become operative when delivered restrain him from enclosing or obto him. Its form, coupled with structing the street, of which acthe other facts, establishes between tion plaintiff gave defendants defendants and De Leon an imnie- notice and asked them to defend, diate relation.
but they did not. He then an The controlling consideration is swered denying the existence of the that when for sufficient considera- street. On the trial of that action tion the vendor promised to deliver it was found that prior to 1860 the possession to the sub-vendee, if De then owner of the lot dedicated a Leon may be deemed one, the ven- part of it to the public for the purdor abandoned the right to with pose of a street and that the village hold delivery that would rest upon authorities accepted it, constructed the vendee becoming insolvent. and for twenty-five years prior to
Judgment and order affirmed, 1831 maintained a public street on with costs.
the land in dispute, and judgment Opinion by Sedgwick, Ch.J.; was entered restraining this plainTrua.c, J., concurs.
tiff from obstructing the street and for costs.
This action was brought on the WARRANTY.
covenant of warranty to recover N. Y. SUPREME COURT. GENERAL $250 damages for the eviction and TERM. FOURTH DEPT.
the expenses of defending the forJehial Hymes, applt., v. William
mer action. The jury rendered a W. Esty et al., ex’rs, respts.
verdict for $157.24, and subse
quently the Special Term, on moDecided April, 1885.
tion, granted the order appealed The opening of a public street or highway from. to its legal width, or using it as a street,
F. E. Tibbetts, for applt. is pot a sufficient eviction to enable the owner to maintain an action against his Almy & Bouton, for respts. grantor for breach of a covenant of war- Held, No error. The existence. ranty.
of a public street or highway, leAppeal from order granting mo- gally laid out and openly traveled, tion for a new trial on a case after upon land conveyed with a coveverdict for plaintiff.
nant. of warranty, does not, if the Vol. 21-No. 12a,
public have but an easement, Order affirmed, with costs to amount to a breach of warranty. abide event. 15 Johns., 183; 46 Pa., 229. If the Opinion by Follett, J.; Harilin, soil of a street or highway is ap- P.J., concurs ; Boardman, J., not propriated or used for other pur- voting. poses the owner may maintain trespass or ejectment against the CIVIL DAMAGE ACT. intruder. 1 Burr., 133; 2 Johns., N. Y. SUPREME COURT. . GENERAL 357; 15 id., 47. In this state,
TERM. FIFTH DEPT. opening a public street or highway to its legal width, or using it as a
Phineas 0. Stevens, applt., v. street, is not deemed a sufficient
Harrison C. Cheney et al., respts. eviction to enable the owner to Decided April, 1855. maintain an action against his A parent of an adult child is not entitled to grautor for the breach of a cove
recover damages for injury to his means
of support under the Civil Damage Law nant of warranty. Whether the
in absence of proof that he is a poor perexistence of a public street or higlı
son unable by work to maintain himself, way is a breach of a covenant and that the child was, before and at the against incumbrances is a question
time of the injury, under a legal obliga
tion to support him ; and that by reason upon which the decision of the va
or in consequence of the child's intoxicarious states do not agree. 3 Washb.
tion his accustomed means of maintenR. P., 4th ed., 460, 462.
ance have been cut off or diminished. The sole foundation of this action Appeal from judgment entered is the judgment in the case of the upon a nonsuit and from order devillage of Ithaca against this plain-nying motion for a new trial made tiff, the judgment roll in which upon a case and exceptions. case was introduced in evidence
Action to recover damages by plaintiff, by which it appears
which plaintiff claimed to have that the land from which plaintiff sustained to his means of supclaims to have been evicted was a
port by reason of the intoxication
of his son Carlton, who was a marlegal public street at the date of the
ried man of the age of thirty-one grant of defendant's testator to T., and also at the date of the grant
years. He became intoxicated
from the liquor sold to him by deof T. to plaintiff. Plaintiff cannot
fendant, and on his way home he use this judgment as a verity so far as it tends to establish his himself, and in consequence of
was unable to properly care for cause of action and then turn and such intoxication was run over by treat it as a falsity, subject to be the cars, making it necessary to contradicted and overthrown by amputate both of his legs. Carlton oral evidence, in so far as the find- | had always lived with plaintiff. ings upon which it rests are found Plaintiff testified that his son furunfavorable. The judgment roll nished some of the wood and prowhich plaintiff invokes to establish | visions for the use of the family; his cause of action destroys it. that he cut hay, and drove plaintiff 7+ N. Y.,
to and from his office prior to the The plaintiff must show that he injury; that since then he has not is a poor person unable to maintain been able to labor, and still coniin- himself; that his accustomed means ues to live with him. That he of support have been cut off or owned a house and lot worth about curtailed ; that he is dependent $350, a horse $70, a buggy $30, and helpless, and is not possessed and a lumber wagon $18. That of accumulated capital or property he is a justice of the peace, and adequate for his maintenance withthat his income does not exceed out the aid of his son. $2.50 per annum. It did not appear 526. whether he had any other prop- If the parent is a poor person erty, or whether his son owned within the meaning of the statute, anything. It was contended that it is the duty of the son to aid in as the son had attained his ma- his support, and if he did so volunjority plaintiff had no legal claim tarily or otherwise, and the parent to his services, nor was he under has been deprived of it by reason any legal obligation to aid in the of the intoxication, he is entitled support of plaintiff, consequently to recover even though the son be no recovery could be had for injury over twenty-one years of age. 56 to means of support.
Vt., 410; S. C. 30 Alb. Law J., 370. Burrell & Robinson, tur applt. We are of opinion that the eviEli Soule, for respts.
dence fails to bring the case within Held, That in the absence of the statute authorizing a recovery proof that plaintiff was a poor per- | for injury to means of support, son who is insane, blind, old, lame, and that the court properly granted impotent or decrepit, so as to be a nonsuit. unable by work to maintain him- Judgment and order affirmed. self, and that his son was of suffi- Opinion by Haight, J.; Smith, cient ability to relieve and maintain P.J., concurs; Barker, J., not him, Code of Crim. Pro., $ 914, voting; Bradley, J., not sitting. the latter was under no legal obligation to support him, and consequently he could not recover dam- SUPPLEMENTARY PROCEEDages for injury to his means of
INGS. support under the statute. Laws N. Y. SUPREME COURT. GENERAL 1973, chap. 646. And there being
TERM. FIRST DEPT. no proof that his son was a poor person and that he became legally Bernard Spaulding et al., applts.
Solomon Marx et al., respts., v. chargeable for his support and maintenance, and that the charge Decided March 27, 1885. brought upon him by his son's in
The following return to an execution was jury diminished his means of sup
made by the sheriff : port so as to render them inade- 'In pursuance of the demand of plaintiffs'
attorneys, I make the following return to quate therefor, he could not recover
the within execution: I have collected on that ground.
nothing under, and have not found any
personal property out of which the said A. Thain, for applts. execution, or any part of the same, can
S. Untermeyer, for respts. be made, but I have thereunder levied
Held, That the code does not upon the real estate mentioned in the annexed notice of sale, and have advertised justify proceedings supplementary the same for sale as in said notice pro- to execution where the execution vided. I have found no other property
has not been returned for the reaout of which to satisfy the same.” Held,
son that the sheriff has levied upon That no order for the examination of defendant in proceedings supplementary and is about to sell real estate of
to execution could be based on such return. defendant, nor ought the right to An order for the examination of a defendant
the supplementary order to be made in supplementary proceedings cannot be upheld upon a motion to vacate it for the
to depend upon the result of a conreason that it is based upon a return to the troversy upon motion to set it aside execution which did not warrant its upon conflicting affidavits on the granting, upon proof that a sufficient re. question whether the sheriff should turn should have been inade. The remedy
not have made the return required is to require the sheriff to make the proper return and, if he refuses, to move to com
by law as the basis of the supplepel him to do so.
mentary examination. Appeal from order denying mo
That if the sheriff has not made tion to vacate order for the exami- the proper return the remedy is to nation of defendants in proceedings require him to do so, and, if he resupplementary to execution. fuses, to move to compel him to
The motion was made upon the make it. ground that the return of the sher- Order reversed. iff to the execution was not such Opinion by Davis, P.J.; Brady as warranted the granting of the and Daniels, JJ., concur. order. The return was in the following form:
MURDER PRACTICE. “In pursuance of the demand of
GENERAL plaintiffs' attorneys, I make the fol- N. Y. SUPREME COURT. lowing return to the within execu
TERM. FOURTH DEPT. tion: I have collected nothing un- The People, respts., v. Antonio der, and have not found any per- Rego, applt. sonal property out of which the
Decided May, 1885. said execution, or any part of the
If upon a trial for murder there is evidence, same, can be made, but I thereun
or inferences arising therefrom, which der levied upon the real estate
may bring the case within the crime of mentioned in the annexed notice manslaughter, the question whether the of sale, and have advertised the
crime was murder or manslaughter same for sale as in said notice pro
should be unequivocally submitted to the
jury. Reading the sections defining manvided. I have found no other prop- slaughter preceded by the remark that erty out of which to satisfy the the court does not see their applicability same.” The motion was opposed
to the case is error. upon an affidavit tending to show Appeal from judgment convictthat the execution should have been ing defendant of the crime of murreturned nulla bona.
der in the first degree.